Amailef v Minister for Immigration - [2008] FMCA 1346

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AMAILEF & ORS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1346

MIGRATION – Review of Migration Review Tribunal decision – where applicant applied for offshore skilled employee visa rather than onshore skilled employment visa – whether open to delegate to correct mistake – where nominator made application for nomination and it was accepted – where applicant did not meet base salary requirements at the time of the visa application.

Migration Act 1958 (Cth), ss.45, 46, 359A
Migration Regulations 1994 (Cth), regs.856.213, 1114, 1114A, Sch 2 subpara 121.21

First Applicant:

KHALED ABDELSALAM AMAILEF

Second Applicant:

ELHAM F ALI BENSHATWAN

Third Applicant:

HUDA AMAILEF

Fourth Applicant:

ABDELSALAM AMAILEF

Fifth Applicant:

HAMZA AMAILEF

Sixth Applicant:

ALAA AMAILEF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1331 of 2008

Judgment of:

Raphael FM

Hearing date:

5 September 2008

Date of Last Submission:

5 September 2008

Delivered at:

Sydney

Delivered on:

5 September 2008

REPRESENTATION

Applicant in person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
First and Second Applicants to pay the First Respondent’s costs assessed in the sum of $2,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1331 of 2008

KHALED ABDELSALAM AMAILEF

First Applicant

ELHAM F ALI BENSHATWAN

Second Applicant

HUDA AMAILEF

Third Applicant

ABDELSALAM AMAILEF

Fourth Applicant

HAMZA AMAILEF

Fifth Applicant

ALAA AMAILEF

Sixth Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Like many applications for review of decisions of the Migration Review Tribunal, this case has found itself in the court because of unfortunate misunderstandings and, with respect to the nominator, a failure to obtain qualified assistance to guide both it and the visa applicant through the very detailed and complex regulations contained in the Migration Regulations 1994 (Cth) (“the Regulations”) and its Schedules.
This is an application for review of a decision of the Migration Review Tribunal handed down on 8 April 2008. The hearing has been conducted today by the visa applicant, the proposed employee, rather than the review applicant, the proposed employer. The Minister has not objected to this course of action being taken. It is best that the manner in which my decision is revealed commences with the history and through that indicates the difficulties with which the visa applicant is faced.
The visa applicant was the holder of a student visa. He is a mature man who lives in Australia with his wife and four children. He is well-educated. He holds a Masters of Science (Computer Networking) from the University of Western Sydney. He also claims to have a Bachelor of Science degree with honours.
As a student, the visa applicant was entitled to work for 20 hours a week. He worked for a lengthy period of time for a medical practice known as Isra Medical Pty Ltd trading as the Isra Medical Centre in Lakemba. He was employed as a computer support technician. Following the applicant's graduation the medical centre decided to employ him full‑time and it applied for nomination under the Employer Nomination Scheme in Form 785 of the Regulations’ forms. The visa applicant also applied for a visa. In his case he completed Form 47ES [CB120]. It was here that the first problem arose. Under paragraph 3 of the form it lists the type of application and states that the applicant select one only. The first is the offshore skilled employer sponsored categories and there are three categories in the box, the first being Employer Nomination Scheme (ENS class AN subclass 121). The form continues:
“When you lodge this visa application you must have been nominated and must meet the skill level requirements under the ENS.”
That was the visa class for which the applicant ticked the box. The second box underneath the offshore skilled employer sponsored categories box is the onshore skilled employer sponsored categories box. That is another type of visa called the Employer Nomination Scheme (ENS ‑ class BW subclass 856). It also says:
“When you lodge this visa application you must have been nominated and must meet the skill level requirements under the ENS.”
The applicant did not tick that box, even though he was resident in this country when he made the application, a fact and that is clearly shown on a number of pages in his application form, including [CB 14], [CB 19] and [CB 21]. I have looked at the Regulations Sch 1 for the class AN visa. Reg.1114(3)(a) states that the:
“(3)(a) [a]pplication must be made in Australia, but not in immigration clearance.”
I have also looked at the regulation in respect of the class BW visa which is found at reg.1114A of the same Regulations, and that states in its para (3):
“(3)(a) Application must be made in Australia but not in immigration clearance.
(b) Applicant must be in Australia but not in immigration clearance.”
Ms Quinn, who appears on behalf of the Minister, and for whose help I am substantially in her debt, submits that there is no prohibition on a class AN visa application being made in Australia, nor of it being considered whilst the applicant is in Australia. This is odd, but I think she is correct. The difference between cl(3)(b) in the onshore visa application and cl(3)(a) in the offshore visa application is not such as to deny the ability of the Department to consider an offshore application from a resident in Australia for a person who is in Australia. It is simply that a person who is not in Australia cannot be considered for an onshore visa.
Mr Amailef's application was considered by a delegate. It was considered as an offshore application. The delegate was obliged to consider it as such because of the provisions of ss.45 and 46 of the Migration Act 1958 (Cth) (“the Act”) which make it clear that an application for a visa is valid only if it is for a visa of a class specified in the application. In other words, even though Mr Amailef made a mistake, it was not open to the delegate to himself correct that mistake. The delegate was obliged to consider the visa application that had been made. The delegate refused the application.
At the same time as Mr Amailef made his application as a visa applicant, the nominator made an application for nomination. That application was refused by the delegate but upon application to the Tribunal the delegate's decision was reversed [CB 171]‑[183]. In that decision the Tribunal noted the applicant's current employment and the offer of employment to him under an employment contract which was going to pay him $53,000 a year. The Tribunal had regard to the Gazette notice IMMI 06/027 dated 24 April 2006 which gave a minimum salary for the type of occupation that the nominator was applying for nomination of as $41,850 per annum. This appears at para.66 of the Tribunal's decision [CB183].
Mr Amailef had sought review of the decision on his visa application, but this had been placed in abeyance pending the review decision on the nomination. Until he had a valid nomination there was no way in which he could be granted a visa. The Tribunal which then considered his visa application was aware of the decision of the Tribunal granting the nomination application.
The requirements for satisfaction of the visa application are found in Schedule 2 of the Regulations under subclass 121 as para 121.21. This states in bold:
“Criteria to be satisfied at time of application.”
The relevant clause for the purposes of this hearing is sub‑para. 121.211:
“If clauses 121.210 and 121.211A do not apply, each of the following is satisfied:
(a)     the applicant has been nominated by an employer, in accordance with subregulation 5.19 (2), for an appointment in the business of that employer;
(b)     either:
(i)   both of the following are met:
(A)   an assessing authority specified by the Minister in a Gazette Notice for this sub‑ subparagraph as the assessing authority for the occupation to which the appointment relates has assessed the applicant's skills as suitable;
(B)   unless exceptional circumstances apply, the applicant has been employed in the occupation to which the appointment relates for at least 3 years before making the application; or
(ii)   the applicant will be paid a salary in the nominated position that is at least the amount of salary specified in a Gazette Notice for this subparagraph;
    (c)     the applicant:
(i)   unless exceptional circumstances apply, has not turned 45; and
(ii)   unless exceptional circumstances apply, has vocational English.”
The relevant requirements contained in that subclause are either that the applicant has been assessed as a person with sufficient skills to undertake the position or if the applicant does not have the necessary skills assessment he must be paid the salary that is nominated in a specified Gazette Notice. The relevant salary, which is nominated in the specified Gazette Notice, is the salary contained in a Notice dated 24 April 2006, instrument IMMI 06/027 and the figure is found in para.6 which states:
“SPECIFY the base salary amount of $A165,000 for the purposes of subparagraphs 121.211(b)(ii) and 856.213(b)(ii) of Schedule 2 to the Regulations.”
If the applicant had applied for an onshore visa, it would have been considered under para.856.213. The criteria which have to be satisfied at the time of application for that visa class is relevantly identical to the requirements which I have set out above, save that there is an additional category of the applicant holding a subclass 418, 421, 422, 428, 444, 457 or 461 visa and complying with paragraphs 856.213(b) (iii)(B) and (C).
When the visa applicant's delegate decision was considered by the Tribunal it was the subject of a letter written pursuant to s.359A of the Act dated 9 January 2008 [CB 100]-[101]. That letter noted Mr Amailef's application for a class AN visa – the offshore type of visa – and noted that the amount to be paid to him should he obtain a visa would be $55,000. It further notes that the assessing authority for the purposes of sub‑para.121.211(b)(i) was the Trades Recognition Australia (TRA) and that there was no evidence on the file that at the time of the visa application TRA had assessed Mr Amailef's skills as suitable for the occupation. The letter then pointed out that the relevant Gazette Notice IMMI 06/027 specified the base annual salary of $AUD165,000 for the purposes of subpara.212.211(b)(ii) and that there was no evidence on the file that indicated that a salary of that amount had been agreed to be paid to Mr Amailef. Mr Amailef would not need to be paid $165,000 per annum if he had the TRA approval. The way in which the Regulations work is that the payment of $165,000 per annum is an alternative to obtaining the necessary skills recognition.
A letter was sent to the nominator because at this stage the nominator was the only person entitled to seek review of the delegate's decision. This is because the delegate's decision was a decision on an offshore application and an offshore applicant is not entitled to seek review from a Tribunal. The nominator responded with a letter dated

30 January 2008
[CB 104] which pointed out the applicant's qualifications and that he had already applied to TRA for an assessment. It also said that the previous Tribunal considering the nomination had accepted that a salary of $55,000 was within the gazetted requirements for the position (in fact the figure of $57,300 is mentioned, but I do not think this is relevant). The nominator asked for some further time in which to provide details of the TRA assessment. Some further time was granted but no TRA assessment was given.
On 31 March 2008 the nominator wrote a further letter to the Tribunal [CB 130‑132]. To my mind that letter does not take the matter any further. It is clear that the nominator (and probably Mr Amailef himself) was confused about the requirements and did not realise the importance of satisfying those requirements at the time of application. It also did not understand the subtleties or policy behind instrument IMMI 06/027. The correspondence with the Tribunal had also pointed to the fact that the application for an offshore visa was a mistaken application. The application itself should have been made for an onshore visa.
The Tribunal handed down its decision on 8 April 2008. It concluded, as I am of the view it had to, that the applicant had not complied with the requirements that were needed to be complied with at the time of application for proof of having the TRA approval or a contract pursuant to which he was to be paid $165,000 a year, that this was fatal to his application. The Tribunal says:
“The Tribunal has considered the submission that the Tribunal, differently constituted, in its decision of 19 September 2007 regarding the review applicant's application for approval of an employer nomination, found that the requirements of r. 5.19(2)(i) were satisfied on the basis that the salary of $55,000 to be paid to the first named visa applicant was greater than the minimum salary of $41,850 for the nominated occupation specified in the relevant Gazette Notice. The Tribunal finds that the fact that a differently constituted Tribunal found the requirements of r.5.19(2)(i) were satisfied does not establish that the first named visa applicant satisfies the quite separate and different requirements of cl.121.211(b)(ii). The relevant Gazette Notice IMMI 06/027 specifies base annual salaries in respect of specific occupations for the purposes of r.5.19(2)(i), but clearly specifies a different annual salary amount, $165,000, for the purposes of cl.121.211(b)(ii).”
Although I am satisfied that both the delegate and the Tribunal were correct in assessing this application against the requirements of an offshore visa application, which was what the applicant nominated, and that it could not have considered him as an applicant for an onshore visa application, even though he was onshore, I would note that in my view this would have been of no assistance to him. The reason is that the additional criteria found in regulation 856.213(iii) relates to persons holding visas, none of which the applicant had. Visa 418 is an educational temporary class T8 visa which relates to lecturers at a tertiary education institution, visa 421 relates to sports, 422 to medical practitioners, 428 to religious workers, 444 is a special category relating to New Zealand citizens, 457 is a business (long stay) visa and 461 relates to New Zealand citizen family relationships.
One can only have sympathy with Mr Amailef and, as I have said, regret that when his proposed employer sought to obtain a visa for him it did not take the opportunity to obtain advice from someone who could explain the intricacies of the requirements of the Act to him. The Tribunal concluded that even though the nominator indicated that it was prepared to pay Mr Amailef $165,000 per annum, this was not of assistance because the evidence on the file did not reveal that such an offer was made at the time of the application. A decision of this type is a matter of fact, which is the Tribunal's raison d'etre, and for this court to interfere with a finding of that type would be to provide the applicant with merits review that is unavailable to him from this court. In these circumstances, and as unfortunate as the decision is, both for Mr Amailef and for his nominators, the application must be dismissed.
The Minister seeks costs fixed in the sum of $4,000.00. I appreciate the work undertaken by the Minister and his solicitors. I think in all the circumstances of this case the appropriate order to make is that the first and second‑named applicants Mr Khaled Abel Salam Amailef and Mrs Elham Fahli Benshatwon pay the first respondents’ costs assessed in the sum of $2,000.00.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 26 September 2008