Al Ghourani v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 74
•24 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Al Ghourani v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 74
File number(s): SYG 1224 of 2020 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 24 January 2025 Catchwords: MIGRATION – Judicial Review – whether Tribunal erred in finding that information given was false or misleading in a material particular – material particular – whether Tribunal failed to consider and give appropriate weight to evidence – absence of approved nomination – futility – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Amendment (Temporary Skills Shortage Visa Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth) cls 457.223 and 457.224 in Pt 457 of Sch 2; public interest criterion 4020 in Sch 4
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 236 FCR 593; FCAFC 184
Avala-Gurayya v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 217
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Kainth v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1629
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717
Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1708
Sood v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1057
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 26 November 2024 Place: Sydney Applicant In Person Representative for the Respondents Mr M. Gao of HWL Ebsworth Lawyers ORDERS
SYG 1224 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WASSIM AL GHOURANI
First ApplicantMARIAM EL ZAGHIR EP WASSIM AL GHOURANI
Second ApplicantSHAYMA AL GHOURANI (and others named in the Schedule)
Third ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
24 JANUARY 2025
THE COURT ORDERS THAT:
1.The application filed 25 May 2020 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE PAPADOPOULOS
INTRODUCTION
Before the Court is an application seeking judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal (Tribunal), made on 27 April 2020. By this decision, the Tribunal affirmed a decision made by a delegate (delegate) of the first respondent (Minister) on 30 June 2017 to refuse to grant a subclass 457 Business Entry (Class UC) visa (subclass 457 visa) to each applicant.
The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
For the following reasons, the application is dismissed.
BACKGROUND
The Minister helpfully summarised the background to the matter in their written submissions filed on 11 November 2020, which I primarily adopt.
The first applicant (applicant), a male national of Lebanon, lodged an application for a subclass 457 visa on 8 June 2016. The remaining applicants, being the applicant’s wife (second applicant) and children, were included as dependents in the first applicant’s subclass 457 visa application (collectively, the applicants).
On 30 June 2017, the delegate refused to grant the applicant a subclass 457 visa. The delegate was not satisfied that the applicant had met the requirements of public interest criterion 4020 (PIC 4020) in Schedule 4 to the Migration Regulations 1994 (Cth) (Regulations), and thereby found that cl 457.224 in Part 457 of Schedule 2 to the Regulations was not met.
The delegate found that the applicant had given or caused to be given to the Minister a bogus document and consequently found that the applicant did not meet PIC 4020(1).[1] The delegate observed that in support of the subclass 457 visa application, the applicant had provided an employment reference letter in English that was dated 23 May 2016 from Abdul Aziz M. Ajaj, Director of Al-Chamal Company in Lebanon (reference letter). This document was found to be bogus. Relevantly, the delegate noted that checks conducted by officers from the Australian Embassy in Beirut revealed inconsistencies between the reference letter and another letter in Arabic detailing information concerning the applicant’s employment with the company in Lebanon. The delegate formed the view that the reference letter had been altered from its original state and was fraudulent.
[1] Court Book (CB) 124.
The review application
On 19 July 2017, the applicant applied to the Tribunal for review of the delegate’s decision.[2]
[2] CB 148 – 149.
On 29 July 2019, the Tribunal wrote to the applicants inviting them to comment or respond to information pursuant to s 359A of the Act (first s 359A invitation).[3] The first s 359A invitation provided that Departmental information indicated the applicant was not the subject of an approved nomination, as the associated nomination application in respect of Mezza Plate Admin Pty Ltd ATF Mezza Plate Family Trust had been refused on 19 April 2018 and that this was relevant to the criteria for grant of a subclass 457 visa. It was further stated that legislative changes introduced by the Migration Amendment (Temporary Skills Shortage Visa Complementary Reforms) Regulations 2018 (Cth) (amending Regulations), which commenced on 18 March 2018, made it impossible for a new nomination application for approval to be made to support the 457 visa application. This information was relevant to the review as it suggested that the applicant was not, and could not become, the subject of an approved nomination.
[3] CB 183 – 186.
On 12 August 2019, the applicants responded to the first s 359A invitation and did not take issue with the Tribunal’s suggestion that the applicant was not, and could not become, the subject of an approved nomination. Relevantly, the representative made the following submission (reproduced below without alteration):
On 18 March 2018 the legislation pertaining to the 457 Visa applications and nominations was amended, that is one month before the refusal of Mezza Plate Admin pty Ltd nomination refusal and because of these amendments Mr Alghourani was caught in no man’s land if the expression fits as he did not have the time nor would he be able to ask Mezza to lodge a sponsorship and nomination under the new regulations as it would not be possible for him to lodge a visa application based on that.[4]
[4] CB 190.
On 5 November 2019, the applicant and second applicant attended a hearing before the Tribunal with the assistance of an interpreter in the Arabic and English languages.[5] As evinced by the Tribunal’s reasons, which are discussed in further detail below, the Tribunal took evidence from the applicant in relation to the reference letter, his employment history, his visa application history, and information he provided to the Department as part of two previously made Australian visa applications.[6] The second applicant, who was present during the hearing whilst the applicant gave evidence, was also provided with an opportunity to give evidence in relation to these matters. The applicant was also afforded an opportunity to make any comments he wished in response to the second applicant’s evidence.
[5] CB 333 – 334.
[6] CB 400 – 401 at [26] – [37].
Following the hearing, the Tribunal received copies of documents from the Department relating to two previous visa applications made by the applicant; a Visitor visa application made on 14 April 2008 and a Student visa application made on 9 May 2011.[7] On 23 January 2020, the Tribunal wrote to the applicants inviting them to comment or respond to information pursuant to s 359A of the Act (second s 359A invitation).[8] The second s 359A invitation set out the particulars of the information with respect to inconsistencies in the evidence regarding the applicant’s past employment as follows:
The particulars of the information are:
•On 14 April 2008 you applied for a visitor visa. In response to a question about your employment status, you indicated that you were a “Student” and you provided details of your current course as General Chemistry at the Lebanese University which you indicated you had been studying for 3 years. There was no information about your claimed employment with Al-Chamal Company in the visitor visa application.
•On 9 May 2011 you applied for a student visa. In the visa application form you provided information in relation to your past employment which indicated you were employed by Al-Amin Roasters Co. as a Distribution Officer from November 2008 to December 2009. A reference letter was provided by Al-Amin Roasters Corporation confirming your employment. There was no information about your claimed employment with Al-Chamal Company in the student visa application.
•At the hearing before the Tribunal on 5 November 2019, your spouse gave evidence to the Tribunal that you had not declared your claimed employment with Al-Chamal Company in your previous visa applications on the advice of your agent.
[7] CB 402 at [38]; and see CB 242 – 332.
[8] CB 338 – 339.
In response to the second s 359A invitation, the applicant submitted to the Tribunal that the two previous visa applications had been lodged by an agent on his behalf, and that he was unaware of the level of detail that was required for those applications.[9] The applicant denied hiding any information or intentionally providing false information, and stated that there were a number of factors that led to the current situation, including the lack of precision of his agents who had assisted him with his two previous visa applications, and the provision of false information to the Department by an accountant from the Al-Chamal Company who was unauthorised to provide information and did not have the correct dates at hand. The applicant also provided the Tribunal with registration and commercial documents pertaining to the Al-Chamal Company.
[9] CB 392.
On 27 April 2020, the Tribunal affirmed the decision of the delegate to refuse to grant the subclass 457 visas.[10]
[10] CB 396 – 410.
TRIBUNAL DECISION
In its decision, the Tribunal identified that there were two issues in the review:
(a)whether there was an approved nomination as required by sub-cl 457.223(4)(a) in Part 457 of Schedule 2 to the Regulations; and
(b)whether the applicant met PIC 4020 as required by cl 457.224 in Part 457 of Schedule 2 to the Regulations.[11]
[11] CB 398 at [13].
Requirement for an approved nomination
It was not disputed before the Tribunal that the applicant was not the subject of an approved nomination.[12] In relation to the absence of an approved nomination to support the applicant’s 457 visa application, the Tribunal:
(a)noted that the applicant applied for the visa on the basis of a nomination made by Mezza Plate Admin Pty Ltd ATF Mezza Plate Family Trust (Mezza Plate) which was refused by the Department on 19 April 2018, and that Mezza Plate did not apply for review of that refusal decision.
(b)recorded that the evidence before the Tribunal indicated that at the time of the nomination refusal, the applicant had ceased working for the nominator and was operating his own business.
(c)accepted the submissions of the applicants’ former representative that the legislative changes that came into effect on 18 March 2018 relating to subclass 457 visa applications and nominations, meant that the applicant was unable to rely on a new nomination to support his subclass 457 visa application.
(d)noted that the Tribunal had no discretion in relation to the matter of there being no approved nomination to support the visa application.
[12] CB 190.
The Tribunal concluded that as the applicant was not the subject of an approved nomination for the purposes of the subclass 457 visa, it followed that he did not meet the requirements of sub-cl 457.223(4)(a). It further observed that there was no evidence before the Tribunal to indicate that the applicant would be able to satisfy the criteria for any other streams that may give rise to the applicant otherwise meeting cl 457.223.
Public interest criterion 4020
The Tribunal identified the requirements of PIC 4020(1),[13] and outlined the evidence before it in relation to the reference letter, the checks conducted by the Department and the applicant’s explanation for the inconsistencies that had been detected.[14] The Tribunal outlined in detail the oral evidence provided by the applicant, and the second applicant, at the hearing in relation to the reference letter and the applicant’s previous visa applications.[15] It also noted the applicants’ submissions in relation to PIC 4020 that had been provided in response to the second s 359A invitation.[16]
[13] CB 398 – 399 at [16] – [18].
[14] CB 399 – 400 at [20] – [25].
[15] CB 400 – 402 at [26] – [37].
[16] CB 403 at [42] – [48].
In considering whether the Tribunal was satisfied that there is ‘no evidence’ that the applicant had given or caused to be given a bogus document, as defined in s 5(1) of the Act, the Tribunal:
(a)found that it was not in dispute that the applicant had given, or caused to be given, documents and information in support of his claim to have been employed with Al-Chamal Company as a Supply and Distribution Manager from February 2006 to December 2009.[17]
(b)accepted that the reference letter which had been obtained with the assistance of the applicant’s brother, was issued with the authority of Al-Chamal Company and signed by, or on behalf of, one of its directors.[18]
(c)did not consider that the reference letter was counterfeit or altered by a person that does not have authority.[19]
(d)considered that the reference letter was willingly issued by Al-Chamal Company and endorsed by one of its directors, Mr Abdul Aziz Ajaj, in his letter dated 3 March 2017 to the Department, and was therefore not obtained because of a false or misleading statement.[20]
(e)was satisfied that the reference letter did not fall within any of the categories of the definition of ‘bogus document’ in s 5(1) of the Act.[21]
[17] CB 404 at [51].
[18] CB 404 at [56].
[19] CB 404 at [56].
[20] CB 404 at [57].
[21] CB 405 at [57].
In considering whether there was evidence that the applicant had given, or caused to be given, to the Minister information that is false or misleading in a material particular in relation to his subclass 457 visa application, the Tribunal:
(a)found that inconsistencies in the evidence regarding the applicant’s dates of employment raised considerable doubt over whether the applicant had been employed by Al-Chamal Company as a Supply and Distribution Manager for a period of over three and a half years.[22]
(b)noted that the reference letter, and the description of the responsibilities of the applicant’s role, suggested that the applicant undertook a substantial operational role. The Tribunal, therefore, found it ‘somewhat concerning’ that Mr Ajaj did not provide consistent information about the applicant’s dates of employment with Al-Chamal Company.[23]
(c)considered that if the applicant had been genuinely employed at Al-Chamal Company, then Mr Ajaj’s evidence about the applicant’s period of employment would have been consistent.[24]
(d)considered the oral and written evidence provided by Al-Chamal Company and one of its directors regarding the applicant’s claimed employment to be unreliable.[25]
Therefore, the Tribunal was not satisfied that the applicant had been employed as a Supply and Distribution Manager from February 2006 to December 2009 with Al-Chamal Company as claimed.[26]
[22] CB 405 at [61].
[23] CB 405 at [61].
[24] CB 405 at [62].
[25] CB 405 at [63].
[26] CB 405 at [63].
In relation to the applicant’s previous visa applications, the Tribunal considered it highly significant that there was no mention of his employment with Al-Chamal Company in previously lodged visa applications. The Tribunal:
(a)recorded the second applicant’s response to the Tribunal’s query about whether the employment with both companies was declared in previous applications, whereby she stated that the applicants’ agent advised them to only declare the applicant’s part time employment with Al-Amin Roasters.[27]
(b)found it ‘somewhat difficult’ to accept that the agent would have advised the applicant to purposefully withhold information regarding his full-time employment but to declare information about his part-time employment despite the relevant question requesting the applicant to declare all his employment history.[28]
[27] CB 406 at [67].
[28] CB 406 at [68].
Having regard to the applicants’ explanations provided in their post hearing submissions and response to the second s 359A invitation, the Tribunal, in relation to the Visitor visa application, found it difficult to accept that the applicant would not have been asked by the travel agent to provide full details of his employment in Lebanon as that would have strengthened his Visitor visa application by way of bolstering the evidence to demonstrate the applicant’s ties to Lebanon.[29]
[29] CB 407 at [69].
In relation to the registration and commercial documents for Al-Chamal Company which the applicant provided by way of response to the second s 359A invitation, the Tribunal found that the applicant’s submission of these did not indicate he genuinely undertook the employment claimed with that company in Lebanon.[30]
[30] CB 407 at [70].
The Tribunal did not consider that the applicant’s employment in Australia necessarily proved that he was employed with Al-Chamal Company in Lebanon as claimed.[31] Rather, the Tribunal considered that the applicant’s claimed employment with Al-Chamal Company, including the reference letter provided with the subclass 457 visa application, had been contrived for the purpose of assisting the applicant with his application for a temporary work visa in the nominated occupation of Supply and Distribution Manager.[32]
[31] CB 407 at [71].
[32] CB 408 at [73].
Therefore, the Tribunal was not satisfied that there was no evidence that the applicant had given or caused to be given to the Minister, information in relation to his subclass 457 visa application that was false or misleading regarding his claimed employment as a Supply and Distribution Manager with Al-Chamal Company in Lebanon.[33]
[33] CB 408 at [74].
Having found that the information provided regarding the applicant’s claimed employment was false or misleading at the time it was given, it then proceeded to find that this information was relevant to the criteria in sub-cls 457.223(4)(da) and (e) for the grant of the temporary work visa which required the applicant to demonstrate he had the skills, qualifications and employment background necessary to perform the nominated occupation.[34] On this basis, it concluded that the information was relevant in a material particular: see PIC 4020(1) and (5).
[34] CB 408 at [75].
The Tribunal was also not satisfied that the requirements of PIC 4020(1) should be waived and subsequently found that the applicant did not satisfy PIC 4020 for the purpose of cl 457.224.[35]
[35] CB 409 at [87].
Tribunal’s conclusion
Having found two bases upon which the applicant did not meet the criteria for grant of a subclass 457 visa, the Tribunal affirmed the decision not to grant him a subclass 457 visa. As the applicant did not meet the requirements for grant of the subclass 457 visa, it followed that the decisions in relation to the remaining applicants were also affirmed by the Tribunal.[36]
[36] CB 410 at [93] – [95].
RELEVANT LAW
The relevant provisions of the Regulations are as follows:
Schedule 2 – Provisions with respect to the grant of Subclasses of visas
457.223
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75;
…
(da) the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e) if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation—the applicant demonstrates that he or she has those skills in the manner specified by the Minister;
457.224
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4006A, 4010, 4013, 4014, 4020 and 4021.
Schedule 4 – Public Interest Criteria and Related Provisions
PIC 4020
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
…
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note: For the definition of bogus document, see subsection 5(1) of the Act.
PROCEEDINGS IN THIS COURT
The originating application, filed in this Court on 25 May 2020, was filed without page 3 of the application and thereby omitted any grounds of review. By an amended application filed on 21 October 2020, the applicant raised five grounds of review (reproduced below without alteration):
1. While I appreciate the length decision of the Tribunal, the Tribunal weighs against my application because of the reference from Lebanon which was not accepted as genuine.
2. The Tribunal concentrated on Al Chamal company reference and failed to consider and weigh my current business which beyond doubt should lead to my ability to work efficiently and successfully as a person with past experience as Supply and Distribution Manager. The current business WG Food Distribution Pty Ltd should cast away any doubt about my credibility and previous experience. The Tribunal should accept that there is some value in establishing a business in Australia and to cast doubt about my previous employment prospects and therefore the Tribunal assessment is not realistic and based is not based on probative evidence.
3. While the Tribunal accepted that I am a victim of changes that came into effect on 18 March 2018 relating to 457 visa applications and nominations, the Tribunal failed to consider employing Australians with WG Food Distribution Pty Ltd is in itself compelling which was ignored and not considered as compelling by the Tribunal.
4. I continue to believe that public interest criteria 4020 should not affect my application and should be waived because the reference is genuine and my experience cannot be in doubt.
5. I finally wait for the documents to be provided to provide more particulars in support of my judicial review.
As above, the Minister filed written submissions in this matter on 11 November 2020. During the hearing before this Court on 26 November 2024, the applicant handed up written submissions and the following documents:
(a)Balance Sheet for WG Food Distributors Pty Ltd as of 30 June 2023;
(b)Tax return for WG Food Distributors Pty Ltd for the financial year ending 2023; and
(c)an unaudited profit and loss statement for WG Food Distributors Pty Ltd for the year ending 30 June 2023.
The Minister did not object to the above documents being accepted into evidence subject to relevance. In circumstances whereby each of the documents handed up post-date the Tribunal’s decision, and were not before the Tribunal, they are not relevant to my consideration of the applicants’ grounds of review.
At the conclusion of the hearing in this matter, I made orders requesting the parties to file and serve supplementary written submissions addressing the propriety of Tribunal’s findings that the applicant provided false and misleading information in a material particular and the issue of futility. The Minister filed supplementary submissions on 28 November 2024. The applicants’ provided a written statement in reply to those supplementary submissions on 5 December 2024. Where relevant, these submissions are addressed below.
CONSIDERATION
In his written submissions, the Minister helpfully categorises the applicants’ grounds of review as follows:
·By Grounds 1 and 4, the applicants take issue with the Tribunal’s assessment of the reference letter as not being a genuine document. The applicant asserts that PIC 4020 should not affect his application and should be waived.
·By Ground 2, the applicants allege that the Tribunal failed to consider and give weight to the applicant’s current business operations.
·By Ground 3, the applicants allege that the Tribunal failed to consider the compelling circumstances of the applicant’s employment of Australians, in the context of the legislative changes which came into effect on 18 March 2018 relating to subclass 457 visa applications.
·By Ground 5, the applicants state that they await documents to be provided so that they can provide more particulars in support of their application.
For the purposes of my consideration, I adopt the Minister’s categorisation of the grounds.
Grounds 1 and 4
In relation to Grounds 1 and 4, the applicants submit that the applicant had provided all the relevant documents to demonstrate that he ‘did not deserve the findings under PIC 4020’.
The Minister submits that the Tribunal correctly carried out its required assessment of the applicant’s evidence in relation to the criteria in cl 457.224 of the Regulations and PIC 4020.
The Minister submits that insofar as the applicants assert that the reference letter was a genuine document, the Tribunal, unlike the delegate, did not find the reference letter to be a bogus document. Rather, the Tribunal considered that the applicant had provided information that was false or misleading with respect to his employment with Al-Chamal Company.[37] The Minister submits that the Tribunal’s conclusions were open to it based upon the evidence before it, including:
(a)the reference letter;
(b)the verification checks conducted by the overseas post in Beirut;[38] and
(c)the absence of the mention of the applicant’s employment with Al-Chamal Company in two previous visa applications, a matter the Tribunal considered was ‘highly significant’, given his ‘substantial operation role’ with the company and that the visa applications were made at a time during which the applicant claimed to be employed by that company.[39]
[37] CB 405 at [74].
[38] CB 405 at [60].
[39] CB 405 – 406 at [60] – [61] and [64] – [68].
The Minister further submits that the Tribunal found that the information was false and misleading with respect to the applicant’s ability to meet sub-cls 457.223(da) and (e). The Minister submits that delegates and the Tribunal, when considering these clauses, must have regard to the Department’s Procedures and Advice Manual (PAM3): see Avala-Gurayya v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 217 (Avala-Gurayya) and Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1708 (Sharma). In the applicant’s case, it was not necessary for the Tribunal to conduct an assessment of his ability to meet sub-cl 457.223(4)(da). Rather, the Tribunal was only required to establish that the false and misleading information had been provided in relation to the applicant’s attempt to meet this criterion.
During the hearing before this Court, the Minister tendered as evidence the occupational classification for Supply, Distribution and Procurement Managers set out in the ANZSCO - Australia New Zealand Standard Classification of Occupations, 2013, Version 1.3 Guide (ANZSCO). This was accepted into evidence as Exhibit 2R. The Minister submits that the Tribunal’s summary of the indicative skill level required at [35] of its reasons is consistent with the information in the relevant ANZSCO classification. The Minister refers to PAM3 and submits that it requires the decision-maker to consider a person’s formal qualifications, the nature of the qualification, and their level of experience. The Minister acknowledges that PAM3 was not specifically referenced by the Tribunal but submits that it underpins the Tribunal’s analysis at [35] of its decision.
I accept the Minister’s submissions in relation to these two grounds. The Tribunal’s conclusion that the reference letter contained false or misleading information rested upon its findings that the director of Al-Chamal Company was both ‘too willing to assist’ the applicant,[40] and had provided inconsistent information to the Department about the applicant’s employment,[41] along with the fact that the applicant had failed to declare his employment with Al-Chamal Company as part of two previous visa applications. In my view, these findings were open to the Tribunal on the available material before it and there was nothing illogical or unreasonable in the Tribunal’s conclusion that the information regarding the applicant’s employment with Al-Chamal Company was false or misleading: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130] – [131].
[40] CB 404 at [55] and 407 at [70].
[41] CB 405 at [61].
Furthermore, in determining whether the information was relevant in a material particular for the purposes of PIC 4020(1), the Tribunal clearly identified that the applicant would need to demonstrate he had completed at least five years’ relevant work experience as he did not possess a bachelor or higher degree qualification.[42] This work experience requirement is consistent with the indicative skill level specified for the occupational classification of Supply and Distribution Manager in ANZSCO, a matter which regard is to be had, according to PAM3, when determining whether a person meets the criteria in sub-cls 457.223(4)(da) and (e). As submitted by the Minister, in cases involving consideration of these matters, the Tribunal is required to have regard to relevant Departmental policy in PAM3: see Avala-Gurayya and Sharma. The Tribunal’s reasons at [35] disclose its consideration of the applicable ANZSCO skill level, as required by PAM3, relevant to any potential consideration of the applicant’s ability to meet sub-cls 457.223(4)(da) and (e), criteria which may be considered when making a decision on the application: see PIC 4020(5)(b). Accordingly, the Tribunal detailed a sound basis upon which to rest its finding that the information in relation to the applicant’s work experience with Al-Chamal Company was relevant in a material particular.
[42] CB 401 at [35].
In these circumstances, there is no error in the Tribunal’s finding that the applicant provided false or misleading information in a material particular in relation to the subclass 457 visa application. Accordingly, jurisdictional error is not made out by either of these grounds.
Ground 2
In relation to Ground 2, the applicants request the Court to give ‘compassionate consideration’ for the purposes of the waiver in PIC 4020(4), on the basis that the applicant has established a business in Australia that operates in the same ‘domain’ as his subclass 457 visa application. The applicants allege that the Tribunal failed to consider and give weight to the applicant’s Australian business operations in this context.
The Minister submits that:
(a)the Tribunal, in its decision, outlined the size and operations of the applicant’s Australian business and found that, even if accepted that the business employed Australian citizens, given the size and operation of that business the Tribunal was not satisfied that this established a relevant compassionate and compelling circumstance for the purposes of the waiver in PIC 4020(4).[43]
(b)the choice of weight to be given to the evidence is a matter exclusively for the Tribunal, see Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 236 FCR 593; FCAFC 184 at [46]. To the extent that the applicants contend the evidence of the applicant’s business activities in Australia should have been used to counterbalance any doubts over his experience and the credibility over his employment history, the Minister submits that this is an invitation for the Court to engage with impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6.
(c)the Tribunal correctly went on to consider the waiver provisions within PIC 4020(4), having regard to the applicant’s oral evidence and his response to the s 359A invitations. The Minister submits that the applicants’ mere contention that PIC 4020 should be waived raises no error on behalf of the Tribunal other than a disagreement with the conclusions drawn.
[43] CB 409 at [83] – [85].
I accept the Minister’s submissions in relation to this ground. The Tribunal was clearly aware of the applicant’s claims and evidence, and properly considered that material when making its findings. It was open to the Tribunal to accord weight to the applicant’s evidence pertaining to his Australian business operations as part of its assessment against the waiver requirements in PIC 4020(4).
No jurisdictional error arises in this regard.
Ground 3
In relation to Ground 3, the applicants allege that the Tribunal failed to consider the compelling circumstances of the applicant’s employment of Australians in the context of the legislative changes relating to subclass 457 visa applications which came into effect on 18 March 2018.
The Minister submits that the Tribunal properly understood the applicant’s evidence in relation to his employment of Australians but found that it had ‘no discretion in these cases’ and that one of the requirements for the grant of the visa was a current approved nomination.[44] In the absence of an approved nomination, the Tribunal’s finding in relation to cl 457.223(4) was the only one available to it and the conclusion that the applicant was unable to meet sub-cl 457.223(4)(a) was inevitable. The Tribunal had no obligation or scope to consider any compelling circumstances in relation to this criterion, and therefore there was no error established on this basis.
[44] CB 410 at [91].
Furthermore, the Minister argues that the Tribunal’s finding at [90] is correct given the amending Regulations make it impossible for the applicants to obtain a new approved nomination under s 140GB as required for a subclass 457 visa: see Kainth v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1629 at [45] (Kainth).
I agree with the Minister’s submissions and conclude that jurisdictional error does not arise in relation to this ground.
Ground 5
In relation to Ground 5, the applicants allege that they have been unable to fully particularise their application before this Court because they await receipt of further documents. The Minister contends that the applicants were served with a copy of the Court Book on 26 August 2020.
I confirmed with the applicant at hearing that he did in fact receive a copy of the Court Book filed for the Minister on 26 August 2020.[45]
[45] Transcript p 7 at [35] – [45].
In my view, the circumstances of this case do not give rise to there being jurisdictional error as contended by way of this ground. The applicants have been provided with ample opportunity to particularise their grounds of review, having been served with a copy of the Court Book on 26 August 2020.
Futility
In addition, as submitted by the Minister, it would be futile for this matter to be remitted to Tribunal. The absence of an approved nomination would mean that, even if the matter were remitted, the Tribunal would not be able to come to any different view. The Minister argues that the Tribunal’s finding that the applicant did not satisfy sub-cl 457.223(4)(a) is unimpeachable, and that there is no jurisdictional error in the Tribunal’s decision because the Tribunal would have no option but to affirm the decision: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [35].
For the same reason, the Minister argues that even if a jurisdictional error could be found within the Tribunal’s decision (although not conceded by the Minister), relief should be withheld because if the matter were remitted to the Tribunal it would inevitably be affirmed on the same basis: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717 at [143].
I agree with the Minster that a consequence of the repeal of the subclass 457 visa scheme, following the passage of the amending Regulations, is that it would be impossible for an employer to seek approval for a nomination for a prospective 457 visa holder, and subsequently it is impossible for the applicant to find a new sponsor under that scheme: see Kainth at [45]. Therefore, even if I had found jurisdictional error in this case (which I do not), it would be futile to remit the matter as a newly constituted Tribunal would be bound to affirm the decision under review as the applicant would be unable to satisfy sub-cl 457.223(4)(a) based on the original nomination or a new nomination: Sood v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1057 at [10] per Perram J.
As was submitted by the Minister, the foregoing constitutes a sufficient basis for the application to be dismissed.
CONCLUSION
Therefore, for the above reasons, the application before this Court is dismissed.
I will hear the parties as to costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 24 January 2025
SCHEDULE OF PARTIES
SYG 1224 of 2020 Applicants
Fourth applicant
RAYHANA AL GHOURANI
Fifth applicant
JOURY AL GHOURANI
0
11
3