BARUA v Minister for Immigration
[2018] FCCA 2841
•28 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARUA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2841 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal – where criteria under Clause 457.223 were not met – where no jurisdictional error was established – application dismissed. |
| Legislation: Migration Act1958 (Cth), ss.360, 363 Migration Regulations 1994 (Cth), reg.2.75, sch.2, cl.457.223 |
| Cases cited: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 |
| First Applicant: | RATHENDRA BARUA |
| Second Applicant: | TISHA DHANABADI BARUA |
| Third Applicant: | THOMAS DENIS BARUA |
| First Respondent: | MINISER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 486 of 2017 |
| Judgment of: | Judge Egan |
| Hearing date: | 28 August 2018 |
| Date of Last Submission: | 28 August 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 28 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Balzamo |
| Solicitors for the Applicant: | Stephens & Tozer Solicitors |
| Counsel for the Respondents: | Ms Hoiberg |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the First Applicant’s, Second Applicant’s and Third Applicant’s Applications be dismissed.
That the First Applicant pay the costs of the First Respondent fixed in the amount of seven thousand, three hundred and twenty-eight dollars ($7,328.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 486 of 2017
| RATHENDRA BARUA |
First Applicant
| TISHA DHANABADI BARUA |
Second Applicant
| THOMAS DENIS BARUA |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The first applicant is a male citizen of Bangladesh who was born on 29 November 1970. The second and third applicants are the children of the applicant. They are citizens of Canada who were respectively born on 25 September 2002 and 26 August 2003 – being aged about 16 and 15 respectively. It is conceded by Mr Balzamo, counsel on behalf of the applicant, that if the application for review filed on behalf of the first applicant is successful, that the respective applications of the second and third applicants must fail. Those second and third applicants are dependants of the first applicant.
The first applicant filed an application for review of a decision of the Administrative Appeals Tribunal (“AAT”) dated 13 May 2017, whereby a temporary business entry (class UC) visa was refused. The history of the matter is such that on 2 October 2014 the first applicant applied for a subclass 457 temporary work (skilled) visa. That application can be seen at page 356 of the court book.
Clause 457.223 of schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) sets out the criteria for the grant of a subclass 457 visa, which criteria are to be satisfied at the time of the making of a decision. Such section provides as follows:
457.223
(1) The applicant meets the requirements of subclause (2) or (4).
Labour agreements
(2) The applicant meets the requirements of this subclause if:
(a) the occupation specified in the application is the subject of a labour agreement; and
(b) a nomination of an occupation in relation to the applicant:
(i) has been approved under section 140GB of the Act; and
(ii) has not ceased to have effect under regulation 2.75; and
(c) the applicant is nominated by a party to the labour agreement; and
(d) if the Minister requires the applicant to demonstrate that he or she has skills and experience that are suitable to perform the occupation—the applicant demonstrates that he or she has those skills and that experience in the manner specified by the Minister; and
(e) the Minister is satisfied that the requirements of the labour agreement have been met in relation to the application; and
(f) either:
(i) there is no adverse information known to Immigration about a party to the labour agreement or a person associated with the party to the labour agreement; or
(ii) it is reasonable to disregard any adverse information known to Immigration about a party to the labour agreement or a person associated with the party to the labour agreement.
Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa) the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect; and
(ba) either:
(i) the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii) each of the following applies:
(A) the applicant is employed to work in the nominated occupation;
(B) if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
(C) if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d) the Minister is satisfied that:
(i) the applicant’s intention to perform the occupation is genuine; and
(ii) the position associated with the nominated occupation is genuine; and
(da) the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e) if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation—the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(ea) if:
(i) the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and
(ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and
(eb) if:
(i) the applicant is not an exempt applicant; and
(ii) subclause (6) does not apply to the applicant; and
(iii) at least 1 of subparagraphs (ea)(i) and (ii) does not apply;
the applicant:
(iv) has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v) achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec) if the Minister requires the applicant to demonstrate his or her English language proficiency—the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f) either:
(i) there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
(6) This subclause applies to an applicant if:
(a) the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and
(b) the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.
(11) In subclause (4):
exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.
Regulation 2.75 of the Migration Regulations is as follows:
Reg 2.75
Period of approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1) This regulation applies in relation to a nomination by a person of an occupation in which any of the following (the nominee ) is identified as the person who will work in the occupation:
(a) a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(b) a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(c) an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2) An approval of a nomination ceases on the earliest of:
(a) the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and
(b) 12 months after the day on which the nomination is approved unless, at that time, there is a visa application made by the nominee on the basis of the nomination that has not been finally determined; and
(ba) if a visa application made by the nominee on the basis of the nomination is finally determined or withdrawn after 12 months after the day on which the nomination is approved--the day on which the visa application is finally determined or withdrawn; and
(c) the day on which the nominee is granted a Subclass 482 (Temporary Skill Shortage) visa; and
(d) if the nomination is of an occupation for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or the Medium-term stream--the nomination end day, unless, on the nomination end day:
(i) the person is a standard business sponsor; or
(ii) there is an application for approval as a standard business sponsor made by the person before the sponsorship end day in relation to which a decision has not been made under subsection 140E(1) of the Act; and
(e) the day on which an application mentioned in subparagraph (d)(ii) is refused; and
(f) if:
(i) the nomination is of an occupation for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or the Medium-term stream; and
(ii) the person's approval as a standard business sponsor is cancelled under subsection 140M(1) of the Act;
the day on which the person's approval as a standard business sponsor is cancelled; and
(g) if the approval of the nomination is given to a party to a work agreement (other than a Minister) and the nomination is of an occupation for a Subclass 482 (Temporary Skill Shortage) visa in the Labour Agreement stream--the day on which the work agreement ceases.
(3) In this regulation:
"nomination end day" in relation to a nomination, means the day 3 months after the sponsorship end day in relation to the nomination.
"sponsorship end day " in relation to a nomination, means the day on which the approval as a standard business sponsor of the person who made the nomination ceases.
From the above, it is seen that in order for the first applicant to be granted a subclass 457 visa, the applicant must have satisfied of each of the criteria in 457.223(4)(a). The criteria have not been satisfied in this case, in that the approval of the nomination of the sponsor for the first applicant ceased on 13 May 2017. It was common ground at the hearing today that the approval as a sponsor, obtained by Bulk Industrial Trade Pty Ltd, was granted on 13 May 2016. By Regulation 2.75(2)(b), such approval ceased 12 months after the date of approval, in this case on 13 May 2017.
The first applicant was given notice of the 18 May 2017 hearing date before the Tribunal on 13 March 2017 – a period of more than two months before the proposed hearing date. The first applicant, as at the date of the hearing, bore the onus of establishing his case for review. It was incumbent upon him to ensure, as a necessary precondition to appearing before the Tribunal on 18 May 2017, that he satisfied the relevant criteria for the grant of the visa. In this case, the applicant did not so satisfy the criteria.
At paragraphs 9 – 16 inclusive of the reasons of the Tribunal, the Tribunal set out why it was unprepared to grant to the applicant further time to enable a sponsor to lodge a fresh nomination application. Those reasons are as follows:
9. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
10. At the hearing, the Tribunal asked the applicant whether he was the subject of an approved nomination. The applicant stated that he had an approved nomination, but it expired on 13 May 2017.
11. The Tribunal noted that the hearing invitation was sent on 13 March 2017, and asked the applicant why his sponsor did not arrange for a new nomination application to be lodged prior to the nomination expiring on 13 May 2017. The applicant stated that he had difficulty affording another $1,500 for an additional nomination application. His lawyer was also busy, and would not be able to prepare a new nomination application for another week or two in any event.
12. The Tribunal noted that the sponsor may be in breach of r.2.87, which prevents the transfer of nomination costs to a visa applicant. The applicant stated that he agreed to pay the costs.
13. The Tribunal has declined to provide the applicant with further time to enable the sponsor to lodge a fresh nomination application. As noted above, the applicant has been on notice of the hearing since 13 March 2017. The date of the hearing was expressed to be 5 days after his previous nomination expired. His visa application was refused because he did not have an approved nomination. In those circumstances, the Tribunal considers that the applicant had ample opportunity to arrange for the sponsor to at least lodge a fresh nomination application, even if the Department had not made a decision by the time of the hearing. He did not do so.
14. Further, the Tribunal is reluctant to facilitate the lodgement of a fresh nomination application paid for by the applicant rather than the sponsor, when this would result in an apparent breach of the sponsor's obligations under r.2.87.
15. In the absence of an approved nomination, the requirements of cl.457.223(4)(a) are not met.
16. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
It was submitted on behalf of the applicant that, based upon the provisions of section 360 of the Migration Act1958 (Cth) (“the Act”), the Tribunal had fallen into jurisdictional error by failing to allow the applicant further time to put his house in order in relation to the approval of a fresh nomination application on the part of the sponsored company. Reliance was placed upon the High Court decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) and, in particular, to the judgment of Kirby J at [82]-[83].
In that regard, the court had to consider whether prehearing delay had been established one way or another, and found that that was a question which could only be based upon factual considerations. The court is not permitted to undertake a merits review of the matters which were considered by the Tribunal but, rather, to assess whether, in its deliberations or conduct of proceedings, the Tribunal had fallen into jurisdictional error. In that regard, no jurisdictional error had been demonstrated by reason of any alleged delay in the bringing of the matter before the Tribunal for hearing.
Secondly, it is apparent from the Tribunal’s reasons, in paragraphs 13 – 15 inclusive, that the Tribunal was alert not only to the expiration of the sponsor approval, but also to the fact that no application for a new sponsor approval had been made. It was conceded by counsel on behalf of the first applicant that there was no evidence before the Tribunal on 18 May 2017 which suggested, one way or the other, whether any step had been taken by the sponsor company to make any further application for approval as a sponsor, or indeed, whether the company had any intention to do so.
The Tribunal considered that the applicant had had ample opportunity between 13 March 2017 and 18 May 2017 to arrange for the sponsor to at least lodge a fresh nomination application, but noted that the sponsor had not done so. The Tribunal further left open, by inference, the opportunity of an adjournment being the subject of consideration if an application for approval as a sponsor had been lodged, but not approved, by the time of the hearing, but such consideration was otiose in circumstances where no such application had been made.
The Tribunal, in those circumstances, found properly that the first applicant did not meet the requirements of the criterion as set out in clause 457.223(4)(a) and, accordingly, it refused the application for the visa.
It is noted that, by section 363 of the Act, the Tribunal may adjourn the hearing of a review application from time to time, however the power to so adjourn must be examined in each factual context. Submissions were made to the effect that this case was similar to Li. A factual comparison was made between the two cases by counsel for the first applicant. It was submitted that the present case ought to be looked at in the same light as the factual circumstances concerning the applicant in Li, where it was held that the Tribunal ought to have granted an adjournment at a time when a decision concerning a relevant reassessment affecting the applicant’s rights was pending at the time of the hearing before the Tribunal.
What is different in this case, however, is the fact that at the time of the subject hearing before the Tribunal, not only did the first applicant not satisfy the criteria, but he was not even in the position of being able to submit to the Tribunal that a fresh sponsorship application had even been filed. In a Li sense, the applicant was unable to submit that he had good prospects of the sponsorship application either being approved, or, that it was likely to be approved. This case is clearly distinguishable from Li.
In all of the circumstances, it is considered that the Tribunal properly addressed all of the issues relating to the question of the adjournment of the hearing before it on 18 May 2017, and that it acted properly in addressing relevant considerations in that regard. No jurisdictional error has been established. The application for review is therefore dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 3 December 2018
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