ALI v Minister for Immigration
[2017] FCCA 3145
•28 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3145 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – no proper grounds of review – no arguable case – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.57, 140GB, 338, 359, 359C, 360, 363A. Migration Regulations 1994 (Cth), sch.2, cl.457.223, 457.321. |
| Cases cited: Hasran v Minister for Immigration and Citizenship[2010] FCAFC 40. Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301. Kandel v Minister for Immigration and Another [2015] FCCA 2013. SZASP v Minister for Immigration and Citizenship [2007] FCA 771. |
| First Applicant: | ZAHID ALI |
| Second Applicant: | HEMAVATHY POLUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1574 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 28 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 28 November 2017 |
REPRESENTATION
| The Applicants: | In Person |
| Solicitor acting as Counsel for the First Respondent: | Ms Stone |
| Solicitors for the First Respondent: | DLA Piper |
ORDERS
Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1574 of 2016
| ZAHID ALI |
First Applicant
| HEMAVATHY POLUR |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application filed on 25 July 2016 seeking relief in the form of constitutional writs against the decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 24 June 2016. In that decision, the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the First Applicant a Temporary Business Entry (Class UC) visa (‘the visa’).
History
This history derives from the First Respondent’s submissions and materials in the Court Book which are in evidence before the Court.
On 18 November 2014, the visa Applicants applied for the visa.
The associated nomination application lodged by the First Applicant’s sponsor, Supple Solutions Proprietary Limited (‘Supple Solutions’) was refused by the Department of Immigration and Border Protection (‘the Department’) on 6 February 2015. The Department put this refusal to the First Applicant for comment under s.57 of the Migration Act 1958 (Cth) (‘the Act’), and in response a further nomination application identifying the First Applicant was lodged by Supple Solutions on 23 March 2015.
On 29 April 2015, a delegate of the First Respondent refused to grant the visa on the basis that the First Applicant was not the subject of an approved nomination and thus cl.457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) had not been met.
The delegate noted in her Decision Record dated 29 April 2015 that a further nomination had been lodged on 23 March 2015 but that no assessment had been made in relation to that nomination. The delegate said, relevantly:
“…
The lodgement of a new nomination in and of itself does not constitute having an approved nomination, and at the time that I am deciding your visa application, there is no approved nomination in existence. For that reason, you do not meet the criteria for grant of a Temporary Work (Skilled) (subclass 457).”
On 16 May 2015, the Applicants applied to the Tribunal for review of the delegate’s decision. At that time, the nomination application lodged on 23 March 2015 remained pending before the Department. It was subsequently refused on 19 May 2015. The Tribunal made its decision with respect to this review application on 10 July 2015. The Tribunal found that it did not have jurisdiction to review the matter on the basis that at the time the Applicants lodged the application for review, the First Applicant was not identified in an approved nomination under s.140GB of the Act. As a result, the Tribunal found that the delegate’s decision was not a merits reviewable decision under s.338(2)(d) of the Act.
On 20 May 2015, the Applicants again applied to the Tribunal for review of the delegate’s decision of 29 April 2015. This second application was lodged following the refusal of the nomination (lodged on 23 March 2015) on 19 May 2015. The Applicants’ migration agent argued that as a decision had been made on the nomination review on 19 May 2015, the Tribunal then had jurisdiction to review the delegate’s decision.
On 10 July 2015, the Tribunal made a decision on the second application lodged, finding that the Tribunal did not have jurisdiction, as the same delegate’s decision had already been subject to the Tribunal’s consideration and decision. The Tribunal found it had no jurisdiction to review the delegate’s decision twice.[1]
[1] Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 30; SZASP v Minister for Immigration and Citizenship (2007) FCA 771.
On 3 August 2015, the Applicants filed an application for judicial review in the Court in relation to this second application to the Tribunal. In proceedings MLG1793/2015, the Minister invited the Applicant to amend his application to seek review of the earlier Tribunal decision made on 10 July 2015. The Applicant did so. On 2 February 2016, the Court by consent quashed the decision of the Tribunal and remitted the matter back to the Tribunal to be determined according to law on the basis that the matter was affected by the findings in Kandel v Minister for Immigration and Another [2015] FCCA 2013. In particular, the First Applicant was named in a nomination application that was still pending before the Department when he lodged his Tribunal application. He accordingly satisfied s.338(2)(d)(i), of the Act, contrary to the findings of the Tribunal.
On 9 June 2016, the Tribunal wrote to the Applicants pursuant to s.359 of the Act, inviting them to provide information in writing, namely:-
“Information demonstrating that you are the subject of an approved nomination by a standard business sponsor in accordance with clause 457.223(4)(a).
The information should be received by 23 June 2016…”
The invitation to provide information forwarded to the Applicants by email on 9 June 2016 also advised the Applicants that if the information was not provided in writing by 23 June 2016, the Tribunal may:-
“…
Make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.”
The Applicants did not provide the information within the prescribed period and no extension was sought by them. In those circumstances, the Tribunal found that s.359C of the Act applied, and pursuant to s.360(3) of the Act, the Applicants were not entitled to appear before the Tribunal. As set out in paragraph 8 of the Statement of Decision and Reasons (‘the Decision Record’), the Tribunal noted that the effect of s.363A of the Act “is that if a review Applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.”[2] The Tribunal was satisfied that the statutory requirements had been met in respect of its notice, and determined to proceed to decision without taking further steps to obtain the information.
[2] Hasran v Minister for Immigration and Citizenship[2010] FCAFC 40.
The Tribunal
The Tribunal noted correctly that the issue in the case before it was whether the First visa Applicant met the requirements of cl.457.223(4)(a) of the Regulations, which required that there be an approved nomination of an occupation relating to the First Applicant, by a standard business sponsor, that had not ceased.
The Tribunal identified that the 23 March 2015 nomination application had been refused on 19 May 2015.
The Tribunal invited the Applicants to provide information to demonstrate that the First Applicant was the subject of an approved nomination of an occupation by a standard business sponsor. However, there was no response by the First Applicant, and/or Applicants, to that invitation. The Tribunal said, in paragraph 15 of the Decision Record:
“There is therefore no evidence before the Tribunal, at the time of its decision, that there is a current nomination of an occupation in relation to the applicant that has been approved under s.140GB of the Act. The Tribunal finds that the Applicant does not satisfy cl.457.223(4)(a)(i).”
The Tribunal found that the requirements of cl.457.223(4)(a) and cl.457.223(4), as a whole, were not met.
The Tribunal found that the secondary Applicant also did not satisfy cl.457.321 and, therefore, the criteria for a subclass 457 visa, or any other subclass.
Consideration
In the Applicant’s application, filed 25 July 2016, the stated ground of application is as follows:-
“(1) While my application was in process with Tribunal, I have changed my organization for better pay and opportunity. The current company I am working with, wants to sponsor me under the same nomination. I would request Federal Circuit Court to give me the opportunity to apply for my visa through my current organisation.”
By orders made by consent, by Registrar Allaway, on 18 January 2017, the Applicant was required to file and serve any amended application, with proper particulars of the grounds of the application, by 22 February 2017, together with any written submissions. The Applicant filed neither any amended application nor written submissions.
The above ground of application is meaningless. It fails to raise any argument of jurisdictional error on the part of the Tribunal. It cannot be made out. The oral submissions made this day by the Applicant did not advance his case beyond those comments contained in paragraph 18 above.
The Applicants were afforded procedural fairness by the Tribunal. The Tribunal complied with its statutory procedural fairness obligations. The Tribunal correctly applied the applicable law, in the circumstance of there being no approved nomination in respect of the First Applicant at the time of the Tribunal decision. The Tribunal was required to affirm the delegate’s decision to refuse the visa, pursuant to cl.457.223(4)(a) of the Regulations.
There is no merit in the application, and it shall be dismissed, with costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 14 December 2017
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