Hmoud v Minister for Immigration

[2017] FCCA 1184

FEDERAL CIRCUIT COURT OF AUSTRALIA

HMOUD & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1184

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.140GB
Migration Regulations 1994 (Cth), Schedule 2 – cl.457.223
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases Cited:
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Re Commonwealth of Australia; Ex Parte Marks  [2000] HCA 67; (2000) 177 ALR 491

First Applicant: GHASSAN ABDEL RAOUF AHMAD AL HMOUD

Second Applicant: JIHAN NAWAF ALKALAF ALHAMMOURI

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3605 of 2016

Judgment of: Judge Emmett

Hearing date: 1 June 2017

Date of Last Submission: 1 June 2017

Delivered at: Sydney

Delivered on: 1 June 2017

REPRESENTATION

The Applicants appeared in person with the assistance of an Arabic interpreter.

Solicitors for the Respondents: Ms Sharon Sangha
(Mills Oakley)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3605 of 2016

GHASSAN ABDEL RAOUF AHMAD AL HMOUD

First Applicant

JIHAN NAWAF ALKALAF ALHAMMOURI

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. On 19 December 2016, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 25 November 2016 (“the Tribunal”) refusing to grant the applicants Temporary Business Entry (Class UC) visas.

2. The first applicant is the primary applicant. The second applicant is the wife of the first applicant, whose claims are wholly dependent on those of the first applicant.

3. On 13 April 2017, the applicants attended a directions hearing before a Registrar of the Court. The applicants were given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support, by 28 April 2017. On that occasion, the applicants were provided with the contact details of legal services providers and translating and interpreting services in documents headed in the applicants’ own language. 

4. At the request of the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the applicant’s application did not raise an arguable case for the relief sought.

5. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

6. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

7. The first respondent, in written submissions, accurately summarised the background of the applicants’ claims and the Tribunal’s decision, as follows:

   “Background

   3. On 28 June 2013, the applicants applied for Subclass 457 visas on the basis of a nomination of the first applicant (the applicant) by an approved sponsor, Jordano Commercial Services Pty Ltd (the sponsor): CB 1-12. On 19 April 2014, the Department refused the nomination application lodged by the sponsor: CB 85. On 28 April 2014, the delegate refused to grant the visas on the basis that the applicant was not the subject of an approved nomination. The delegate found the applicant did not satisfy cl 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth): CB 80-86.

   4. On 5 May 2014, both the applicant and the sponsor applied to the Tribunal for review of the respective delegates' decisions: CB 87-89, CB 116.

   5. On 20 May 2015, the Tribunal (differently constituted) affirmed the decision to not approve the nomination lodged by the sponsor. On the same day, the Tribunal (differently constituted) found it did not have jurisdiction to review the delegate's decision: CB 112-114. As a result of the decision of the Full Court in Ahmad, on 12 January 2016, the Federal Circuit Court remitted the matter, by consent: CB 117.

   The Tribunal

   6. On 3 May 2016, the re-constituted Tribunal invited the applicant to comment or respond to information that a differently constituted Tribunal had on 20 May 2015 affirmed the decision not to approve the nomination application lodged by the sponsor: CB 130-133.

   7. On 30 May 2016, the applicant informed the Tribunal that the sponsor had lodged a new nomination application and provided a copy of an acknowledgment letter from the Department, dated 30 May 2016: CB 141-143. Accordingly, the Tribunal (CB 166, [11]) “delayed inviting the applicant to appear before the Tribunal pending the Department making a decision about the nomination application.”

   8. The Department refused the new nomination on 19 September 2016. Accordingly, on 17 October 2016, the Tribunal again invited the applicant to comment or respond to this new information: CB 144-147. On 28 October 2016, the applicant responded that the sponsor had “lodged a review on the nomination application with the AAT. The case number of the review is 1616300” (CB 148-149).

   9. On 2 November 2016, the applicants were invited to attend a hearing before the Tribunal: CB 150-153. The applicants attended the hearing on 22 November 2016: CB 158-161. The applicant asked the Tribunal to delay making a decision until the Tribunal (differently constituted) finalised the review of the nomination refusal: CB 167, [13]. The Tribunal refused to delay its review further and proceeded to make a decision on 25 November 2016: CB 165-167.

   10. The Tribunal found there was no evidence before it that there was a current approved nomination in relation to the applicant. Accordingly, the Tribunal affirmed the decision under review on the basis that the applicant did not meet cl 457.223(4)(a): CB 167, [13].”

8. The applicants were unrepresented before the Court this morning. The first applicant appeared on behalf of both himself and the second applicant with the assistance of an Arabic interpreter.

9. The first applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with the Court’s directions or otherwise.

10. The first applicant tendered a letter, dated 7 October 2016 and marked Exhibit 2A, which was an acknowledgement from the Administrative Appeals Tribunal, differently constituted, of receipt of an application for review made by the applicant’s employer, Jordano Commercial Services Pty Ltd, in respect of a decision to refuse a business nomination application on 4 October 2016. 

11. Exhibit 2A informed the relevant personnel of Jordano Commercial Services Pty Ltd that the validity of the application had not yet been assessed and that the Administrative Appeals Tribunal had requested the Department of Immigration and Border Protection (“the Department”) to provide all documents and files which they considered to be relevant to the application. The letter also invited Jordano Commercial Services Pty Ltd to send any further material or written arguments that it wished the Administrative Appeals Tribunal to consider.   

12. The first applicant confirmed that he continued to rely on the ground contained in the initiating application, filed on 19 December 2016, as follows:

    “1. Jurisdictional error by not considering that the nomination is under review with the AAT.”

13. The ground of the application was interpreted for the first applicant and he was invited to say whatever he wished in support of that ground.

14. The first applicant said that the Tribunal had had regard to the delay in the finalisation of the review application in respect of Jordano Commercial Services Pty Ltd and that that delay was not his fault. 

15. The Tribunal recounted the history of the first applicant’s application for a subclass 457 visa. In particular, the Tribunal noted that cl.457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) required there to be an approved nomination of an occupation relating to the first applicant by a standard business sponsor that had not ceased. The Tribunal noted that the first applicant had applied for the visa on the basis of his proposed employment with the sponsoring employer, Jordano Commercial Services Pty Ltd, in the occupation of corporate services manager. 

16. The Tribunal noted that the first applicant had applied for Temporary Business Entry visas on 28 June 2013, which was refused on 28 April 2014 on the basis that cl.457.223(4)(a) of the Regulations was not met because a delegate of the first respondent had refused a nomination application lodged by Jordano Commercial Services Pty Ltd on 19 April 2015.

17. The Tribunal noted that on 20 May 2015, the Administrative Appeals Tribunal affirmed the decision made by a delegate of the first respondent, refusing the nomination application lodged by Jordano Commercial Services. 

18. On 3 May 2016, the Tribunal wrote to the applicants inviting them to comment on certain information. That letter identified that on 20 May 2015 the Administrative Appeals Tribunal had affirmed the decision not to approve the nomination of Jordano Commercial Services Pty Ltd for the position of a corporate services manager, for which the applicant had been identified as the nominee. The letter noted that that information was relevant as it may lead the Tribunal to find that there was no current approved nomination in respect of the first applicant.

19. In response, on 30 May 2016, the applicants’ migration agent advised the Tribunal that Jordano Commercial Services Pty Ltd had lodged a new nomination application with the Department.

20. In its decision record, the Tribunal noted that it delayed inviting the applicant to appear before the Tribunal pending the Department’s decision about the new nomination application made by Jordano Commercial Services Pty Ltd. 

21. On 19 September 2016, the Department refused that second nomination in respect of Jordano Commercial Services Pty Ltd.

22. On 17 October 2016, the Tribunal wrote again to the applicants inviting them to comment or respond to the information that the second nomination of Jordano Commercial Services Pty Ltd has been refused by the Department. 

23. On 28 October 2016, the applicants’ migration agent wrote to the Tribunal informing it that the first applicant had told his migration agent that Jordano Commercial Services Pty Ltd had lodged a review on the refusal of the second nomination application with the Administrative Appeals Tribunal. The applicants’ migration informed the Tribunal that the case number of the review was 1616300.  I note that that case number is the same case number as identified on Exhibit 2A, which was an acknowledgment of that review application by Jordano Commercial Services Pty Ltd referred to above.

24. At the hearing before the Tribunal on 22 December 2016, the Tribunal noted that the first applicant stated he continued to work for Jordano Commercial Services Pty Ltd. The Tribunal noted that the first applicant had requested the Tribunal to delay making a decision until the Administrative Appeals Tribunal had completed its review in respect of the refusal of the second nomination application lodged by Jordano Commercial Services Pty Ltd.

25. The Tribunal noted that it indicated to the first applicant at the hearing that it had already delayed the review for some months pending the Department’s decision about the second nomination application lodged by Jordano Commercial Services Pty Ltd. The Tribunal noted that it further indicated to the applicants that it was reluctant to further delay the review but would give the request consideration.

26. On 25 November 2016, the Tribunal made its decision to affirm the decision under review not to grant the applicants a Temporary Business Entry visas. 

27. The Tribunal acknowledged that Jordano Commercial Services Pty Ltd had lodged an application for review of the Department’s decision to refuse the second nomination application. Although the applicants hoped the outcome of that review would be positive, the Tribunal found that to be speculative as the outcome of that review is unknown.

28. Further, the Tribunal noted that the review application by Jordano Commercial Services Pty Ltd had only been lodged very recently and found that a considerable period of time had passed since the first nomination had been refused. The Tribunal noted that the refusal of the first nomination application had been affirmed by the Administrative Appeals Tribunal nearly 18 months ago and the second nomination application by Jordano Commercial Services Pty Ltd was not lodged until 12 months after that decision. 

29. The Tribunal proceeded to make its decision on the review by taking into account all the evidence and circumstances. The Tribunal found there was no evidence before it at the time of its decision that there was a current approved nomination of an occupation in relation to the first applicant as required by s.140GB of the Migration Act 1958 (Cth). Accordingly, the Tribunal found that the first applicant did not satisfy cl.475.223(4)(a)(i) of Schedule 2 to the Regulations.

30. The Tribunal further found that there was no evidence before it that the first applicant would be able to satisfy any of the other criteria for other streams of the visa.

31. The Tribunal’s findings would appear to be open to it on the evidence and material before it and for the reasons it gave.

32. It was the first applicant’s submission to the Court today that the delay by the Administrative Appeals Tribunal to review the decision of a delegate of the first respondent dated 19 September 2016, refusing the nomination application of Jordano Commercial Services Pty Ltd, was not his fault. The first applicant contended that in the circumstances, the Tribunal should have exercised its discretion to delay making a decision on his review application until that review had been undertaken and determined by the Administrative Appeals Tribunal. 

33. Whilst I accept the first applicant’s submission that the delay is not his fault, it was not the only reason that the Tribunal exercised its discretion as it did. 

34. Of particular relevance to the Tribunal was that it had already delayed making its decision for more than five months for the Department to determine the second nomination application of Jordano Commercial Services Pty Ltd. The Tribunal acknowledged that Jordano Commercial Services Pty Ltd had applied for review of that decision by the Administrative Appeals Tribunal, but found that any outcome on that review application to be speculative. The Tribunal also had regard to the refusal of the first nomination application affirmed by the Administrative Appeals Tribunal nearly 18 months ago and noted that the second nomination application was not lodged until 12 months after that decision.

35. The only issue before this Court is whether the decision of the Tribunal to exercise its discretion to refuse to delay its decision was open to it on the evidence and material before it (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 348-349).

36. It is well established that the Tribunal has power and discretion to determine whether to adjourn proceedings before it. However, the Tribunal’s exercise of power must be reasonable in all the circumstances. In the circumstances of this case, the Tribunal’s refusal to delay the proceedings before it any longer was open to it on the evidence and material before it and for the reasons it gave.

37. The Tribunal’s approach does not reveal any unreasonableness or can be said to lack an evident and intelligible justification of the kind referred to in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [47] and [76].

38. Further, the Tribunal was not under an obligation to afford every opportunity to the applicant to present his best possibility case and to improve the evidence. It is well established that there is a significant public interest in the finality of administrative decisions (see: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491). It would appear to me that the exercise of the Tribunal’s discretion is without error.

39. Accordingly, the ground of the initiation application does not appear to raise an arguable case for the relief claimed.

40. While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The Tribunal referred to the relevant law in affirming the decision under review and its findings would appear to have been open to it on the evidence and material before it and for the reasons it gave. 

41. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 19 December 2016, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  8 June 2017