Babar v Minister for Immigration and Border Protection

Case [2017] FCA 655

FEDERAL COURT OF AUSTRALIA

Babar v Minister for Immigration and Border Protection [2017] FCA 655

Appeal from: Babar & Ors v Minister for Immigration & Anor [2016] FCCA 1521
File number(s): WAD 290 of 2016
Judge(s): SIOPIS J
Date of judgment: 12 June 2017
Catchwords: MIGRATION – application for a subclass 457 temporary work (skilled) visa – application by sponsor of the nominated occupation of the visa applicant was refused – the visa applicant’s application for a subclass 457 visa refused by a delegate of the first respondent – whether the delegate’s decision to dismiss the visa application was an MRT‑reviewable decision under s 338(2) of the Migration Act 1958 (Cth) – fraud on the Tribunal.
Legislation:

Migration Act 1958 (Cth) ss 140GB, 338(2)(d), 338(2)(d)(i), 338(2)(d)(ii)

Migration Regulations 1994 (Cth) Sch 2 cll 457.223, 457.223(4)(a)(i)

Cases cited:

Minister for Immigration and Border Protection v Lee [2014] FCCA 2881

X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365

SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702

SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234

Prodduturi v Minister for Immigration and Border Protection (2015) 144 ALD 243

Date of hearing: 21 November 2016
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 65
Counsel for the First, Second and Third Appellants: The First Appellant appeared in person on behalf of all appellants.
Counsel for the First Respondent: Mr PJ Corbould
Solicitor for the First Respondent: Australian Government Solicitor

ORDERS

WAD 290 of 2016
BETWEEN:

ZAHEER-UD-DIN BABAR

First Appellant

SYEDA SOBIA SHAH

Second Appellant

ZAYYAN ALI BABAR

Third Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

12 JUNE 2017

THE COURT ORDERS THAT:

1.The appellants’ appeal is dismissed.

2.The appellants are to pay the costs of the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

SIOPIS J:

  1. The first appellant, Mr Babar, is a Pakistani national.  On 17 May 2013, Mr Babar, through a migration agent, lodged a subclass 457 temporary work (skilled) visa (scl 457 visa) application for himself and his spouse, who is the second appellant in this matter.  The migration agent nominated in the application form was Mr Cedric Ng of 80 Mount Street, North Sydney, New South Wales.

  2. Mr Babar was at the date of the lodgement of the scl 457 visa application form resident in a suburb of Perth, Western Australia.

  3. Mr Babar’s sponsoring employer was named in the form as CWK M & D Pty Ltd (CWK) at an address in Hobart, Tasmania.

  4. Under the heading of “Position details” there was included the following as “Educational qualifications”:  “DIPLOMA OF DENTAL TECHNOLOGY - Certificate IV in…

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AGLC
Babar v Minister for Immigration and Border Protection [2017] FCA 655
Case
[2017] FCA 655
Decision Date

CaseChat Overview and Summary

Babar v Minister for Immigration and Border Protection is a case involving the refusal of a subclass 457 temporary work (skilled) visa. The visa applicant, whose application was sponsored by Babar, faced refusal by a delegate of the Minister for Immigration and Border Protection. The key issue before the court was whether the delegate's decision was reviewable by the Migration Review Tribunal under section 338(2) of the Migration Act 1958 (Cth), and whether there was any fraud on the Tribunal. The case also examined the conduct of the Federal Circuit Court of Australia (FCCA) and the Tribunal in handling the application.

The court examined whether the Tribunal had the jurisdiction to review the delegate's decision, a matter that was contested under ground 9 of the grounds of appeal. The court upheld the primary judge's finding that the Tribunal did not have jurisdiction to review the delegate's decision, aligning with the Full Court's interpretation in Ahmad v Minister for Immigration and Border Protection. Additionally, the court dismissed the claim that the primary judge summarily dismissed the appellants’ case without a full hearing, noting that the appellants had been granted multiple adjournments to prepare their case. The primary judge's decision to proceed with the hearing was based on the lack of a pleaded cause of action against the relevant individual and insufficient evidence of misconduct.

The court concluded that the appellants' appeal was without merit and dismissed it. The appellants were ordered to pay the costs of the first respondent, the Minister for Immigration and Border Protection. The entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appellants’ appeal is dismissed.

2. The appellants are to pay the costs of the first respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Grounds 2 to 14 largely reflect the grounds of review which were raised before the FCCA, albeit, that the grounds of appeal were now directed towards the conduct of the FCCA as well as the Tribunal. Ground 1 is, however, a ground of appeal which is directed specifically to the conduct of the hearing before the FCCA.The Tribunal’s jurisdiction to review the delegate’s decision I will deal first with the ground of appeal, namely, ground 9, which I have construed as challenging the primary judge’s finding that the Tribunal did not have jurisdiction to review the delegate’s decision. In my view, the primary judge did not, for the reasons which he gave (see [22] above), err in his analysis of the jurisdictional limitations of s 338(2)(d) of the Migration Act and, accordingly, did not err in finding that the Tribunal was correct to reject the appellants’ review application for want of jurisdiction. In the case of Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365, the Full Court of this Court undertook a detailed analysis of the ambit of the jurisdictional limitations contained in s 338(2)(d) of the Migration Act and its relationship to the requirements in cl 457.223 of Sch 2 of the Migration Regulations. The primary judge’s reasons for judgment gives effect to the construction adopted by the Full Court of those provisions.Summary dismissal Ground 1 of the grounds of appeal alleges that the primary judge dismissed the appellants’ judicial review application on the first hearing day without giving them a “full hearing”. This contention is factually incorrect and is without any merit. The primary judge did not dismiss the appellants’ case summarily on “a first hearing day”, nor indeed, at a show cause hearing. To the contrary, the primary judge gave the appellants two adjournments to seek legal advice and assistance in the presentation of their case. The primary judge did not grant the appellants a third adjournment on 17 June 2016 and proceeded to hear the appellants’ judicial review application at a “full hearing”. As mentioned, the basis for that application for an adjournment arose from Mr Babar’s complaint about Mr Kang’s conduct, and his contention that Mr Kang should be brought before the FCCA to explain his conduct. The primary judge declined to adjourn the proceeding on the basis that Mr Babar had not pleaded any cause of action against Mr Kang, nor was there any ground of review based on this complaint. Further, the primary judge observed that Mr Babar had not adduced any evidence as to Mr Kang’s alleged misconduct. The primary judge went on to say that whatever may have been the reason that Mr Babar did not have a nominating sponsor or a nominated occupation, the fact remained that those circumstances meant he could not satisfy the criteria for the grant of a scl 457 visa application, and so the application for judicial review before the FCCA was bound to fail. The primary judge, accordingly, declined to adjourn the hearing.

Ratio Decidendi

Legal Principle Established

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