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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hasan v MIBP [2016] FCCA 1049
Case
[2016] FCCA 1049
Decision Date
CaseChat Overview and Summary
Hasan (the applicant) sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse to grant him a protection visa. The Administrative Appeals Tribunal (AAT) had affirmed the Minister's decision. The matter came before the Federal Court of Australia.
The primary legal issue before the Federal Court was whether the AAT had erred in law by failing to adequately consider the applicant's claims of past persecution and well-founded fears of future persecution in his country of origin. Specifically, the court was asked to determine if the AAT had properly applied the principles of administrative law, including the duty to afford procedural fairness and the requirement for the Tribunal to make findings of fact based on the evidence before it.
Judge Smith found that the AAT had failed to provide adequate reasons for its decision, particularly in relation to the applicant's claims of past persecution. The Tribunal had not sufficiently engaged with the evidence presented by the applicant, nor had it adequately explained why it rejected certain aspects of his testimony. This failure amounted to an error of law, as it prevented the applicant from understanding the basis of the decision and therefore breached the requirements of procedural fairness. The court applied the principles established in cases concerning the adequacy of reasons for administrative decisions, emphasizing the need for tribunals to provide a clear and comprehensive explanation of their findings and reasoning.
The Federal Court ordered that the AAT's decision be set aside and remitted to the AAT for redetermination according to law.