Begum v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 885
Federal Circuit and Family Court of Australia
(DIVISION 2)
Begum v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 885
File number(s): SYG 3024 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 28 October 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Subclass 187 visa refusal – no approved nomination – whether jurisdictional error is made out – no jurisdictional error made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 65
Migration Regulations 1994 (Cth) Part 187 of Schedule 2 cl 187.233
Covid 19 Special Measures Practice Direction – Migration and Refugee Division s 6.1
Cases cited: Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of last submission/s: 24 October 2022 Date of hearing: 24 October 2022 Place: Sydney Counsel for the Applicants: The Applicants appeared in person. Solicitor for the Respondents: Ms Wong appeared on behalf of the First Respondent. ORDERS
SYG 3024 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FATIMUNNISSA BEGUM
First Applicant
SHOWKATH ALI MOHAMMED
Second Applicant
JUVERIA BEGUM
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
28 October 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant is to pay the First Respondents costs, fixed in the sum of $5400.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicants are citizens of India. The first applicant is the spouse and mother of the second and third applicants respectively. On 17 March 2018, the applicants applied for Regional Employer Nomination (Permanent) (Class RN) visas, under s 65 of the Migration Act 1958 (Cth) (“the Act”). At that time, the Class RN, contained one subclass, which was the Subclass 187 (Regional Sponsored Migration Scheme).
On 16 March 2020, a delegate of the Minister for Home Affairs (“the delegate”) refused to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas, because the applicant did not meet cl 187. 233 (3) of Schedule 2 of the Regulations, as the first applicant was not the subject of an approved nomination.
In a decision dated 2 December 2020, the Administrative Appeals Tribunal (“the Tribunal”) affirmed the delegate’s decision not to grant the applicants their Regional Employer Nomination (Permanent) (Class RN) visas.
The applicants now seek judicial review of the Tribunal’s decision in this Court.
ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The decision record begins from paragraph 1 to 14 by outlining the procedural background of the applicant’s visa application.
The criteria for the grant of a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The primary criteria must be satisfied by at least one applicant. Any other members of the family unit who are applicants for the visa, only need to satisfy the secondary criteria. Applicants who seek to satisfy the primary criteria, must meet the “Common Criteria”, as well as the criteria of one of two alternative visa streams, which are: the Temporary Residence Transition stream or the Direct Entry stream.
In this case, the first applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of a Café or Restaurant Manager.
The Tribunal hearing was conducted using the audio function of Microsoft Teams, as the first applicant had previously indicated she did not feel comfortable with a video hearing
At paragraph 15 of the decision record, the Tribunal notes that the issue in this case, was whether the first applicant is the subject of an approved nomination.
Paragraphs 16 to 24 of the Tribunal decision record relates to the applicants considerations and claims in relation to whether there is an approved nomination.
At paragraph 25 of the Tribunal decision record, it found that cl 187.233 of the Regulations was not met, as the first applicant was not, at the time of the decision the subject of an approved employer nomination
At paragraph 28 of the decision record, the Tribunal affirmed the delegate’s decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.
GROUNDS OF JUDICIAL REVIEW
The applicants rely on three grounds of judicial review. The grounds of judicial review are contained within an Initiating Application filed with the Court on 24 December 2020. The grounds are as follows verbatim:
Particular:
The 1st applicant repeatedly requested the Tribunal Officials that she is not feel comfortable to provide an interview through video or audio. Hence, she sent an email to the Tribunal on 7 October 2020 that she feels confident to provide a face-to-face interview for her matter.
Ground 1:
i.The AAT (Administrative Appeals Tribunal) breached the rules of natural justice not to giving the 1st applicant for face-to-face hearing at the AAT Office or somewhere else as the 1st applicant requested.
ii.The applicants were nominated by a regional catering company for restaurant/cafe manager (ANZSCO 141111) under subclass 187, direct entry scheme on dated 17 March 2018. Along with nomination application the 1st applicant and secondary applicants also applied subclass 187 (direct entry).
iii.The applicants did not know that the sponsor Triple C Catering Pty Ltd (the nominator) has withdrawn the nomination application on 7th February 2020.
iv.When the 1st applicant understood that the nomination application was withdrawn without knowledge of her, then she tried to find another nomination for subclass 187 while the review application of the applicants is pending with the AAT. Unfortunately it was a bit hard for her to find a new nomination due to COVID-19 (Corona) Pandemic spread all over NSW and it was very hard for her to move regional areas NSW for strict lockdown and social dis new nomination.
v.Unfortunately, the Tribunal did not give an opportunity for face-to-face hearing. Contrarily the Tribunal forced the applicant for telephone hearing is amount to breach the rules of natural justice that led to an error of law. Therefore, the Tribw1al's decision should be set aside and redirect the matter by this court for re-hearing- appointing a new Tribunal Member to the AAT.
vi.The Tribunal should be given an opportunity to the 1st applicant for face-to-face hearing or an extension of time to find another nominator for her subclass 187 visa application.
vii.The responsibility of withdrawing nomination application for the subclass 187 (direct entry scheme visa) did not come from P1 applicant. As an innocent party, the Tribunal should be given all benefits of its discretionary power to the applicants as if 1st applicant can manage another nomination as earliest possible before the dismissal review application with the AAT is finalised.
Particular:
The Tribunal exercised its discretion to hold the hearing by telephone and the hearing was held during the COVID-19 Pandemic. The Tribunal dete1mined it was unreasonable to hold a hearing by telephone heaving regard to the nature of this matter and the individual circurnsta11ce of the applicant. The Tribunal also had regard to the Tribunal Objective of providing a mechanism of the review that is fair, just economical and quick, and the delay to the matter if the hearing was not conducted by telephone.
Ground 2:
i.The Tribunal has misused its discretionary power making a negative decision amid severe economic bad affects on the hospitality sector due to COVID -19 (Pandemic).
ii.The nomination application was made on 17 March 2018 and it was approved by the RCB (Reginal Certifying Body) and withdrawn on 7 February 2020 by the business owner due long delay of processing of the nomination application by the Department the nominator withdrawn nomination application without the knowledge of 1st applicant.
iii.When the nomination was withdrawn (7/2/2020) then the COVID-19 was fully affected, in Australia and the 1st applicant was wait for 2 years and believing that if the nomination is approved, she would be getting her subclass 187 visa.
iv.The benefit of delay and delay of processing the nomination application made by the Triple C Catering Service Pty Ltd have affected the 1st applicant a lot with money and time. Therefore, the Tribunal should be given an opportunity for face-to-face interview to the applicants meanwhile the 1st applicant would be able to get a new reapply her subclass 187 visa.
v.The discretion for the Tribunal should be used for the benefit of the review applicant in this time due to delay of nomination application by the Department due to severe bad affects of COVID -19 on the business (Tiple C Catering Pty Ltd).
vi.Therefore, the decision made by the Tribunal Member of the AAT should be set a site by this court
Ground 3:
The AAT Member found that there is not nomination according to section 187.233(3) of the Schedule 2 to the Migration Regulation relating to the review applicant application, therefore the application should be set aside.
Particular:
This court should be set aside the decision made the Tribunal member where the Tribunal affirms the decision not grant the applicants a Regional Employer Nomination considering COVID -19 (Pandemic) severe bad affects accommodation and hospitality business.
THE APPLICANTS SUBMISSIONS
The first applicant appeared before the Court unrepresented on her own behalf and that of her husband and child. The first applicant did not request the assistance of an Interpreter. The Court was satisfied that the first applicant was able to effectively participate in the hearing. Prior to the hearing commencing, the Court ensured that the first applicant was in possession of a copy of the relevant Court Books and that a copy of the first respondent’s submissions had been served upon her. The Court also ensured that the first applicant had access to a pen and paper so she could makes notes during the course of the hearing if she wished to.
At the commencement of the hearing, the Court explained was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the process by which the hearing would be undertaken.
Notwithstanding Court orders, no written submissions or other material was supplied by the first applicant in support of her case. The first applicant told the Court she had been deceived by her employer who did not tell her that they had withdrawn the employer nomination. Since then she has left the hospitality industry and found new employment in the Information Technology area where she hoped to make a long term career. The first applicant told the Court that she applied to the Tribunal to get more time to enable a fresh application for a visa to be lodged. The first applicant understood that she could not be granted the visa under consideration without an approved employer nomination.
CONSIDERATION
In Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
Grounds one and two can be dealt with together. It was first contended that the Tribunal beached is ‘natural justice obligations’ and misused its discretionary powers by failing to provide the first applicant with a face to face hearing. Further, the first applicant contended that she should have been ‘given all the benefits of the [Tribunal’s] discretionary power’ so that she could obtain a new nomination before the dismissal review application was finalised.
As submitted by the first respondent, the Tribunal has discretion under s 366(1) of the Act to conduct a hearing by any of the modes referred to in that section, including by telephone or any other means of communication, which it may exercise of its own motion and an applicant has no “right” conferred by s 360 or s 360A of the Act to appear in person before the Tribunal: (see; Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525 at [28]).
The Court is satisfied that the discretion exercised by the Tribunal to conduct the hearing by Microsoft Teams, with the first applicant attending via audio facility, was reasonable in all the circumstances. The Tribunal set out a comprehensive set of reasons at paragraph 10 of the decision record in support of its decision not to hold an in-person hearing including that: first, the primary applicant told the Tribunal that she had an appropriate device to participate in the hearing by video or audio and second, the Tribunal had informed the applicant in a letter dated 17 November 2020 that it would not hold the hearing in person without exceptional circumstances as set out in s 6.1 of the Covid 19 Special Measures Practice Direction – Migration and Refugee Division. The Tribunal, in the Courts view, properly concluded that this matter was not complex and that the holding of the hearing via Microsoft Teams would provide a fair opportunity for the first applicant to give evidence and present arguments. In the Court’s view, no jurisdictional error arises as a result of the Tribunal’s decision to hold the hearing via Microsoft Teams.
In relation to the second part of the contention, that the first applicant required an in-person hearing to have “more time to find another nominator” this was never put to the Tribunal for consideration and is misconceived. Clause 187.223(3) of the Regulations can only be satisfied by approval of the original nomination which accompanied the visa application. It cannot be assessed against the new nomination application subsequently lodged by an employer: (see; Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (“Singh”) at [82] - [90]). Grounds one and two have no merit.
Ground three is similarly misconceived. It asks the Court to set aside the Tribunal’s decision because the COVID 19 pandemic had “severe bad affects [on the] accommodation and hospitality business”. This is not a proper ground of judicial review and fails to allege or identify any jurisdictional error in the Tribunal’s decision. The effects of COVID 19 on the hospitality industry were not relevant and if anything seek to ask the Court to conduct impermissible merits review.
The Court also notes the submission by the first respondent that even if jurisdictional error was established (which is not conceded) it would be futile to remit the matter back to the Tribunal for redetermination. This is because cl 187.233 of Schedule 2 to the Regulations requires the applicant to be the subject of an approved nomination “at the time of the decision”. This criterion can only be satisfied by the approval of the original nomination which accompanied the visa application. That is, it cannot be assessed against the new nomination application subsequently lodged by different employer: (see; Singh) above cited.
The decision of the Tribunal in the circumstances of the applicant was the only decision that was available to it. The Court is satisfied ground three has no merit.
As the applicant is unrepresented, the Court has perused the Tribunal decision record but is unable to ascertain any unarticulated jurisdictional error.
CONCLUSION
As none of the grounds of judicial review have any merit the Court has no option but to dismiss the application.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 28 October 2022
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