Begum v Minister for Immigration
[2020] FCCA 3494
•21 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEGUM & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3494 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for an Employer Nomination (Permanent) (Class EN) visa – whether the Tribunal failed to consider relevant material – no jurisdictional error made out – amended application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), sch.2 |
| First Applicant: | SALWA BEGUM |
| Second Applicant: | MOHAMMAD AMIN |
| Third Applicant: | TASHFIA LAIBAH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 942 of 2020 |
| Judgment of: | Judge Street |
| Hearing date: | 21 December 2020 |
| Date of Last Submission: | 21 December 2020 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2020 |
REPRESENTATION
The first applicant appeared in person via Microsoft Teams.
| Solicitors for the Respondents: | Ms K Evans, Sparke Helmore, Microsoft Teams |
ORDERS
The first applicant is appointed the litigation guardian for the third applicant and the Court dispenses with the need for the filing of any other document in that regard under the Federal Circuit Court Rules 2001 (Cth).
Leave is granted to the applicants to rely upon the amended application filed on 20 October 2020.
The oral application for an adjournment is refused.
The amended application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
The first applicant and the second applicant pay the first respondent’s costs fixed in the amount of $3,737.00.
DATE OF ORDER: 21 December 2020
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 942 of 2020
| SALWA BEGUM |
First Applicant
| MOHAMMAD AMIN |
Second Applicant
| TASHFIA LAIBAH |
Third 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 2 April 2020 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.
2.The applicant did not have, at the time of the application before the Tribunal, an approved nomination.
3.The applicant’s matter was listed today for a show cause hearing.
4.The applicant sought an adjournment on the basis of seeking to obtain legal representation in the COVID pandemic.
5.These proceedings were commenced on 20 April 2020. The applicant did not explain satisfactorily why she has not had ample time to obtain legal representation if able to do so.
6.Further, the Court has taken into account the complete absence of merit in the substantive application.
7.The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice.
8.The Court notes that the adjournment was also opposed by the first respondent.
9.It is for these reasons that the Court refused the oral application for an adjournment.
10.Nothing said by the applicant from the bar table identified any arguable case of relevant error by the Tribunal in affirming the decision of the Delegate in circumstances where the applicant did not meet the mandatory criteria.
The ground
11.The Court did grant leave to the applicant to rely upon an amended application, which raises the following grounds:
1. The Tribunal decision was affected by erred of law, procedural fairness, and jurisdictional error in relation to exercise its power to consider granting Employer Nomination (Permanent) (Class EN). The tribunal failed to consider Migration act and regulations rather consider Ministerial Direction No 69, which should be assessed as secondary criteria for the grant of a student visa sub class 186 Visa.
Particulars
The tribunal did not act on its judgement rather rely on Ministerial Direction 69 and influence by the delegates decision. 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 by considering secondary criteria Direction 69 of the Minister, rather failed to consider relevant information in the applications and other related factors surrounding sponsorship application and its approval as a nominated position as cook (ASZSCO 351411). The tribunal did not provide an opportunity to seek further employment nomination from different employer to comply /meet cl 186.223(2) visa sponsorship requirements.
2. The Tribunal made erred law and denial of natural justice not to provide an opportunity to seek employer and it was not consider the circumstances and did not seek any information's from the employer, why and what circumstances the business was not registered with the ASIC. The Tribunal did not explore or sought any clarifications from the employer and did not consider- COVID 19-pandemic global issues in relation to seek further and new employer for the position as a Cook (ASZSCO 351411). Tribunal erred in finding that the Tribunal had afforded procedural fairness to the applicant, and/or erred in finding that the Tribunal had complied with the procedures it was required to follow the Migration Act 1958 ("the Act").
Particulars
(a)Tribunal should have found that, by not disclosing particulars of the information 's for liquidations the restaurant sponsoring him alleged migration fraud, and document fraud by not paying Workcover, tax and others
(b)the Tribunal failed to accord procedural fairness (the provision of highly prejudicial information which is credible, relevant and significant to the decision to be made (Veal v MIMIA (2005) 225 CLR 88, paragraphs 20-24)) not being a matter with which Part V, Division 5 of the Act deals with;
(c)and/or failed to comply with section 357A(3);
(d)and/or failed to comply with section 359A(l) of the Act (as informed by section 357A{3), or in a manner consistent with section 357A(iii).
The formulation of the principle applied in VEAL may be traced to the observations of Brennan J in Kioa v West (1985) 159 CLR 550 at 629 that, as a matter of procedural fairness:
... in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.
In VEAL the High Court emphasised (at [17]) that:
"Credible, relevant and significant" must ... be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is "credible, relevant and significant" are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.
and said (at [27]):
... to conduct the review with procedural fairness, the appellant had at least to know the substance of what was said against him in the letter. Only then could he attempt to answer the suggestions made by the author of the letter that the appellant had reasons other than Convention reasons to absent himself from Eritrea and that he did not have a well-founded fear of persecution for a Convention reason.
Similarly, the question of whether relevant or, more to the point, relevant for the applicant to know about, cannot be answered merely by pointing to the fact that the AAT appeared to reach without taking them into account or by appearing sympathetic to the applicants own representations. That is not to suggest that AAT might have been subconsciously affected by the existence of the accusations. As the High Court pointed out in VEAL (at [19]) such a consideration is beside the point:
... asking whether, despite what was said in its reasons, the Tribunal may have been subconsciously affected by the information distracts attention from the relevant inquiry. The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision shouldthe decisionmaker have made, nor what reasons did the decision-maker give for the conclusion reached.
Were it not for the enactment of s 357A(l) I would accept the proposition in particular (i) that jurisdictional error had been committed by the AAT because it denied procedural fairness to the applicant in the way identified in VEAL. As will become apparent, I take the view that the AAT was obliged to disclose sponsors Liquidation for non-payments of Govt tax and others which was beyond the control of the applicant in any event under s 359A of the Act, and the accusations it contains, may also have a further significance, even if the failure to disclose them was shielded by the operation of s 35 7 A of the Act and even if disclosure of the information 's was not obliged bys 359A by the sponsor.
3. The tribunals decision was not supported and fully tested Hasran Vs MIAC [2010] FCAFC case. [Paragraph 19 of the AAT decision]. The tribunal failed to consider applicants sponsor Swissplus Pty Ltd ACN 161247628's winding up application by the Deputy Commissioner of Taxation on 16 June 2017 and reasons behind this winding up application which was unknown to the applicant and it was beyond the applicant's control. The tribunal did not provide an opportunity allow applicant further time to seek new employer for the nomination of the position as cook (ASZSCO 351411) from a new employer. The tribunal did not consider third party fault in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 [Judgment of Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Reydon and CrennanJJ] case.
4. The tribunal failed to warned refusal of employer nomination 186 visa and failed to provide an opportunity to allow applicant to seek further nomination from different employer. The applicant was unable to get any benefit for the Pandemic issues- COVID 19 issues surrounding factors such as lockdown states and territory, and closure of business in the state and territory by the govt orders.
12.The four grounds substantially overlap and in reality, seek impermissible merits review and advance arguments without substance. It is apparent on the face of the Tribunal’s reasons that the Tribunal complied with its statutory obligations in the conduct of the review and correctly identified the relevant law. The applicant was on notice of the want of an approved nomination because of the Delegate’s decision. Further the Tribunal wrote to the applicant on 10 March 2020 inviting the applicant to comment on the sponsor being deregistered and its impact on the need for an approved nomination. There was no response to the invitation. It was reasonable for the Tribunal to proceed to determine the matter and no adjournment could have overcome the want of the approved nomination. The applicant’s want of control over the approved nomination does not identify any error. There is no apparent denial of procedural fairness or natural justice by the Tribunal. The grounds have not identified any arguable case of relevant error by the Tribunal. The grounds otherwise fail to recognise or address the essential criteria that the applicant failed to meet, which was an approved nomination in accordance with cl 186.233(2) of Sch 2 of the Migration Regulations 1994 (Cth).
13.In these circumstances, no arguable case of relevant error is disclosed by the amended application.
14.The Court is satisfied that the amended application has not raised an arguable case for the relief claimed.
15.The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers in rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding fifteen (15) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 21 December 2020 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Date: 10 February 2021
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