Hasan v MIBP
[2016] FCCA 1049
•13 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HASAN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1049 |
| Catchwords: MIGRATION – Regional Employer Nomination (Class RN) visa application – review of decision of Migration Review Tribunal – Subclass 187 – whether the Tribunal misinterpreted cl.187.233 of sch.2 to the Migration Regulations 1994 (Cth) – whether the Tribunal’s decision was biased – no jurisdictional error – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), reg.5.19, cll.187.111, 187.233 of sch.2, para.1114C of sch.1 |
| First Applicant: | MIR MAHFUZ HASAN |
| Second Applicant: | SYEDA MONJILA KHATOON |
| Third Applicant: | SARAH SIMRIN HASAN |
| Fourth Applicant: | MIR ZAHIN HASAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 901 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 26 April 2016 |
| Date of Last Submission: | 26 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2016 |
REPRESENTATION
| The First Applicant appeared in person |
| Counsel for the First Respondent: | Mr G. Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 901 of 2015
| MIR MAHFUZ HASAN |
First Applicant
| SYEDA MONJILA KHATOON |
Second Applicant
| SARAH SIMRIN HASAN |
Third Applicant
| MIR ZAHIN HASAN |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are citizens of Bangladesh who arrived in Australia on 13 May 2007. On 30 May 2013 they applied for a Regional Employer Nomination (Class RN) visa. The first named applicant was the primary applicant and it is convenient to refer to him as the applicant.
There was one subclass of the visa for which the applicant applied: subclass 187. That subclass had four streams each with different criteria. The applicant sought to meet the criteria for the Direct Entry stream. The criteria relevant to that stream included those in cl.187.233 of sch.2 to the Migration Regulations 1994 (Cth) which provided:
(1) The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of:
(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; and
(b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2)The person who will employ the applicant is the person who was the nominator in the application for approval.
(3)The Minister has approved the nomination.
(4)The nomination has not subsequently been withdrawn.
(5)The position is still available to the applicant.
(6)The application for the visa is made no more than 6 months after the Minister approved the nomination.
These criteria make it plain that, in order to obtain this subclass of visa, the Minister must have approved the nomination of the position to which the application relates.
In simple terms, the process is as follows: the visa applicant applies for the visa on the basis of a position with an employer; the employer applies to the Minister for approval of that position; the Minister considers that application and either approves the nomination or does not. If the nomination is not approved, the applicant does not meet the criteria for the visa and is refused the visa.
Importantly, the effect of sub-cl.187.233(1)(b) is that the nominated position can only be the position referred to in the visa application. Given the importance of that to these proceedings it is necessary to explain the reasons for that in more detail.
The term “application for approval” was defined in cl.187.111 to mean “an application under regulation 5.19 for approval of the nomination of a position.”
Paragraph 1114C of sch.1 to the Regulations (which is referred to in sub-cl.187.233(1)(b)) sets out the requirements of an application for a Regional Employer Nomination (Class RN) visa. Subparagraph 1114C(3)(d) relevantly required that:
(d)An applicant seeking to satisfy the primary criteria must declare in the application that the position to which the application relates is a position nominated:
(i)under regulation 5.19; or
(ii)in accordance with a labour agreement that is in effect, by an employer that is a party to the labour agreement.
Thus, sub-cl.187.233(1)(b) required the relevant position to be subject to a declaration in the application itself.
The visa application in this case referred to an application for nomination of a position by the inclusion of a transaction reference number (EGO34B87FX). Although there was no direct evidence of what that meant, both the delegate and the Migration Review Tribunal stated that this was a reference to an application by Wrap & Grill Pty Ltd (“Wrap & Grill”) for approval. The applicant did not dispute that.
The difficulty for the applicant was that the application for approval by Wrap & Grill was refused by a delegate of the Minister on 6 December 2013. On 21 January 2014 a delegate found that this meant that the applicant could not satisfy the criterion in sub-cl.187.233(1)(3) and so refused the applicants’ application.
The applicant applied to the Tribunal for review of the decision to refuse them a visa. Wrap & Grill also applied to the Tribunal for review of the decision not to approve the nominated position.
The Tribunal conducted a hearing on 10 December 2014 in respect of both of those applications. On 10 February 2015 the Tribunal affirmed the decision not to approve the nominated position.
On 12 February 2015 the Tribunal wrote to the applicant setting out the fact that it had affirmed the decision not to approve the nominated position and indicating that this meant that the applicant could not meet the requirements for the grant of the subclass 187 visa.
The applicant’s agent replied by email on 25 February 2015 saying that the applicant had now obtained sponsorship from a different firm which had lodged an application for approval. The agent requested the Tribunal to wait for the determination of that application and then to base its decision on that nomination. The Tribunal declined that request and made its decision to affirm the delegate’s decision on 12 March 2015.
The Tribunal explained in its reasons for decision that it had taken that course because the relevant position had to be the one that was in the visa application, and so the later nomination could not help the applicants satisfy the criteria for the grant of the visa.
The reason for the Tribunal’s decision was that the nomination made by Wrap & Grill was not approved.
The applicant now seeks judicial review of the Tribunal’s decision.
Consideration
The grounds in the application are that the Tribunal did not apply the law correctly and misinterpreted cl.187.233 of sch.2 to the Regulations. The applicant did not file any written submissions explaining this ground.
The applicant appeared unrepresented at the hearing. Initially, he asked for an adjournment on the basis that he had obtained another position and the application for approval of that position had not yet been determined by the Department. The applicant indicated that he had made another visa application on the basis of that position. When the adjournment application was unsuccessful, I asked the applicant to explain what error he said that the Tribunal had made. He said that the Tribunal member might have been biased because of some connection with the local council. In essence, as I understand it, his argument was that the nomination of the position had not been approved because of the local council and the Tribunal’s decision to affirm the delegate’s refusal to approve the position must have had something to do with the council.
The first difficulty with the argument is that it concerns a decision that is not the subject of these proceedings. These proceedings only concern the decision to refuse to grant the applicant a subclass 187 visa.
The second difficulty is that there is no evidence of any connection, communication or anything else between the Tribunal and the local council. In short, the allegation of bias is entirely speculative and is rejected.
The grounds in the application are also rejected. As I have noted, the reason for the Tribunal’s decision was that the nomination made by Wrap & Grill was not approved. That much was not contested. The consequence of that was, as the Tribunal concluded, that the applicant did not satisfy the criteria in cl.187.233. It was not possible for the applicant to do so by relying on the later application for approval because that was not in the visa application: sub-cl.187.233(1)(b). For that reason the Tribunal’s decision was not affected by jurisdictional error and the application must be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 13 May 2016
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