Arafat v Minister for Home Affairs
[2019] FCCA 3770
•17 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARAFAT & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3770 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Regional Employer Nomination visa application – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision of Delegate of the Minister for Home Affairs not to grant Regional Employer Nomination (Class RN) (Subclass 187) visas to the applicants – nomination by first applicant’s employer was withdrawn and therefore the applicants could not satisfy cl.187.233 of Sch.2 to the Migration Regulations 1994 (Cth) – applicants assert that the Administrative Appeals Tribunal denied them natural justice – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 358, 359A, 363 Migration Regulations 1994 (Cth) |
| Cases cited: Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267 |
| First Applicant: | MOHAMMAD YASIN ARAFAT |
| Second Applicant: | NUSRAT JAHAN SAIMA |
| Third Applicant: | ABDULLAH MUADH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1314 of 2019 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 17 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2019 |
REPRESENTATION
| The First Applicant appeared in person by telephone. |
| Counsel for the First Respondent: | Mr J. Pipolo |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in this Court on 30 September 2019 is dismissed.
The First and Second Applicants pay the First Respondent’s costs of the proceeding in the sum of $5,400.
The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 7 February 2020 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1314 of 2019
| MOHAMMAD YASIN ARAFAT |
First Applicant
NUSRAT JAHAN SAIMA
Second Applicant
ABDULLAH MUADH
Third Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicants in this proceeding are as follows:
a)the First Applicant is a male citizen of Bangladesh aged 34 years, having been born on 4 November 1985;
b)the Second Applicant is a female citizen of Bangladesh aged 26 years, having been born on 13 September 1993 and is the wife of the First Applicant; and
c)the Third Applicant is a male citizen of Bangladesh aged two years, having been born on 4 March 2017 and is the son of the First and Second Applicants.
(and collectively the Applicants).
By Amended Application filed in this Court on 30 September 2019 (which contained identical Grounds to those in their original Application filed on 25 May 2019) they seek to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 21 May 2019 affirming the decision of the Delegate (Delegate) of the Minister for Home Affairs (Minister), dated 4 December 2018 refusing to grant them Regional Employer Nomination (Class RN) (Subclass 187) visas (Subclass 187 visa(s)) in the direct entry stream under s.65 of the Migration Act 1958 (Cth) (the Act).
Background
The application for the Subclass 187 visas was lodged on 3 January 2018. The First Applicant was the primary applicant and sought them on the basis of his nomination to work in the position of cook by the Trustee for the Neumann Family Trust (sponsor) at the Grazing Restaurant at Gundaroo. The Second and Third Applicants were secondary applicants for the Subclass 187 visas on the basis of being members of the family unit of a person who satisfied the primary criteria for the grant of the Subclass 187 visa: see cl.187.311 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations).
It was necessary for the First Applicant to satisfy cl.187.233 of the Regulations and in particular cl.187.233(3) and (4), which provided as follows:
187.233
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that seeks to meet the requirements of:
(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; and
(aa) in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and
(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5) The position is still available to the applicant.
(6) The application for the visa is made no more than 6 months after the Minister approved the nomination.
(emphasis added)
Decision of Delegate
Unfortunately for the Applicants, the nomination by the sponsor of the First Applicant was withdrawn on or about 28 September 2018 by a letter addressed to the Department of the Minister dated 27 September 2018 which relevantly stated:
Re: Request to withdraw the RCB approval and Nomination application
Dear Case Officer,
The company has decided to withdraw Mr Mohammad Yasin Arafat’s RCB approval and RSMS nomination application.
I would like to request the concern[ed] departments to withdraw the application without any delay. Please contact me if you need further information in this regard.
King Regards,
Kurt Neumann
Director
Grazing Restaurant
Accordingly, in her Decision Record of 4 December 2018 the Delegate found that cl.187.233 of the Regulations was not satisfied, as the First Applicant was not the subject of an approved nomination. This meant that the applications by the Second and Third Applicants as secondary applicants, had to necessarily also fail because cl.187.311 of the Regulations was not satisfied by them.
In the result the Delegate refused to grant the Subclass 187 visas to the Applicants.
Decision of Tribunal
The Applicants lodged an application for merits review of the Delegate’s decision with the Tribunal on 5 December 2018 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time.
On 14 February 2019 the Tribunal requested the First Applicant to provide information by 28 February 2019 as to whether the position identified in the Subclass 187 visa application was the subject of an approved nomination or that there was a pending application for review of a decision to refuse the nomination. The letter from the Tribunal dated 14 February 2019 stated as follows:
It is a requirement for the grant of the visa that the nomination for the position identified in your visa application has been approved. Information before us suggests that the nomination for the position identified in your visa application was withdrawn on 28 September 2018. If the nomination for the position identified in your visa application was withdrawn, the decision to refuse to grant you a Subclass 187 visa must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.
If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide evidence about this by 28 February 2019.
On 21 February 2019 the First Applicant responded to the Tribunal by requesting access to his whole file and that access was ultimately granted to him.
On 29 March 2019 the Tribunal invited the Applicants to comment on information pursuant to s.359A of the Act. The particulars of the information were that:
· at the time you made your Subclass 187 visa application on 3 January 2018, you declared in your visa application that you were nominated by The Trustee for Neumann Family Trust (the Company);
· on 28 September 2018, the Company withdrew its nomination application which named you as the nominee;
· you applied to the Tribunal on 5 December 2018 for review of the Department's refusal of your visa application; and
· accordingly, there is currently no approved nomination by the Company in relation to you.
The First Applicant responded to the Tribunal on 8 April 2019 by complaining of his former migration agent.
On 20 May 2019 the First Applicant appeared at a hearing before the Tribunal to give evidence and present arguments. Unfortunately, the position remained the same as it was at the time of the Delegate’s decision, namely that the sponsor had withdrawn its nomination of the First Applicant and he was not the subject of an approved nomination.
The First Applicant, who is an intelligent and educated person and speaks and writes the English language, apparently acknowledged this position at the Tribunal hearing with the Tribunal recording at [10] – [11] of its Decision Record as follows:
[10] At the commencement of the hearing, the Tribunal outlined the law and referred Mr Arafat to the Subclass 187 visa application made by him on 3 January 2018 (a copy of which had been emailed to him by the Tribunal) in which he declares that he has provided details of the related nomination application. The Tribunal noted that the Trustee’s nomination had been withdrawn. It observed that it has no discretion and must apply the law for the reasons outlined in Singh’s case referred to in the Tribunal’s s.359A letter. Mr Arafat indicated his acknowledgement of the Tribunal’s observations in this regard and that, in the circumstances, the Tribunal must affirm the decision of the delegate as there is no approved nomination linked to his Subclass 187 visa application and it is a once-off process. He observed that ‘everything the Tribunal says is right because the Trustee’s nomination was withdrawn’.
(emphasis added)
[11] Mr Arafat told the Tribunal that his former employer called him on 27 September 2018 and said he ‘wanted to withdraw the nomination’. When he asked his boss why, he was told that ‘the Trustee couldn’t afford it at this time’. His boss suggested he ‘try to find another employer’ willing to sponsor him. As a result, Mr Arafat said he spoke with restaurant owner called Mr Gary who offered him a job as a Cook ‘on condition’ that he accepted the offer of employment ‘within 7 days’. However, during this period, he did not receive an email from the Department or from the registered migration agent regarding the Trustee’s withdrawal of its nomination and, so, ‘the 7 days passed,: he was not sure the nomination had actually been withdrawn or whether his boss was ‘just angry about something’ (when his boss said that he wanted to withdraw the nomination).
At [13] of its Decision Record the Tribunal recorded as follows:
[13] No evidence was provided to the Tribunal of an offer of employment from Mr Gary for Mr Arafat to work as a Cook with Mr Gary’s business. Further, no evidence was provided of lodgement of a nomination by Mr Gary. In the circumstances, the Tribunal provided Mr Arafat with contact details for the Legal Aid Commission of Tasmania’s offices in Hobart where he can obtain pro bono immigration advice regarding his visa options for Australia.
The Tribunal found that the First Applicant did not satisfy cl.187.233(3) of the Regulations, and that the Second and Third Applicants could not satisfy the secondary criteria for the grant of a Subclass 187 visa and the Tribunal affirmed the Delegate’s decision.
Grounds of Attack on Tribunal Decision in this Court
The Applicants relied upon the following Amended Grounds:
1. The Administrative Appeal Tribunal (Migration division) (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicants’ protection visa rejection by the Minister's delegate.
2. The second respondent (the Tribunal) has exercised its power in error pursuant to s363(1)b and have denied the applicant's natural justice and procedural fairness pursuant to s358(1)(a) and s358(1)(b) and s359AA(1)(b)(iii)(iv) of the Migration Act 1958.
3. The applicants claim that the Tribunal was preoccupied and that was why they were denied natural justice and procedural fairness when the Tribunal formed the view about the applicants before the hearing. Preoccupation is clearly authenticated in its decision that the Tribunal has cut & pasted from the delegate's decision.
4. The applicants were deprived of the natural justice and procedural fairness. Because the decision maker did not afford the applicants whose interest has adversely affected by the decision as it did not given the opport1mity to present their case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.
I note that in his oral submissions at the hearing in this Court the First Applicant sought to blame the lawyer for the sponsor and accused that lawyer of, in some way, being negligent and advising him of information late, which meant that he was unable to meet some 28 day deadline. This criticism of the sponsor’s lawyer had not earlier been ventilated before the Tribunal. The Applicant had complained to the Tribunal of the conduct of his former migration agent as recorded at [7] of its Decision Record.
Consideration
Ground 1
This seems to be a pro forma ground taken from an application for judicial review of a refusal to grant a Protection visa, the criteria for which are entirely irrelevant to the grant of Subclass 187 visas. In any event, I am unable to discern any “error of law” or to discern that the Tribunal failed to exercise “the proper procedure”.
This Ground is completely generalised and unparticularised and, in my view, at [6] of its Decision Record the Tribunal correctly recorded that it understood the decision of the Full Court of the Federal Court in Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267, where the construction, meaning and effect of cl.187.233 of the Regulations was explained by Mortimer J with the agreement of Jagot and Bromberg JJ at 280 [45] and 285 – 287 [82] – [90] and where it was held that failure of the employer sponsor for a Subclass 187 visa to obtain approval to the relevant nomination was fatal to the grant of such a visa.
There is no evidence before me which would establish that the Tribunal failed to exercise proper procedure and this Ground fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 2
Section 363 of the Act relates to the Tribunal’s power to take evidence on oath or affirmation, to adjourn the review from time to time and to give information to an applicant for review. Section 358 relates to the right of an applicant for review to give to the Tribunal written statements of facts and arguments. There is no evidence of any breach of these sections by the Tribunal or any denial of natural justice or procedural fairness in connection with them or otherwise.
Ground 2 fails to establish jurisdictional error.
Ground 3
There is no evidence that the Tribunal was “preoccupied” whether that word is meant in the sense of the Tribunal being biased, prejudiced or by being mentally distracted.
The evidence establishes, in my view, that the Tribunal gave meaningful consideration to its merits review of the Delegate’s decision as evidenced in particular by the terms of its Decision Record. There is no evidence of cutting and pasting when one compares, as I have done, the Decision Record of the Delegate with the Decision Record of the Tribunal.
However, even if there had been cutting and pasting, that of itself would not establish jurisdictional error. There is not a skerrick of evidence that the Tribunal was biased, or that there could be any apprehension of bias about its decision.
Ground 3 is not made out.
Ground 4
In my view, the Applicants have not been deprived by the Tribunal of natural justice or denied procedural fairness. The Applicants had filed their review application with the Tribunal in Sydney when they lived there at Lakemba, but by the time of the Tribunal hearing they had moved to Hobart, and at the First Applicant’s request the Tribunal accommodated them by conducting the Tribunal hearing on 20 May 2019 by video link from Hobart.
The evidence establishes that the Tribunal hearing extended over a period of one hour and seven minutes and that the First Applicant appeared. It is clear from the Decision Record of the Tribunal that he made meaningful submissions and that he was afforded a meaningful opportunity to put his case.
In my view, the Applicants had a full and meaningful opportunity to present their case and Ground 4 fails to establish jurisdictional error.
A Final Matter - Adjournment Application
Although the Application filed in this Court in its Sydney Registry indicated an address for service at Lakemba, the First Applicant on 23 July 2019 sought that the first return date of the Application scheduled for 2 August 2019 be held by video link as he was in Hobart. In the result, on 1 August 2019 I made consent orders at the request of the parties in Chambers with a view to getting the matter ready for hearing, including an order setting the matter down for final hearing on 17 December 2019. I set the hearing down on that date to accommodate the First Applicant’s request that the final hearing not be set down in October 2019, but rather in early December 2019 because he wanted an opportunity to bring out funds from overseas so as to enable him to retain a solicitor and barrister. At the same time the First Applicant was advised by email that having regard to the pressures in this Court it was highly unlikely that any adjournment of the hearing on that date would be granted.
Nevertheless, by email of 16 December 2019 at 4:17pm the First Applicant sought an adjournment of the final hearing on the basis that his five months’ old child had suddenly fallen sick and the Second Applicant was unable to cope with two children, so he had to remain at home in Hobart. The adjournment application was supported by a medical certificate, which merely stated:
Medical Certificate
This certifies that on 16/12/2019, I examined Musab Abdullah, who is suffering from a Medical Condition, and was / will be unable to attend to normal duties from 16/12/2019 to 16/12/2019 inclusive.
By email of 5:05pm on 16 December 2019 my Associate advised the parties that I saw no proper basis for an adjournment of the hearing, but that he could appear by telephone and utilise the services in the Courtroom in Sydney of the interpreter who had been arranged to be present. The First Applicant agreed to this course and supplied a telephone number and the hearing was conducted the following day on that basis.
At the hearing the First Applicant advised that the Second Applicant was in fact at a job interview which had urgently arisen.
I record that I did not consider that any adjournment of the hearing was in the interests of justice. The medical certificate was uninformative and pro forma and merely stated the newborn child’s sickness on the day preceding the scheduled hearing. The adjournment application was made late and if I had granted an adjournment the final hearing would have had to be adjourned until September 2020, to which time I am already booked with other cases, or alternatively I would have had to displace a hearing date already scheduled in another matter.
Conclusion
In my view, the Applicants have failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 20 December 2019
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