Ali v Minister for Immigration

[2020] FCCA 797

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 797

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Temporary Business Entry (Class UC) visa – whether the Tribunal complied with the statutory obligations in the conduct of the review – whether the Tribunal took into account relevant considerations – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476
Migration Regulations 1994 (Cth), cls.457.223, 457.321, sch.2

Applicant: MUBASSAR ALI

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 305 of 2017

Judgment of: Judge Street

Hearing date: 7 April 2020

Date of Last Submission: 7 April 2020

Delivered at: Sydney

Delivered on: 7 April 2020

REPRESENTATION

The Applicant appeared in person via video link.

Solicitors for the Respondents: Mr M Sunits via video link
Australia Government Solicitor

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The proceedings will be recorded by Microsoft on Microsoft Teams and by Auscript on the Judge’s microphone and no other recording of the hearing is to be made.

3. A link to the Microsoft Teams recording will be uploaded to the “Transcript” folder on the Electronic Court File and may be made available to the parties and any member of the public provided that no recording of the same is made in breach of Order 2 above.

4. The oral application for an adjournment is dismissed.

5. Leave is granted to the applicant to rely upon the amended application filed on 29 September 2017.

6. The amended application is dismissed.

7. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 7 April 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 305 of 2017

MUBASSAR ALI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 May 2017 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Temporary Business Entry (Class UC) visa (“Temporary Business visa”).

2. The applicant is a citizen of Pakistan. On 9 March 2015, the applicant applied for a Temporary Business visa.

3. On 18 February 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Temporary Business visa.

4. On 17 July 2016, the applicant applied for review of the Delegate’s decision. The applicant was invited to and attended a hearing before the Tribunal on 24 April 2017 to give evidence and present arguments.

5. The Tribunal found that a mandatory criteria in respect of the requirements for the grant of the Temporary Business visa had not been met in respect of the existence of an approved nomination.

6. The Tribunal referred to the relevant requirements of cl.457.321 at sch.2 of the Migration Regulations 1994 (Cth) (“the Regulations”) and, in particular, in circumstances whether the applicant met the requirements of cl.457.223(4)(a) of the Regulations.

7. It is apparent from the Tribunal’s reasons that the Tribunal raised with the applicant in the course of the hearing the need for an approved nomination. The Tribunal noted that, on the evidence, there was no approved nomination in respect of the sponsor. In these circumstances, the Tribunal found that the requirements of cl.457.223(4)(a) of the Regulations were not met.

8. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 9 June 2017.

2. On 4 November 2019, orders were made by the Court fixing the matter for hearing today. On 30 March 2020, further orders were made facilitating the hearing by Microsoft Teams software.

3. On 1 April 2020, the applicant filed an affidavit seeking an adjournment on the basis of the difficulties in obtaining a lawyer in relation to steps he had taken since March 2020. The applicant referred in that regard to the impact of the coronavirus.

4. The Court raised with the applicant why he had not had ample opportunity to obtain a lawyer, given the proceedings were commenced on 9 June 2017. The applicant’s response does not provide any satisfactory explanation as to why he had not been able to obtain a lawyer if, in fact, he was able to obtain one.

5. The steps taken since March 2020 do not reflect an appropriate attendance to the issues in respect of proceedings which the applicant had brought forward in June in terms of obtaining a lawyer. The Court does not regard the applicant’s explanation for the adjournment as satisfactory. In these circumstances, where the adjournment was opposed, the Court is of the view that the applicant has had ample opportunity to obtain legal representation if he was able to do so.

6. The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. It is for these reasons that the application for an adjournment was refused.

7. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

8. From the bar table, the applicant referred to the seeking of another visa in relation to the circumstances surrounding his pursuit of these proceedings. Nothing said by the applicant from the bar table identified any basis upon which it could be said the Tribunal’s decision was the subject of jurisdictional error.

Grounds in the Amended Application

1. The grounds in the amended application are as follows:

   The tribunal erred in concluding that the application for Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act) lodged on 9 March 2015 was current and ongoing. The application was finalised by the delegate of the Department of Immigration and Border Protection on 5 July 2016. Administrative Appeals Tribunal is independent and does not work for the Department of Immigration and Border Protection. The tribunal was only reviewing the application that had already been completed and finalised by the delegate.

   2. The caveats that apply by the operation of IMMI 17/040 should only apply to all current applications being processed by the Department of Immigration and Border Protection, regardless of the date of application; and should not apply to the applications being reviewed by Administrative Appeals Tribunal if the applications were finalised by the delegate before the changes to the Subclass 457 visa regime were introduced. If the Department of Immigration and Border Protection is given power to introduce changes in any visa regime that can influence applications being reviewed by the Administrative Appeals Tribunal, it would fail the purpose of the existence of the Administrative Appeals Tribunal and render it ineffective. This is against fairness and justice.

   3. The delegate refused the nomination application because it was not satisfied that the nominating employer envisaged the position to actually perform the duties and responsibilities expressed in the submitted job description. However, on the contrary, the Tribunal found that the nominating employer does envisage the position to actually perform the duties and responsibilities expressed in the submitted job description. Thus, the Tribunal had indeed decided in favour of the applicant but its decision was interfered by the changes introduced by the Department of Immigration and Border Protection. Therefore, the applicant begs this court to quash the decision made by the Tribunal and direct it to review it based on the laws that existed on 5 July 2016 when the delegate finalised the application.

Ground 1

1. In relation to ground 1, it is apparent that the Tribunal conducted a review in accordance with the statutory requirements and that that was an independent review in respect of which the Tribunal made its own findings in relation to the application for the Temporary Business visa. There is no basis to find that the Tribunal failed to comply with its statutory obligations in the conduct of the review.

2. On the material before the Court, the Tribunal complied with its statutory obligations in inviting the applicant to attend a hearing and, on the face of the Tribunal’s reasons, the applicant had a real and meaningful hearing and the Tribunal raised with the applicant the issue of concern in respect of the absence of an approved nomination.

3. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant seeks to raise an issue relevant to the application by the sponsor for approval and the requirement for the sponsor’s business to have a turnover of not less than $1 million. That provision, pursuant to IMMI 17/040, is not the issue in the present case. However, on the face of the material before the Court, the Tribunal was entirely correct in understanding that the sponsor had to meet that requirement by reason of IMMI 17/040.

2. The relevant issue in the present case, as the first respondent pointed out, was whether or not the applicant had an approved nomination. It is clear that the applicant did not.

3. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, this reflects a disagreement with the adverse finding in respect of the requirements for an approved nomination and does not identify any basis to find there is any jurisdictional error.

2. No jurisdictional error is made out by ground 3.

3. No jurisdictional error is made out by the amended application. Accordingly, the amended application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 7 April 2020

Associate:  

Date:  21 April 2020