El Chediac v Minister for Immigration

[2012] FMCA 1225

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EL CHEDIAC & ORS  v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1225

MIGRATION – Review of Migration Review Tribunal decision – refusal of an employment residence visa – applicant not having an approved sponsor – no jurisdictional error.

Migration Act 1958 (Cth), ss.48, 359A
Migration Regulations 1994 (Cth)

Minister for Immigration v Saba Bros Tiling Pty Ltd [2011] FCA 233

Saba Bros Tiling Pty Ltd v Minister for Immigration & Anor [2010] FMCA 598

First Applicant: MAROUN NASSIM EL CHEDIAC

Second Applicant: SAADA AYOUB

Third Applicant: PASCALE EL CHEDIAC

Fourth Applicant: ELIAS EL CHEDIAC

Fifth Applicant: CHARBEL EL CHEDIAC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1603 of 2012

Judgment of: Driver FM

Hearing date: 18 December 2012

Delivered at: Sydney

Delivered on: 18 December 2012

REPRESENTATION

Mr T Laba-Sarkis assisted the Applicant

Solicitors for the Respondents: Ms L Buchanan
Australian Government Solicitor

ORDERS

1. The application filed on 24 July 2012 is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1603 of 2012

MAROUN NASSIM EL CHEDIAC

First Applicant

SAADA AYOUB

Second Applicant

PASCALE AYOUB

Third Applicant

ELIAS EL CHEDIAC

Fourth Applicant

CHARBEL EL CHEDIAC

Fifth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Migration Review Tribunal.  The decision is dated on its face 4 July 2012 and was certified on behalf of the Tribunal’s District Registrar the following day.  The Tribunal affirmed decisions of a delegate of the Minister not to grant the five applicants employer nomination residence visas.  Those applicants are the principal applicant, Mr El Chediac, his wife and, I understand, his three adult children.

2. The following statement of background facts relating to this matter is derived from the Minister’s outline of submissions filed on 11 December 2012. 

3. On 21 May 2008, the applicants, who are citizens of Lebanon, applied under the Employer Nomination Scheme (ENS) for a Subclass 856 visa with Maroun El Chediac, the first applicant in these proceedings, as the primary visa applicant. The first applicant's wife, Saada Ayoub, and three children, Pascale El Chediac, Elias El Chediac and Charbel El Chediac were included in the visa application as the first applicant's dependents. The application for the Subclass 856 visas was based upon the first applicant's nomination by Saba Bros Tiling Pty Ltd (Saba Bros) for a nominated position as a wall and floor tiler under the ENS.  On the same day, Saba Bros applied for an approved appointment under the ENS pursuant to regulation 5.19 of the Migration Regulations1994 (Cth) (the Regulations) [1]. Any references in this judgment to the applicant are references to Mr Maroun El Chediac.

   [1] Relevant Documents (RD) 1-89

4. The application for approval for a nominated position by Saba Bros was refused by a delegate of the Minister on 9 October 2008.  As Mr El Chediac did not have an approved appointment, he was unable to satisfy the requirements of clause 856.221 of Schedule 2 of the Regulations and consequently the delegate refused to grant the applicants the subclass 856 visa on 10 October 2008[2].

   [2] RD 28-43

5. Saba Bros sought judicial review of a decision of the Tribunal affirming the decision not to approve its application for the nominated position in the Federal Magistrates Court.  Saba Bros was successful[3] and also succeeded on the appeal brought by the Minister in the Federal Court of Australia, judgment in which was given on 18 March 2011[4]. The matter was remitted to the Tribunal for consideration according to law and on 25 November 2011, the Tribunal again affirmed the decision to refuse Saba Bros for an approved appointment under the ENS[5].

   [3] Saba Bros Tiling Pty Ltd v Minister for Immigration & Anor [2010] FMCA 598

   [4] Minister for Immigration v Saba Bros Tiling Pty Ltd [2011] FCA 233

   [5] RD 62

6. On 9 May 2012, the Tribunal wrote to the applicants, via their migration agent, seeking their comment on information that Saba Bros' application for an approved appointment had been refused[6]. They responded, via their migration agent, by asking that the Tribunal invite them to a hearing[7].

   [6] RD 62-63

   [7] RD 64

7. On 3 July 2012, the applicants, along with their migration agent, attended the Tribunal[8].  An interpreter was also in attendance as requested by the applicants in their Response to Hearing Invitation[9].

   [8] RD 79

   [9] RD 76-78

8. On 4 July 2012, the Tribunal affirmed the decision not to grant the applicants the Subclass 856 visas.  The Tribunal found that whilst Mr El Chediac was nominated by Saba Bros under clause 856.213(a) at the time of the application, that nomination was not approved and not in effect at the time of the Tribunal's decision. As a result Mr El Chediac did not satisfy clause 856.221 of Schedule 2 to the Regulations which requires, among other things, that the appointment mentioned in clause 856.213(a) has been approved.

9. The Tribunal did not accept that any of the secondary applicants met the primary criteria for a visa nor that any of the applicants could meet the criteria for a subclass 857 visa.  It therefore affirmed the decision under review.

10. These proceedings began with a show cause application filed on 24 July 2012.  The applicants continue to rely upon that application.  There are three grounds in the application:

    1. The Migration Review Tribunal had before it that my sponsor was and continues to be a successful business which generate millions of dollars and employs many skilled workers yet failed to approve my visa application.  I was personally not aware nor was my sponsor that my sponsor was never an approved sponsor.

    2. I have been working with my sponsor for over ten years and as a taxpayer I have not been aware neither by my sponsor nor my migration lawyer that my sponsor’s sponsorship previously failed.

    3. The Tribunal in its decision point 15 indicated that a letter was sent on 9 May 2012 inviting to comment on or respond to certain information.  I am not aware of that letter but I am aware that my sponsor continued to employ me and at no stage became aware of being no approved sponsor.

11. I have before me as evidence the book of relevant documents filed on 4 September 2012 and two affidavits by Mr El Chediac which annex a number of documents.  Those include a purported transcript of the hearing conducted by the Tribunal with Mr El Chediac and a purported transcript of an earlier hearing on a sponsorship application by Saba Bros.  I received those affidavits, subject to relevance.

12. On its face, this case is a simple one.  In order to qualify for the class of visa he was seeking, Mr El Chediac required an approved sponsor.  At the time of the Tribunal decision he did not have an approved sponsor because his employer, Saba Bros had been unsuccessful in its sponsorship application.  That matter has had a somewhat protracted history and I was involved in the review of an earlier decision of the Tribunal concerning Saba Bros[10].  The outcome of those proceedings was that the Federal Court remitted to the Tribunal the Tribunal’s earlier decision for redetermination according to law[11].  On that redetermination Saba Bros was again unsuccessful.

    [10] Saba Bros Tiling Pty Ltd v Minister for Immigration & Anor op cit

    [11] Minister for Immigration v Saba Bros Tiling Pty Ltd op cit

13. It is apparent from the transcript of Mr El Chediac’s hearing that the insuperable problem confronting him was put to him at the Tribunal hearing. He conceded that he was aware that Saba Bros had not been approved as a nominated employer for him. The Tribunal also invited comment on the obviously adverse information of that lack of approval pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act). In the absence of an approved sponsor there was no option for the Tribunal but to affirm the decision of the delegate.

14. The grounds of review advanced by Mr El Chediac all go to the merits of his circumstances which extend beyond even the merits of the Tribunal decision.  Plainly, those merits are beyond the scope of these proceedings. 

15. I gave leave for Mr Toufic Laba-Sarkis, a community representative, to speak on behalf of Mr El Chediac at today’s hearing. Mr Laba-Sarkis told me a number of things. He told me that Mr El Chediac and his family have been in Australia for a number of years and that he has been working consistently with Saba Bros and is well respected in his employment. He told me that Mr El Chediac initially was working on a class 457 visa, but wished to achieve permanent residency. It was for that reason that he sought the class of visa which he was refused. Unfortunately, it appears that in the light of that refusal, s.48 of the Migration Act presents a barrier to him again applying for a class 457 visa. At the moment he remains in Australia with his family on bridging visas. Mr Laba-Sarkis also told me that Saba Bros was, at the time of the Tribunal decision, an approved sponsor. While this was presented to me as pointing to an error of fact by the Tribunal, on examination the documents annexed to the second affidavit by Mr El Chediac, to the extent that they point to anything, point only to the possible approval of Saba Bros, as an approved sponsoring employer for the purposes of class 457 visas. That could have had no impact on the outcome of this Tribunal decision.

16. The documents annexed to Mr El Chediac’s second affidavit also include a document headed “Application for Employer Nomination for a Permanent Appointment”.  That document indicates that Saba Bros may have sought approval as a sponsor for the purposes of visa subclass 186.  Again, that application could not have had any impact on the outcome of the proceedings before the Tribunal in relation to the class of visa sought by Mr El Chediac and the other members of his family. 

17. It is unfortunate that Mr El Chediac’s efforts to achieve permanent residency may have led him to a cleft stick.  He is unable to proceed either forwards or backwards.  Mr El Chediac has had the benefit of a bridging visa while the proceedings in this Court have been on foot.  It is plain to me that there is no jurisdictional error in the decision of the Tribunal.  In the circumstances the decision of the Tribunal is a privative clause decision and I must dismiss the judicial review application. 

18. Mr El Chediac, if he wants to further extend his stay in Australia on a bridging visa, has a right of appeal, although I could not hold out any hope that such an appeal would be successful.  The Minister has broader powers available to him than the Tribunal to consider comprehensively the circumstances of Mr El Chediac and his family and what might be appropriately done to deal with his circumstances.  That is a matter for the Minister to give such consideration as he considers appropriate. 

19. In consequence of the dismissal of the application the Minister seeks an order for costs against all applicants.  I understand that all of the applicants are over the age of 18 years.  For his part, Mr El Chediac does not resist an order for costs, and I understand he would pay those costs to the extent that he is able as quickly as he is able.  I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  19 December 2012