Begum v Minister for Home Affairs

[2019] FCCA 1336

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEGUM & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1336

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v Stretton [2016] FCAFC 11

Kaur v Minister for Immigration and Border Protection [2016] FCA 132

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

First Applicant: FATEMA BEGUM

Second Applicant: MD ALAUDDIN MAHMUD

Third Applicant: FARDIN MAHMUD

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 510 of 2019

Judgment of: Judge Emmett

Hearing date: 20 May 2019

Date of Last Submission: 20 May 2019

Delivered at: Sydney

Delivered on: 20 May 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Mr Leonard Leerdam
(DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 510 of 2019

FATEMA BEGUM

First Applicant

MD ALAUDDIN MAHMUD

Second Applicant

FARDIN MAHMUD

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 4 February 2019 (“the Tribunal”) affirming a decision of a delegate of the first respondent (“the Delegate”) made on 20 September 2017 refusing the applicants Temporary Business Entry (Class UC) (Subclass 457) visas (“457 Visa”). The application is made pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on the basis that the ground of the application does not disclose an arguable case for the relief sought.

2. The background of this matter and a summary of the Tribunal's decision are accurately reflected in the first respondent's written submissions as follows:

   “Background

   2. The primary applicant is a citizen of Bangladesh who first arrived in Australia on a subclass 572 visa on 22 July 2007.

   3. On 24 January 2017 the primary applicant applied for Temporary Business Entry (Class UC) (subclass 457) visas. The second applicant (being the primary applicant's spouse) and the third applicant (being the primary applicant's child) were secondary applicants.

   4. On 19 May 2017 the Department wrote to the primary applicant inviting her to comment on the fact that her prospective employer (Irisivy Pty Ltd) did not have an approved nomination.

   5. On 20 September 2017 a delegate of the Minister refused to grant the applicants the visas as the primary applicant was not the subject of an approved nomination.

   6. On 9 October 2017 the applicants applied for review of the delegate's decision to the AAT, at a time when there was a pending nomination lodged by Bangala Hair and Beauty Salon Pty Ltd nominating the applicant.

   7. On 12 October 2017 the AAT wrote to the applicants acknowledging the application and informing them that if they wanted to provide material to the AAT to consider they should do so as soon as possible.

   8. On 6 November 2017 the AAT wrote to the applicants providing them with access to the AAT and Departmental files.

   9. On 12 November 2018 the AAT wrote to the applicants inviting them to attend a hearing. The letter stated that the applicant was not the subject of an approved nomination and that a new application for approval of a nomination could no longer be made. The AAT asked the applicants to provide it with evidence of an approved nomination, if such a nomination was in place.

   10. On 13 December 2018 the applicants appeared before the AAT.

   11. On 31 January 2019 the primary applicant wrote to the AAT stating that she was still waiting for her husband's skill assessment results.

   12. On 4 February 2019 the AAT affirmed the delegate's decision.

   The decision of the Tribunal

   13. The AAT noted that at the time the visa application was lodged Class UC contained subclass 457. The AAT noted that one of the criteria to be satisfied at the time of decision was clause 457.223 of the Migration Regulations 1994 (the Regulations) which required the visa applicant satisfy one of the alternative 'streams' for the visa. The AAT noted that in the present case, specific claims had been made against clause 457.223(4) that applied to sponsorship for employment in an occupation by a standard business sponsor. The AAT noted that no claims had been made in respect of the other alternative streams in clause 457.223: [3].

   14. The AAT noted that the applicant applied for her 457 visa sponsored by Irisivy Pty Ltd (the sponsor) for the position of Hairdresser. The AAT noted that nomination was refused by the Department on 19 May 2017 and there was no review sought by the sponsor of that decision: [7].

   15. The AAT noted that the applicant sought a nomination from a second nominator, Bangala Hair & Beauty Studio Pty Ltd and that the application was made on 6 October 2017 and refused by the Department on 2 October 2018 with no review being sought of the Department's decision: [9].

   16. The AAT noted that the applicant made a request for an extension of time to provide the AAT information about a further (third) nomination and that no other information was provided at the hearing: [11]. The AAT noted that the applicant was requested to provide any further information by no later than 31 January 2019: [12].

   17. The AAT noted that on 31 January 2019 the applicant informed it by email that 'I am waiting for my husbands skill assessment results': [13]. The AAT noted that the applicant had not provided details about the applicant's husband's circumstances or any applications by him to Department save for an attachment to the applicant's email, which was a copy of a Vetassess application made for the applicant's husband for assessment as a Cook (commercial cookery). The AAT noted that payment was made for the husband's assessment on 5 December 2018 and that no further information was submitted about that circumstance: [14].

   18. The AAT noted that it had no other information before it of any successful nomination of the applicant herself or any other occupation: [15].

   19. The AAT noted the issue was whether the primary visa applicant met the requirements of clause 457.223(4)(a): [17].

   20. The AAT noted that it wrote to the applicant and her former representative on 12 October 2017, 6 November 2017 and 12 November 2018 and that it did not receive any response. The AAT noted it was only at the hearing that it was updated about the applicant's circumstances. The AAT noted that the applicant's representative withdrew after the AAT hearing invitation had been sent to the applicants: [20].

   21. The AAT found that it was satisfied that there was no approved or pending nomination for a visa in favour of the applicant. For those reasons the AAT found the requirements of clause 457.223(4)(a) were not met. The AAT was further satisfied that it was not appropriate to extend time for an indefinite period to enable the applicant to await the outcome of an application by her husband, the details of which had not been provided: [21].

   22. The AAT noted that as at 18 March 2018, the 457 visa programme was replaced with the Temporary Skilled Shortage programme visa subclass 482. The AAT found it was no longer open to the applicant to seek sponsorship under the former 457 programme and any review could not remit an application for a 457 visa to the Department for further consideration: [22].

   23. The AAT found that the requirements for the standard business sponsor stream had not been met and that no claims had been made in respect of the other streams in clause 456.223 and there was no evidence that the applicant could be able to satisfy the specific criteria for those streams: [23].

   24. The AAT was satisfied that the second and third name applicants (secondary applicants) were not members of the family unit of a person (the primary applicant) who had satisfied the primary criteria for a 457 visa and who held a 457 visa: [24]. As a result the secondary applicants did not meet the requirements of clause 457.321: [25].”

   (Footnotes omitted)

3. The applicants were unrepresented before this Court, although they had the assistance of an interpreter. 

4. The first applicant confirmed that the claims of the second applicant, her husband, and the third applicant, her child in respect of whom she was appointed litigation guardian, are wholly dependent on her claims. 

5. The first applicant confirmed that she was representing all three applicants before this Court, although I note the second and third applicants were in attendance.

6. The applicant confirmed that she had attended a directions hearing before a Registrar of this Court on 28 March 2019 and on that occasion, she had been given leave to file and serve an amended application, any further evidence and submissions in support of her application. The applicant was also provided with the contact details of legal services providers and translating and interpreting services at that directions hearing.

7. At the request of the first respondent, the matter was set down for a show cause hearing today in accordance with r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on the basis that the grounds of the application do not disclose an arguable case for the relief sought.

8. The applicant confirmed that she continued to rely on the ground in her application which is as follows:

   “1. The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.”

9. I explained to the applicant that the role of this Court was very different to that of the Tribunal and that it was not for this Court to reconsider her claims, make different factual findings or reach different conclusions. I explained that the only issue before this Court was whether or not the decision of the Tribunal appeared to have been made according to law, or was affected by a mistake that went to the Tribunal's jurisdiction. I further explained that disagreement with the findings and conclusions of the Tribunal rarely by itself established such a mistake.

10. I then asked the applicant what were the aspects of her claims that she said the Tribunal failed to consider. The applicant responded that the company did not have the financial ability to run the company and that there was no fault on her side.

11. The applicant applied for a 457 Visa which required compliance with certain mandatory requirements. Those requirements included cl.457.223(4)(a) of the Migration Regulations 1994 (Cth), as follows:

    “(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…”

12. The Delegate concluded that the applicant was not the subject of an approved nomination at the time the application was being decided and therefore found that cl.457.223(4)(a) of the Regulations had not been met.

13. Accordingly, the Delegate refused the applicant's application for a 457 Visa.

14. In reviewing that decision, the Tribunal noted the decision of the Delegate and the Delegate’s reasons for refusing the nomination. The Tribunal also noted that the applicants appeared before it on 13 December 2018.

15. The Tribunal noted that the applicant had applied for a 457 Visa sponsored first by a company known as Irisivy Pty Ltd for the position of hairdresser. The Tribunal noted that nomination application was refused by the Department of Immigration and Border Protection (“the Department”) on 19 May 2017; that no application for a review had been sought by the sponsor of that decision; and, that that sponsor had been de-registered on 2 March 2018.

16. The Tribunal the noted that while waiting for the Tribunal's review, the applicant sought a nomination from the second nominator, Bangla Hair & Beauty Studio Pty Ltd, by application made on 6 October 2017. That application was refused by the Department on 2 October 2018, and no review was sought of Department decision. 

17. The Tribunal noted that at the date of the hearing the applicant was not the subject of a nomination by a sponsor which had been approved by the Department.

18. The first respondent read the affidavit of John Tsaousidis affirmed 24 April 2019. Mr Tsaousidis’ affidavit annexed various documents from the Department confirming the Delegate’s findings made by the Tribunal referred to above.

19. The Tribunal further noted that at the hearing on 13 December 2019, the applicant made requested an extension of time to provide to the Tribunal information about a third nomination. No other information was provided at the hearing. The Tribunal granted the applicant an extension as requested to provide further information and directed that the applicant provide any further information by 31 January 2019. 

20. On 31 January 2019, the Tribunal noted that the applicant informed the Tribunal by email that she was still waiting for her husband's skills assessment results and provided no other information about the further nomination application made by the applicant or any anticipated timeframe for a response to an application pending by her husband.

21. The Tribunal noted that there was no other information before it of any successful nomination of the applicant for any other occupation. The Tribunal then noted that cl.457.223(4)(a) of the Regulations required there to be an approved nomination of an occupation relating to the applicant by a standard business sponsor that had not ceased.

22. The Tribunal noted that it had written to the applicant and her former representative on 12 October 2017, 6 November 2017 and 12 November 2018 requesting further information to which it had received no responses.

23. The Tribunal noted that the applicants’ representative withdrew after the Tribunal hearing invitation had been sent to the applicants. The Tribunal found there was no approved or pending nomination for a visa in favour of the applicant and that for that reason, the requirements of cl.457.223(4)(a) of the Regulations were not met.

24. The Tribunal was further satisfied that it was not appropriate to extend time for an indefinite period to enable the applicant to await the outcome of an application by her husband, details of which had also not been provided.

25. Accordingly, the Tribunal affirmed the decision under review.

26. The Tribunal considered the applicant's request for further time to provide information and, indeed, granted an extension of almost two months for the applicant to do so. The Tribunal's decision was ultimately not made until 4 February 2019 and substantially relied on the failure of the applicant to provide any further information or evidence to it of any pending nomination.

27. In the circumstances, the Tribunal properly exercised its discretion in granting the applicant further time and exercised that discretion reasonably and according to law (see Minister for Immigration v Li (2013) 249 CLR 332 at [105] per Gageler J; Minister for Immigration v Stretton [2016] FCAFC 11 at [11] per Allsop CJ; Kaur v Minister for Immigration and Border Protection [2016] FCA 132 at [17] per Perry J).

28. The Tribunal clearly understood the mandatory requirements of the visa for which the applicant had applied and the manner in which the applicant had failed to comply with those requirements.

29. The findings of the Tribunal were open to it on the evidence and material before it. Those findings were logically probative of the issues before the Tribunal and were not without an intelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

30. Whilst I make no final decision as to whether or not the decision was affected by jurisdictional error, none is apparent upon the face of the Tribunal's decision record and none has been identified by the applicant. 

31. The applicant's assertion that the company did not have a financial ability to run the company is not relevant to the applicant's compliance in not meeting the mandatory criteria. Similarly, the applicant's assertion that there was no fault from her side, is also not capable of establishing any jurisdictional error on the part of the Tribunal. 

32. I also note the first respondent's written submissions that an amendment of the Regulations would render any relief to the applicant in respect of this matter to be futile. I agree with those submissions. Those submissions are as follows:  

    “Futility

    36. Even if any jurisdictional error in the AAT's decision were established in the present case, we consider the Court would be obliged to refuse relief in its discretion as it would futile to remit the matter to the AAT: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609.

    37. On 18 March 2018, the Regulations were amended by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth), which removed subclass 457 from the class of skilled visas and amended regulation 2.72, which prescribes the criteria for the approval of a nomination under section 140GB of the Act. As a result, it is no longer possible for an employer to seek approval of a nomination to sponsor an applicant or proposed applicant for a subclass 457 visa: regulation 2.72 (1)(b) of the Regulations.

    38. It is a criterion for the grant of a subclass 457 visa that a nomination in relation to the primary applicant has been approved under section 140GB of the Act. As no new subclass 457 visa nominations can be made, and as there is no approved or pending nomination in respect of the primary applicant, the primary applicant cannot satisfy the criteria for the grant of the visa on remittal.”

33. In the circumstances, I'm not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court's discretion under s.44.12(1) of the Rules, and on the basis that the application does not raise an arguable case the proceeding before this Court commenced by way of application, filed on 5 March 2019, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate: 

Date:  23 May 2019