Barua v Minister for Immigration

[2020] FCCA 1577

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARUA v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1577

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Regional Employer Nomination (Permanent) (Class RN) visa – whether the Tribunal failed to exercise a discretion – whether the Tribunal was required to consider the genuine intentions of the applicant in circumstances where the applicant failed to meet an essential criteria for the grant of the visa – whether the Tribunal was required to consider the individual merits of the Visa application – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth) sch.2, cl.187.223

Applicant: SHAWON BARUA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2047 of 2019

Judgment of: Judge Street

Hearing date: 15 June 2020

Date of Last Submission: 15 June 2020

Delivered at: Sydney

Delivered on: 15 June 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Miss A Zinn, Mills Oakley, via Microsoft Teams

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

DATE OF ORDER: 15 June 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2047 of 2019

SHAWON BARUA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 July 2019, affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa (“the Visa”). 

2. The applicant is a citizen of Bangladesh and applied for the Visa on 19 July 2017. On 30 October 2018, the Delegate found that the applicant failed to meet the criteria for the grant of the Visa. The applicant applied for a review on 15 November 2018. 

3. On 14 June 2019, the Tribunal wrote to the applicant, explaining to the applicant that the applicant did not have an approved nomination and inviting the applicant to comment. The applicant did respond, complaining in relation to the conduct of his migration agent. Nothing the applicant said, however, identified that there was in place any approved nomination.

4. Accordingly, on 6 June 2019, the Tribunal wrote to the applicant, inviting the applicant to attend a hearing on 8 July 2019. The Tribunal had no option but to do that in circumstances where the applicant had responded to the invitation to comment and the statutory regime requires the Tribunal to take the step of inviting the applicant to attend a hearing. 

5. The applicant appeared on that date to give evidence and present arguments. 

6. At that hearing, the Tribunal explained to the applicant that he needed, as a mandatory criteria for the grant of the Visa, an approved nomination and that he did not have one. 

7. The Tribunal in its reasons identified the background to the review application. 

8. The Tribunal correctly identified the relevant law including in an “Attachment A” to the Tribunal’s reasons. 

9. The Tribunal referred to the applicant’s explanation about the conduct of his migration agent but identified that the applicant had to meet the mandatory criteria under cl 187.223 under sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). 

10. The Tribunal found that there was no approved nomination or nomination refusal pending review relating to the application for review. 

11. It was in those circumstances that the Tribunal found that the applicant did not meet the criteria under cl 187.223 and affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 9 August 2019. On 29 August 2019, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court. 

3. From the bar table, the applicant identified that he had been given wrong advice by a migration agent. The Tribunal correctly identified that the applicant had to meet the mandatory criteria of having an approved nomination. The applicant’s complaint in relation to the conduct of his migration agent did not identify any fraud upon the Tribunal or a basis upon which the Tribunal could make any favourable determination for the applicant in circumstances where the applicant did not meet the mandatory criteria. The applicant’s reference to his migration agent and the migration agent’s conduct does not give rise to any jurisdictional error. 

4. Nothing said by the applicant from the Bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   (1) The Tribunal decision was affected by erred of law, procedural fairness and jurisdictional error in relation to exercise its discretion under the Migration Act.

   Particulars:

   Discretion has the meaning of acting on one's own authority and judgement. In law, discretion as to legal rulings, such as whether evidence is excluded, may be exercised by a judge or tribunal member at all levels of law enforcement, which was denied in this matter.

   (2) The Tribunal made erred law and denial of natural justice not to consider applicants Regional Employment Nomination visa and tribunal was influenced by the delegates decision not to grant Regional Employment Nomination visa without considering evidence before the delegate and the tribunal. The tribunal failed to collect evidence from the sponsor in relation to the sponsorship nomination and the reasons for not lodging nomination application by the sponsor.

   Particulars:

   The tribunal failed to exercise its power to consider genuine intention of the applicant to stay and work in a regional area under the sponsoring company where Australia really require workforce.

   (3) The Tribunal failed to consider individual merits of class RN visa and the applicant's intention to stay in regional Australia permanently.

Ground 1

1. In relation to ground 1, the particulars supporting ground 1 make reference to a discretion. The Tribunal did not have a discretion and was required to apply the mandatory criteria. 

2. On the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law and complied with its statutory obligations. Further, it is apparent that the applicant was informed of the problem in respect of the need for an approved nomination prior to being invited to attend a hearing, as referred to above, and that the issue in relation to the mandatory requirement was raised by the Tribunal with the applicant at the hearing. 

3. The Tribunal also took into account the applicant’s response referring to the conduct of the migration agent, though that was not a matter that could give rise to any finding by the Tribunal that the applicant met the mandatory criteria. 

4. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, the reference to the Tribunal’s decision being influenced by the Delegate’s decision is not consistent with the face of the Tribunal’s decision that reflects a real and meaningful review by the Tribunal of the applicant’s application for review. 

2. The Tribunal correctly identified the relevant law and the applicant’s assertion, that the Tribunal failed to consider the intention of the applicant, was an irrelevant consideration in circumstances where the applicant failed to meet the mandatory criteria of having an approved nomination. 

3. The Tribunal was not required to consider the genuine intentions of the applicant in circumstances where the applicant failed to meet an essential criteria for the grant of the Visa. 

4. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, this refers to the merits of the application. The Tribunal was not required to consider those merits in circumstances where there is a mandatory criteria, being the need for an approved nomination, that the applicant failed to meet. 

2. No jurisdictional error is made out by ground 3.

3. Accordingly, the application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 15 June 2020.

Associate: 

Date: 13 July 2020