Ansari & Ors v Minister for Immigration & Anor
[2020] FCCA 458
•8 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANSARI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 458 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a business entry visa – visa criteria amended prior to decision and the principal applicant ceased to be eligible – whether the Tribunal should have used the superseded criteria considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.140GB |
| Cases cited: Capila & Anor v Minister for Home Affairs & Anor [2018] FCCA 2037 |
| First Applicant: | GAYAS AHMED ANSARI |
| Second Applicant: | FARHA SALEEM |
| Third Applicant: | YASWER AHMED ANSARI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2021 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 March 2020 |
| Date of Last Submission: | 23 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2020 |
REPRESENTATION
| The First Applicant appeared by telephone |
| Solicitors for the Respondents: | Ms A Wong of Mills Oakley |
ORDERS
The application filed on 27 June 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2021 of 2017
| GAYAS AHMED ANSARI |
First Applicant
FARHA SALEEM
Second Applicant
YASEER AHMED ANSARI
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 29 May 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants temporary business entry visas.
The following statement of background facts is derived from the submissions of the Minister filed on 17 February 2020.
On 24 November 2015, the applicants applied for temporary business entry (class UC) (subclass 457) visas on the basis of a nomination of the first applicant (Mr Ansari) by an approved sponsor, Makffik Tech Pty Ltd (the sponsor) for the position of Transport Company Manager.[1] Mr Ansari’s spouse and son (a minor) are the second and third applicants respectively who applied as members of the family unit.[2]
[1] Court Book (CB) 1-144
[2] CB 8
On 10 February 2016, the Minister’s Department refused the nomination application.[3] On the same date, the Minister’s Department wrote to the applicants and invited them to comment or respond to information that the sponsor did not have an approved nomination for Mr Ansari.[4] The applicants did not respond to the Minister’s Department’s invitation.
[3] CB 240
[4] CB 229-232
On 8 March 2016, the sponsor applied to the Tribunal for review of the nomination refusal decision.
On 5 April 2016, the delegate refused to grant the visas on the basis that Mr Ansari was not the subject of an approved nomination as required by clause 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[5]
[5] CB 239-244
The Tribunal
On 26 April 2016, the applicants applied to the Tribunal for review of the delegate’s decision.[6]
[6] CB 245
On 26 April 2017, the applicants were invited to attend a hearing scheduled for 16 May 2017[7] which they attended.[8]
[7] CB 250-253
[8] CB 257-260
On 29 May 2017, the Tribunal affirmed the decision under review on the basis that Mr Ansari did not meet clause 457.223(4)(aa) of Schedule 2 to the Regulations.[9]
[9] CB 266, [19]
Relevant legislation and the Tribunal’s decision
Clause 457.223(4)(aa) required that the nominated occupation be “specified in an instrument in writing for regulation 2.72(10)(a) or (aa) that is in effect”.
Regulation 2.72(10) required that if the nomination was made on or after 1 July 2010 (which was the case in this matter), the nominated occupation must correspond to an occupation specified by the Minister in an instrument in writing for this regulation. The instrument that was in effect in this case was IMMI 16/059 as amended by IMMI 17/040.
The occupation of Transport Company Manager (149413) was relevantly specified in Schedule 2 to IMMI 16/059.
However, on 19 April 2017 (prior to the Tribunal hearing and decision), IMMI 1/7/040 replaced IMMI 16/059, specifying the occupations that could be approved for the purposes of the subclass 457 visa program. The amendments came into effect on 19 April 2017 and applied to applications that had not been finally determined. The effect of the legislative amendments was that the occupation of Transport Company Manager (149413) was to be excluded from the specification in Schedule 2 to IMMI 17/040 if the business had fewer than five employees.[10] At the hearing for the sponsor, the director (Mr Mian) gave evidence that the business only had one employee.[11]
[10] Note 16(e) to IMMI 17/040
[11] CB 266, [14]
Although the Tribunal accepted that at the time of application (in 2015), the occupation of Transport Company Manager was not affected by the caveats which now applied to the position, there were no transitional provisions in respect of subclass 457 visa applications. In the circumstances, the Tribunal considered that Mr Ansari was affected by the changes to the specification of occupations instrument IMMI 17/040.[12]
[12] CB 266, [17]
The Tribunal found that the relevant instrument in effect at the time of decision was IMMI 17/040. As the position was in a business that only had one employee, the Tribunal found the nominated occupation of Transport Company Manager was not specified in an instrument in writing that was in effect.[13] The Tribunal found Mr Ansari did not meet clause 457.223(4)(aa) of Schedule 2 to the Regulations.[14] The Tribunal also affirmed the decision in respect of the secondary applicants.[15]
[13] CB 266, [18]
[14] CB 266, [19]
[15] CB 267, [20]
The current proceedings
These proceedings began with a show cause application filed on 27 June 2017. Mr Ansari continues to rely upon that application. There is one ground in it:
1. The Legislative Instrument applicable to the relevant nominated occupation should have been the one which was applicable at the time of application and not at the time of decision.
The affidavit filed with the application identifies Mr Ansari and attaches the Tribunal decision, together with submissions about it. I have before me as evidence the court book filed on 15 August 2017.
This matter was originally docketed to Judge Barnes but, at a callover conducted on 11 March 2019, the matter was reallocated to my docket.
The matter was listed for a final hearing on 25 February 2020. Mr Ansari failed to appear but had provided a prior medical certificate. On the strength of that certificate the hearing was adjourned to 3 March 2020.
On 2 March 2020 Mr Ansari emailed the Court and the Minister’s solicitors to state that he would be absent from the hearing due to illness and that the other applicants had returned to India. At the time of the hearing, however, the Court was successful in contacting Mr Ansari and invited him to participate in the hearing by telephone. He stated that he was not in a position to appear and that he was in possession of two medical certificates.[16] He sought a further adjournment. A further medical certificate was annexed to Mr Ansari’s email of 2 March 2020 and stated that Mr Ansari was suffering from suspected pneumonia, associated with dizziness, stress and anxiety. The doctor certified that Mr Ansari was unfit for work from 2 – 15 March 2020.
[16] The first having been provided in respect of the hearing set down for 25 February 2020
That medical certificate (in contrast to the first) was silent as to Mr Ansari’s fitness to attend court. I confirmed with Mr Ansari that he was in possession of the court book but he was unsure whether he had received the Minister’s submissions. I directed the Minister’s solicitors to send Mr Ansari a fresh copy of their submissions.
While I refused Mr Ansari’s adjournment application, I recognised that he would require time to consider the Minister’s submissions and respond to them. I anticipated possible future difficulties in conducting face to face hearings in view of the developing coronavirus pandemic and decided that the appropriate way to proceed was to give Mr Ansari the opportunity to make post hearing submissions. I accordingly gave Mr Ansari 21 days to make those submissions.
On 23 March 2020 Mr Ansari filed detailed, coherent and helpful written submissions. In those submissions, Mr Ansari gives voice to his frustrations experienced in seeking to navigate the 457 visa class requirements over a number of years. Importantly, for present purposes at [22] Mr Ansari accepts that there was no jurisdictional error made by the Tribunal. At [28] Mr Ansari submits that the applicants should not be subjected to a costs penalty because they have already suffered financially and mentally.
It follows that the parties are in agreement that the decision of the Tribunal is free from jurisdictional error. It is nevertheless necessary and appropriate that the Court should explain its acceptance of those submissions.
The sole ground of judicial review in the application states that the legislative instrument applicable to the nominated occupation for the purpose of clause 457.223(4)(aa) should have been the one that was applicable at the time of application and not at the time of decision.
In a typed statement attached to his supporting affidavit, Mr Ansari contends that “nearly two years” had passed since the visa application was lodged. He cites Kaur v Minister for Immigration[17] and contends that reliance on an instrument at time of decision would lead to “random, capricious and unpredictable” outcomes. The judgment in Kaur bears no relevance to this matter as it concerned a different statutory framework in relation to a permanent skilled (subclass 136) visa and not a temporary business visa.
[17] [2005] FCA 230
Relevantly, clause 457.223(4)(aa) required that the nominated occupation be “specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect”. This was a time of decision criterion. The instrument in effect at time of decision was IMMI 17/040, “Specification of Occupations, a Person or Body, a Country or Countries Amendment Instrument 2017/040”. This instrument was registered on 18 April 2017 and commenced the next day.
The Tribunal correctly applied this instrument as it was in force at the time of its decision. This instrument specified that the occupation of Transport Company Manager was subject to “Note 16” stated:
Note 16: In relation to specifications of occupations for a Subclass 457 – Temporary Work (Skilled) visa, despite paragraph 2 of this instrument, for the purposes of paragraph 2.72(10)(aa) of the Regulations, the specification excludes any of the following:
…
e) positions in a business that have fewer than five employees.
(emphasis added)
The amending provisions affected Mr Ansari as the business only had one employee. Therefore, he was not able to be nominated for the occupation of Transport Company Manager. Mr Ansari submitted that the Tribunal should have regard to the instrument at time of application which did not contain the relevant exclusion. This argument cannot be sustained.
As the Tribunal informed the applicants, on 14 September 2017, the Minister removed their nominated occupation of vocational education teacher from the list of eligible skilled occupations. In those circumstances, the applicants’ review application was doomed to fail and any error could not be said to have affected the outcome.[18]
[18] Capila & Anor v Minister for Home Affairs & Anor [2018] FCCA 2037 at [21]
The Tribunal correctly found that as there were no transitional provisions in respect of subclass 457 visa applications, Mr Ansari was affected by the changes to the instrument.[19] The applicants’ sole ground cannot succeed.
[19] CB 266, [17]
Futility
Even if jurisdictional error was established (which it has not), I would refuse relief in the exercise of discretion on the basis that it would be futile to remit the matter to the Tribunal for a further reason. On 18 March 2018, the Regulations were amended by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 which removed subclass 457 from the class of skilled visas. As such, it is no longer possible for an employer to seek approval of a nomination to sponsor a prospective subclass 457 visa holder. It was a requirement for the grant of a subclass 457 visa that the nomination of the occupation in relation to Mr Ansari had been approved under s.140GB of the Migration Act 1958 (Cth), and that nomination had not ceased as provided for in regulation 2.75.[20]
[20] clause 457.223(4)(a)
If the matter was remitted to the Tribunal, it would be bound to affirm the decision under review as Mr Ansari would be unable to meet clause 457.223(4)(a)(iii) of the Regulations.[21] As Mr Ansari was not the subject of an approved or pending nomination application and noting that no nomination applications for a subclass 457 visa may now be lodged, Mr Ansari would never be able to be the subject of an approved nomination.
[21] Salh & Anor v Minister for Immigration & Anor [2019] FCCA 2096
Conclusion
The decision of the Tribunal is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 8 April 2020
5
3
4