Al Hamid and Ors v Minister for Immigration and Anor (No.2)

[2016] FCCA 2852

FEDERAL CIRCUIT COURT OF AUSTRALIA

AL HAMID & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 2852

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Subclass 457 Temporary Work (Skilled) visas – whether the Tribunal was correct in finding that the Tribunal did not have jurisdiction – whether the Tribunal afforded the applicant procedural fairness – no jurisdictional error identified – application dismissed. 

Legislation:

Migration Act 1958 (Cth), ss.140E, 140GB, 338, 476

Migration Regulations 1994, reg.4.02, 457.223, 457.321
Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)(a), 44.12

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

First Applicant: MAIDA AL HAMID

Second Applicant: ABDUL AL HAMID

Third Applicant: MUCHAMMAD SADIQ AL HAMID

Fourth Applicant: AMINAH AL HAMID

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1555 of 2016

Judgment of: Judge Street

Hearing date: 4 November 2016

Date of Last Submission: 4 November 2016

Delivered at: Sydney

Delivered on: 4 November 2016

REPRESENTATION

Counsel for the Applicant: Mr P McCarthy

Solicitors for the Respondents: Ms A Wong
Mills Oakley Lawyers

ORDERS

1. The application in a case is dismissed.

2. The First, Second, and Third Applicants pay the First Respondent’s costs fixed in the amount of $1,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1555 of 2016

MAIDA AL HAMID

First Applicant

ABDUL AL HAMID

Second Applicant

MUCHAMMAD SADIQ AL HAMID

Third Applicant

AMINAH AL HAMID

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act  1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 June 2016 affirming the decision of the delegate made on 8 March 2016, to refuse to grant a Subclass 457 Temporary Work (Skilled) visa to the primary applicant, being the first applicant in these proceedings, and the wife of the second applicant and parent with the second applicant of the third and fourth applicants.

2. The first applicant is a national of Indonesia, and applied for the Subclass 457 Temporary Work (Skilled) visa on the basis of a nomination by the sponsor Zampelle’s Pty Ltd. 

The Delegate’s Decision

1. The delegate identified the criteria for the grant of a visa under subclause 457.223(4)(a) of the Migration Regulations 1994 (“the Regulations”).

2. The delegate identified that on 9 December 2015, the sponsor withdrew the sponsorship application. The delegate noted that on 11 December 2015 the first applicant was given an opportunity to either provide comments on his intentions regarding the visa application, including providing evidence that he is the subject of an approved nomination, or withdraw the application. The delegated noted that the first applicant had provided no response to that invitation.

3. The delegate found the first applicant was not the subject of an approved nomination, and therefore did not satisfy the requirements of subclause 457.223(4)(a) of the Regulations.

4. The delegate found that the first applicant did not meet the secondary criteria for the grant of the visa in relation to the other applicants. The other applicants relied upon being members of a family unit of a person who, having satisfied the primary criteria, is the holder of subclass 457 visa. The delegate found that the requirements of cl.457.321 of the Regulations were not met in relation to the alleged members of the family unit.

The Tribunal’s Decision

1. On 23 March 2016 the applicants applied for review. On 8 March 2016 the Tribunal wrote to the applicant identifying the Tribunal’s concern in relation to there being no rights of review in the circumstance of the present case in the absence of a nomination that identifies the first applicant being lodged with the Department and the absence of the first applicant being the subject of an approved nomination.

2. On 7 April 2016, the Tribunal wrote to the applicants informing the applicants of the Tribunal’s concern that the application for review is not valid. The Tribunal’s letter drew attention to the fact that at the time of the review application being lodged, the first applicant was not identified in a nomination under s.140GB of the Act that was approved or pending. The Tribunal noted there was no pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E, or a decision not to approve the nomination under s.140GB of the Act. The Tribunal provided the applicants with an opportunity to make comments as to whether the application was valid.

3. On 8 April 2016, the file note records that the first applicant alleged he had spoken to a lawyer who would provide a response on 20 April 2016.

4. A letter from the first applicant to the Tribunal dated 20 April 2016 suggested that the sponsor was not cooperating and had not provided the relevant document at that time. It is apparent from the letter that the first applicant fully appreciated that there was no sponsor at the time of sending the letter on 20 April 2016. No further information was provided by the first applicant to the Tribunal.

5. On 2 June 2016, the Tribunal proceeded to consider whether the application was valid. The Tribunal noted that the delegate’s decision record which was provided by the applicants to the Tribunal, records that after the visa application was lodged on 19 August 2015, the first applicant’s sponsor, Zampelle’s Pty Ltd, withdrew their sponsorship on 9 December 2015.

6. The Tribunal noted that the Department wrote to the applicants, providing the applicants an opportunity to comment on this information and that the applicants did not respond. The Tribunal found there is no evidence before it, that at the time a review application was lodged the first applicant was identified in a nomination under s.140GB of the Act that was approved or pending.

7. The Tribunal referred to writing to the applicants inviting them to comment on whether the application was valid. The Tribunal referred to the applicants responding that the sponsor was not cooperating.  No further step was taken by the applicants to address the want of a sponsor. 

8. The Tribunal found there was no documentary evidence before the Tribunal that, at the time the application for review was lodged, the first applicant was identified in the nomination under s.140GB of the Act that was approved or pending. Nor, was there a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E of the Act, or a decision not to approve the nomination under s.140GB of the Act.

9. The Tribunal found that at the time the application for review was lodged on 23 March 2016, the first applicant was not identified in a nomination that was approved or pending, and there was not a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E of the Act, or a decision not to approve the nomination under s.140GB of the Act.

10. The Tribunal found that the requirements of s.338(2)(d) of the Act were not met. The Tribunal found that the decision to refuse the applicants Subclass 457 Temporary Work (Skilled) visas was not reviewable in accordance with s.338(2)(d) of the Act or under any of the other subparagraphs of s.338 and reg.4.02(4) of the Regulations.

11. The Tribunal concluded the decision was not reviewable, and that the Tribunal did not have jurisdiction in the matter. 

Proceedings Before this Court

1. The application in this Court identified the following grounds:-

   1. The whole of the judgment of the Federal Circuit Court of Australia given on 7 October 2016 at Sydney must be set aside, as well as reinstatement of application (File No: SYG 155512016)   be sought due to the following reasons:

   1.1 Federal Circuit Court has dismissed, on a first direction hearing day, my application summarily without proper consideration whilst it is obvious that MRT has made a mistake and improperly considered my case in many different aspects. I have been deprived of being considered in full at full hearing, or at least show cause hearing at Federal Circuit Court.

   I have instructed my counsel to make an appearance at the hearing of my case in the court and paid him the full amount of his fee. I attach the receipt for my payment of the fee.

   However, for some reason incomprehensible to me, my counsel failed to make them appearance and failed to submit my case to the court. He failed me and failed the court.

   1.2 I am confident that if my case was heard by the court, the court must have granted my appeal.

   1.3 I have done nothing wrong and I believe I am entitled to have a fair hearing and right judgement.

   For the above reasons, I file this application in a case and pray the court grant favourable decision.

   (Errors in the original)

Show cause hearing – 7 October 2016

1. The matter was listed before this Court on 7 October 2016 for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001. The applicant had failed to appear on that date and the applicant’s application was dismissed, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 on 7 October 2016.

Interlocutory application – 20 October 2016

1. On 20 October 2016, the applicant filed an interlocutory application seeking an order under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 for the Court to set aside the orders earlier made. In support of the application, the applicant relied upon an affidavit. However, beyond a generalised assertion about having Counsel instructed to appear, the applicants failed to identify any adequate or satisfactory explanation for the applicants’ failure to appear on the earlier hearing date. 

Hearing of Interlocutory application – 1 November 2016

1. That application in a case was listed for hearing on 1 November 2016, and the applicants failed to appear.  The Court is not persuaded that the applicants were not aware of the hearing on 1 November 2016 on the evidence before it, as the email address was an email address amongst the material that was provided in the court book on behalf of the applicants. 

Hearing of Interlocutory application – 4 November 2016

1. Be that as it may, the Court stood the matter over for hearing today on 4 November 2016. Counsel on behalf of the applicant appeared at 2:15pm and sought an adjournment on the basis of only having recently received instructions the night before and on the basis of not having seen certain parts of the court material.  The Court provided to Counsel for the applicant the material that was identified that Counsel had not seen, and an opportunity was given to counsel to read that material. 

2. Prior to the expiry of that time for reading that material, Counsel for the applicant indicated to the Court that Counsel was ready to proceed and maintained and pressed the application for an adjournment. No arguable ground of jurisdictional error was able to be identified by Counsel for the applicant.

3. The Court raised with Counsel for the applicant, that it had to be satisfied there was a satisfactory explanation for the delay or at least for the failure to appear as well as the merits of the application in terms of there being a reasonably arguable case. The grounds in the application fail to identify any arguable case of jurisdictional error. 

4. Beyond an eloquent entreaty to permit Counsel the opportunity to confer with his client and the potential language barrier that he faced, nothing was said by Counsel identified any satisfactory explanation for the failure of the applicant to appear. 

5. Further, nothing was pointed to that could identify any potential arguable question of law that would give rise to any utility in setting aside the order earlier made.

Conclusion

1. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. No arguable case of jurisdictional error has been identified in the material before the Court. The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. The Court is of the view that an adjournment would only unnecessarily add to the costs of the parties and utilise limited Court time.

2. The Court is not persuaded that there is any sufficient argument to warrant a setting aside of the order made on 7 October 2016 in the interests of the administration of justice. On the material before the Court, the Tribunal was correct in finding that it did not have jurisdiction. That was a finding of fact which was open to the Tribunal and that arose from a finding of fact that was open to the Tribunal as identified in the Tribunal’s reasons.

3. Further, it is apparent that the Tribunal complied with the requirements of procedural fairness in giving the applicant an opportunity to comment on the issue of whether the Tribunal had jurisdiction.  There was no meaningful response by the applicants in that regard.

4. No arguable case of relevant error is apparent from the material before the Court, and none has been pointed to by Counsel for the applicants. 

5. The application in a case is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 November 2016