Bhuiyan v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 194
Federal Circuit and Family Court of Australia
(DIVISION 2)
Bhuiyan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 194
File number(s): SYG 3039 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 14 March 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Temporary Work (Skilled) (subclass 457) visa – whether Tribunal took wrong construction of the law – whether Tribunal failed to consider applicant’s claims – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) s 347, 412
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Migration Regulations 1994 (Cth) reg 4.02
Cases cited: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 9 March 2023 Date of hearing: 9 March 2023 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Strugnell ORDERS
SYG 3039 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMMAD FAISAL HOSSAIN BHUIYAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
14 March 2023
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 to pay the First Respondents costs, fixed in the sum of $7467.00.
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 applicant is a citizen of Bangladesh. The applicant applied for a Temporary Work (Skilled) (subclass 457) visa (“Skilled Work visa”) on 29 August 2017. The applicant was nominated for the position of a Cook by his sponsor Bondisands (Investments) Pty Ltd (“the sponsor”). On 20 April 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his Skilled Work visa on the basis that he was not the subject of an approved nomination.
On 7 May 2019, the applicant sought merits review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision not to grant the applicant his Skilled Work visa on 19 November 2019 upon finding that it did not have jurisdiction to review the delegate’s decision.
The applicant now seeks judicial review of the Tribunal’s decision in this Court.
The administrative appeals tribunal decision
At paragraph 1 of its decision record, the Tribunal notes that an application was filed on 7 May 2019 to review a decision not to grant the applicant a Skilled Work visa.
At paragraph 2, the Tribunal outlines that a review application can be made pursuant to ss 347 and 412 of the Migration Act 1958 (Cth) (“the Act”), or s 29 of the Administrative Appeals Tribunal Act 1975 (Cth). The types of decisions that are reviewable by the Tribunal in the Migration and Refugee Division of the Tribunal are outlined in ss 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) (“the Regulations”).
At paragraph 3, the Tribunal states that a Skilled Work visa can be reviewed if the visa application was made while the applicant was in the migration zone and either the applicant is sponsored by an approved sponsor or if a sponsor application has been refused and there is a review application on foot.
At paragraph 4, the Tribunal notes that on 20 April 2019 the Department of Home Affairs refused a nomination application lodged by the Sponsor, nominating the applicant. No review application was filed in relation to this decision. The Tribunal wrote to the applicant on 23 May 2019 inviting him to comment on the above information that he was not sponsored and that no review application was lodged in relation to the decision to refuse the sponsor application.
At paragraph 5, the Tribunal records that on 6 June 2019 the applicant, through their representative, indicated that the applicant and the sponsor had requested the Department of Home Affairs to not process applicants until after 13 May 2019. This request included a letter from Diamond Conway Lawyers addressed to the Department of Home Affairs.
At paragraph 6, the Tribunal discloses the contents of the letter, including that the sponsor had been issued a three month bar due to failing to meet its sponsorship obligations. The Tribunal stated that the contents of the letter did not address the position of the applicant and that the difficulty is that the sponsor did not seek to review the nomination refusal decision.
At paragraph 7, the Tribunal states that none of the applicant’s submissions and responses to the Tribunal’s invitation to comment, indicate that a review application was lodged. Accordingly, the applicant was not sponsored or nominated at the time the review application was lodged.
At paragraph 8, the Tribunal found that the delegate’s decision was not reviewable in the circumstances and the application for review was no properly made, meaning the Tribunal did not have jurisdiction in the matter.
Grounds of judicial review
The applicant’s grounds of judicial review are contained within an Amended Initiating Application filed with the Court on 20 January 2021, following service of the First Respondent’s written submissions to the initial application. The Court notes the First respondent does not object to leave being granted for the applicant to rely upon the Amended Initiating application. Accordingly leave is granted The new grounds relied upon are as follows as they appear in the application:
Ground One:
The Tribunal fell into error by taking wrong construction of Part 5 of the Migration Act 1958 (Cth) and Migration Regulation 1994 (Cth).
Particulars:
The Tribunal based its reasoning on factual assumptions [Paragraph 8] without taking consideration to rule 4.02 of the Migration Regulation 1994 that the application in question is reviewable pursuant to the Migration Act and Regulation.
Ground Two:
The Authority fell into error by failing to deal with an integer of the Applicant’s claims leading to a failure to exercise jurisdiction.
Ground two of the applicant’s grounds were not supported by any particulars.
The applicant’s submissions
The applicant appeared before the Court unrepresented. The applicant was assisted by an Interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the first respondent’s written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so 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 procedure by which the hearing would be undertaken. The applicant was advised that if the Court delivered its reasons for judgement ‘ex tempore’ he could request a written copy of the reasons simply by contacting the Court.
Despite Court orders, no written submissions or other material was provided to the court by the applicant in support of his case. The Court discussed with the applicant that, in order to be granted the type of visa he sought he needed to either have at the time of the decision of the Tribunal either an approved employer nomination or that the decision not to approve his employer nomination was itself the subject of a review application to the Tribunal. The applicant confirmed that he had read and understood the first respondent’s written submissions that his grounds of judicial review were misconceived. The applicant told the Court he had nothing further to say.
At the conclusion of the respondent’s oral submissions, the applicant was asked if you wish to state anything in reply. The applicant answered “No”.
THE FIRST RESPONDENTS SUBMISSIONS
Ground one relies on reg 4.02 of the Migration Regulations 1994 (Cth) and contends that the application is not reviewable. The first respondent submits that this contention is misconceived as the decision of the delegate to refuse to grant the applicant a Temporary Work (Skilled) (subclass 457) visa is not a decision prescribed by reg 4.02 of the Regulations.
As the applicant was onshore when he made his application, reg 4.02(1) of the Regulations does not apply: (see; reg 4.02(4)(f)). Moreover, none of the other paragraphs of reg 4.02 (4) of the Regulations relate to a s 457 of the Act visa. In order for the applicant to be granted a visa he requested, being a 457 visa he needed to satisfy one of the conditions in para 338(2)(d) of the Act.
In this case the applicant’s employer nomination by Bondisands (Investments) Pty Ltd had been refused and no review application against that refusal had been made. In addition, at the time of the delegate’s decision, Bondisands was not an approved sponsor having been issued with a three month bar on sponsoring visa applicants.
Ground two is a bland assertion of failing to deal with an integer of the applicant’s claims. The ground is also misconceived as it asserts that it was ‘the Authority” whereas in this case the matter was dealt with by the Tribunal. The issue for the Tribunal was whether or not it had jurisdiction, it was not required to consider any claims made by the applicant. In these circumstances, it cannot be said it failed to consider an integer of the applicant’s claims.
The first respondent did not press the submission contained within the written submissions as to futility on the basis that s 457 of the Act visas no longer exist.
CONSIDERATION
In order to be granted a s 457 of the Act visa, the applicant needed, as at the time of the decision of the Tribunal, to either have an approved employer nominator, or that there was a current review before the Tribunal in relation to a decision by the Minister to refuse the employer nominator. In the applicant’s case neither of these requirements were met. His employer nominator, Bondisands had been barred from nominations for a period of time due to a failure to comply with conditions attached to being an approved nominator. As at the time of the Tribunal decision, there is no approved nomination in place by Bondisands, nor was there any review of the decision to refuse the application before the Tribunal.
In these circumstances, the Tribunal was correct to find it had no jurisdiction. In relation to ground one, the Court agrees with the submission of the first respondent, that the ground is misconceived. The decision was not a decision prescribed by reg 4.02 of the Regulations. There was no requirement by the Tribunal to take into account considerations as to reg 4.02 of the Regulations.
Ground two was a bland assertion that the Tribunal (this being read in place of Authority in the applicants written ground of appeal) failed to deal with an integer of the applicant’s claims. Firstly, no particulars are provided as to what integer was not dealt with. If a ground of judicial review is not supported by particulars, for that reason alone, it is liable for dismissal: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]). Further, the applicant identified no integer that was not dealt with at the hearing. The applicant remained silent even when asked if you wished to say anything in support of his case.
Second, as the Tribunal found it had no jurisdiction, there was no requirement to deal with any integer of his claim. There is a strong suspicion, the ground two has been simply copied and pasted from a protection visa application involving the Immigration Assessment Authority, (hence the reference to the Authority, instead of the Tribunal), in failing to deal with an integer of the applicant’s claim would be relevant in such a matter. The ground has no relevance in the current factual circumstances.
Neither ground one or ground two have any merit.
CONCLUSION
Accordingly, in these circumstances, the application must be dismissed with costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 14 March 2023
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