BAKRI v Minister for Immigration

[2015] FCCA 3059

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAKRI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3059

Catchwords:
MIGRATION – Temporary Business Entry (Class UC) visa – review of decision of Migration Review Tribunal – whether the Tribunal’s decision fell into jurisdictional error – genuineness of the sponsor company – whether the Tribunal misapplied the law – no jurisdictional error – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), reg.2.72, sub-cl.457.223(4)(d) of sch.2

Cargo First Pty Ltd v Minister for Immigration & Anor (2015) 298 FLR 138

Applicant: ALAA BAKRI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 556 of 2015

Judgment of: Judge Smith

Hearing date: 1 October 2015

Date of Last Submission: 1 October 2015

Delivered at: Sydney

Delivered on: 1 October 2015

REPRESENTATION

The Applicant appeared in person.

Solicitor for the Respondents: Mr L. Dennis, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The name of the second respondent be amended to Administrative Appeals Tribunal.

3. The applicant pay the first respondent’s costs set in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 556 of 2015

ALAA BAKRI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

Background

1. On 27 February 2013, the applicant applied for a Temporary Business Entry (Class UC) visa. That class of visa had two subclasses; only one of which the applicant applied for, namely, subclass 457 visa. One of the criteria for the grant of that visa was set out in sub-cl.457.223(4)(d) of sch.2 to the Migration Regulations 1994 (Cth), namely that:

   … the Minister is satisfied:

   (i)the applicant’s intention to perform the occupation is genuine;  and

   (ii)the position associated with the nominated occupation is genuine; and

   …

   It should be noted that the reference there to “occupation” and “nominated occupation” is a reference to the position in respect of which the applicant seeks to be employed and for which he has sought to be granted the visa.

2. In this case, the position in question was with a company initially called MG United Services Pty Ltd, which later changed its name to Zenith Combined Services Pty Ltd. The nominated occupation, however, was that of Program or Project Administrator. On 26 June 2013, a delegate of the Minister decided to refuse to grant the applicant the visa on the basis that she was not satisfied that that position was genuine. The applicant applied with the assistance of a migration agent to the Migration Review Tribunal for review of that decision.

3. The applicant was invited to and attended a hearing at which he gave evidence, as did the principal of Zenith Combined Services. The evidence was to the effect that although the applicant had been employed by Zenith Combined Services for some time as a security guard he had not yet started in the position of Program or Project Administrator. Various reasons were given for that, including that the principal, Mr Ghamraoui did not want him to fill that position without the certainty of the applicant having a visa for that purpose.

The Tribunal’s decision

1. The Tribunal made its decision on 17 February 2015. The critical question, as I have foreshadowed, was whether the position associated with the nominated occupation was genuine. In this respect, the Tribunal had regard to the “Australian and New Zealand Standard Classification of Occupations” (ANZSCO) and the relevant skills and qualifications and experience referred to in respect of the position. The Tribunal accepted that the job description provided to the applicant by the sponsor set out duties that were in line with the duties set out in that document.

2. The Tribunal also accepted that the applicant had a diploma from an Australian education provider: one of the other matters referred to in ANZCO. However, the Tribunal went on to state that it had several concerns as to whether the position associated with the nominated occupation was genuine. In particular, it noted that the applicant had never worked in the nominated position and, in addition, that the sponsor had made little effort to fill the position of Program or Project Administrator, which concerned the Tribunal because the applicant was someone who was available and willing to work in the position and was already working for the sponsor.

3. It also considered the explanation given by the principal of the sponsor for the reason for which the applicant had not yet commenced in that position, but did not accept that explanation, namely, that the sponsor was not willing to expend considerable resources without certainty or that he could not afford in terms of time and money to needlessly expend such resources in order to qualify the applicant for the position. For those reasons, the Tribunal was not satisfied that the position associated with the nominated occupation was genuine and so that the applicant did not satisfy the criterion in sub-cl.457.223(4)(d)(ii). On that basis it affirmed the decision of the delegate.

Consideration

1. The applicant now seeks judicial review of that decision. In order to succeed in this application the applicant must establish that the Tribunal’s decision was affected by jurisdictional error. Jurisdictional error essentially means that the Tribunal did not properly fulfil the task set of it by the Migration Act 1958 (Cth), namely, to review the decision of the delegate. It can fall into such error, for example, by failing to follow mandatory procedure or by misunderstanding the law or by making findings of fact that were not open on the material or somehow acting unreasonably in a particular sense.

2. The grounds in the application are as follow:

   (1)The Member of the Tribunal erred in stating that the applicant’s intention to perform the occupation is not genuine as well as the position associated with the nominated occupation is not genuine.

   (2)The Tribunal acted contrary to the law and refused the application contrary to meeting the requirements.

   (3)I will provide transcript to support my application under review.

   (4)The Tribunal misapplied the law.

   Those grounds are not particularly helpful in ascertaining what error is said to arise from the Tribunal’s decision. Ground 3 does not raise any error at all. The applicant has provided a transcript, but has not relied upon it or any aspect of it at the hearing today.

3. The applicant appeared in person before me today and made certain submissions about the Tribunal’s decision. In effect, however, what he was saying was that he did have a genuine intention to perform the occupation, and that the position associated with the nominated occupation was genuine. The first of these submissions addresses a criterion that the Tribunal did not address, namely, that found in sub-cl.457.223(4)(d)(i).

4. However, in respect of both submissions it is clear that the gist of what the applicant is saying in these proceedings is that the Tribunal ought to have been satisfied that the position was genuine. That, in effect, is no more than a statement of disagreement with a conclusion of a qualitative assessment made by the Tribunal. Such a disagreement does not support the conclusion of jurisdictional error. 

5. I have considered outside the actual grounds raised by the applicant whether or not the Tribunal properly understood its task in particular by reference to what is meant by the requirement that the position associated with the nominated occupation is genuine. I considered the meaning of that phrase in the context of reg.2.72 of the Regulations in the recent decision of Cargo First Pty Ltd v Minister for Immigration & Anor (2015) 298 FLR 138 (see in particular from para.[20]). Although the context of that decision was different, the phrase is the same, and appearing in the regulations, ought to have the same meaning.

6. On that basis, as I have mentioned above, what is required in assessing whether sub-cl.457.223(d)(ii) is met is a qualitative analysis of the position as against the circumstances and evidence given in support of its existence. That is fundamentally a task which is left by the legislation to the Tribunal. It is not for this Court to be satisfied of the genuineness or otherwise of the position.  In my view, the Tribunal understood the extent of that in terms of what it meant to be genuine. It was not satisfied that the position was genuine and did so for reasons which were probative of that conclusion. Another way of saying the same thing, as the Minister submitted, was that the conclusion was open to the Tribunal on the material before it.

Conclusion

1. For those reasons I conclude that the Tribunal did not fall into jurisdictional error in any of the ways suggested by the applicant such as they were, or in any other way. For those reasons the application must be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:     23 November 2015