Hossain v Minister for Immigration

[2016] FCCA 2885

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOSSAIN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2885

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Temporary Business Entry (Class UC) (Subclass 457) visa – whether the Tribunal exceeded its jurisdiction – whether the Tribunal denied the applicant procedural fairness – whether the applicant was denied natural justice – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.140GB, 476.

Migration Regulations 1994, sch.2, reg.457.223.

Applicant: MD MONIR HOSSAIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1756 of 2016

Judgment of: Judge Street

Hearing date: 8 November 2016

Date of Last Submission: 8 November 2016

Delivered at: Sydney

Delivered on: 8 November 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr T Hillyard
Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1756 of 2016

MD MONIR HOSSAIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 June 2016, affirming the decision of the delegate not to grant the applicant a Temporary Business Entry (Class UC) visa.

2. The applicant is a citizen of Bangladesh. On 26 June 2013, the applicant applied for a Temporary Business Entry (Class UC) (Subclass 457) visa.

The Delegate’s Decision

1. In the application lodged by the applicant, the applicant identified a prospective sponsor, Chameli Khatoon, trading as Bismillah Groceries. On 12 September 2013, the applicant’s then representative sent certain documents to the Department by email, including a letter of reference from the sponsor, noting the applicant had been employed there since 10 May 2012. Relevantly, the letter did not refer to a nomination application for the applicant.

2. On 31 October 2013, the applicant was sent a letter by the Department that was an invitation to comment. The letter identified that one of the criteria for the grant of a Temporary Work (Skilled) (subclass) 457 visa is an approved nomination. The letter noted that:-

   “Your prospective employer, CHAMELI KHATOON, does not have an approved nomination for you at this time. As a result, your visa application is unlikely to be successful.”

3. The applicant was given 28 days to respond to the invitation to comment. On the material before the Court, no step was taken by the applicant to obtain an approved nomination. On 20 January 2014, the delegate identified the relevant criteria under reg.457.223(4) of sched.2 of the Migration Regulations 1994. The delegate found, from the information available, that the criteria for the grant of a Temporary Work (Skilled) visa are not met. The delegate identified that a visa cannot be granted unless the applicant meets the relevant legal criteria and legal requirements that are specified in the Act or regulations.

4. The delegate made reference to reg.457.223(4)(a) not having been met by the applicant on the date the decision was made, being 20 January 2014. The delegate noted that on 17 January 2014, the decision was taken to refuse the nomination application by the primary applicant’s respective employer, Chameli Khatoon. The delegate noted that as the primary applicant’s business activity is not the subject of an approved business nomination, the delegate was not satisfied that reg.457.223(4)(a) had been met.

5. Accordingly, the delegate found that the criteria for the grant of the Temporary Business Entry visa were not met and refused to grant the applicant a Temporary Business Entry visa.

The First Tribunal Decision

1. On 29 January 2014, the applicant applied for review. An earlier and differently constituted Tribunal wrote to the applicant on 9 March 2015, inviting the applicant to comment on whether he had a valid application and pointing out that the applicant had no approved nomination.

2. On 7 April 2015, the earlier and differently constituted Tribunal held that it did not have jurisdiction in the matter.

3. On 28 January 2016, by consent, the earlier Tribunal’s decision was set aside. The first respondent had noted in the consent orders a concession that the second respondent committed jurisdictional error in finding that it did not have jurisdiction to consider the applicant’s application for review. The note recorded that that concession is made on the basis the visa applicant made an application for review of the visa refusal to the second respondent, and by the time the timeframe and lodgement of the application expired, a review of sponsorship decision, not to approve a nomination under s.140GB(1) of the Act, identifying the applicant, was pending. Accordingly, the requirements of subsection 338(2)(d)(ii) of the Act were satisfied.

The Second Tribunal Decision

1. On 10 February 2016, the applicant was sent a letter by the currently constituted Tribunal, identifying that it would reconsider the applicant’s application for review of the decision refusing to grant the applicant a Temporary Business Entry (Class UC) visa.

2. On 6 May 2016, the Tribunal wrote to the applicant and invited the applicant to attend a hearing on 9 June 2016. Relevantly, the letter dated 6 May 2016 noted that the currently constituted Tribunal had considered the matter, but was unable to make a favourable decision on the information alone. The applicant attended the hearing to give evidence and present arguments.

3. In the Tribunal’s reasons, the Tribunal noted the requirements in cl.457.223(4)(a) that there was an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. The Tribunal noted that the sponsor’s nomination application, of which the applicant was the subject, was refused on 17 January 2014. The Tribunal noted that the applicant confirmed that he had no evidence that he was the subject of an approved nomination of an occupation that had not ceased. The Tribunal explained to the applicant in those circumstances he does not meet cl.457.223(4)(a).

4. The Tribunal noted that the applicant provided a PTE academic test that he had undertaken in June of 2015, which the Tribunal took the trouble of explaining to the applicant was not relevant to the issue of whether he is the subject of an approved nomination. The Tribunal found it was not satisfied there is evidence that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

5. Accordingly, the Tribunal found the applicant did not meet the requirements of cl.457.223(4)(a). The Tribunal found that the requirements for the standard business sponsor stream have not been met and that there are no claims that have been made in respect of any other streams in cl.457.223 and affirmed the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Proceedings before this Court

1. On 8 September 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.

2. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair. The Court explained that if satisfied the Tribunal’s decision was affected by relevant legal error, the Court would send the matter back for further hearing before the Tribunal. The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error, the application would be dismissed.

3. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table, the applicant identified that he wanted a second chance. The applicant proffered no proper explanation for why he had failed to take proper steps to obtain an approved nomination since he was on notice of that fact since 31 October 2013.

5. The grounds of the application are as follows:-

   1. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration of my written statement and other evidences regarding my nomination application. It is an error of law.

   2. The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed to varify my claims and documents and evidences that I submitted during the application process and failed to enable me to have an opportunity to submit my explanations. If I would be given the opportunity it could have led to a different decision by the Tribunal. It is an error of law

   3. The Tribunal denied the natural justice in determining my review application that the Tribunal biased, or in the alternative, there was an apprehension of bias in the making of the purported decision such it vitiated the said purported decision. It is an error of law

   4. The Tribunal failed to consider my mental stress issued which is supported by a registered psychologist at the time of oral evidence and ignored with bias. It is an error of jurisdiction.

   (Errors in original)

6. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. There is nothing in the material before the Court to establish that the Tribunal failed to comply with the requirements of procedural fairness in the conduct of the review.

7. In relation to ground 1, the assertion of an excess or failure to exercise jurisdiction does not make out any jurisdictional error by the mere assertion. There is nothing identified in support of ground 1 to make out any jurisdictional error.

8. It is apparent that the Tribunal identified the evidence that was produced by the applicant and explained to the applicant why it was not relevant. The proposition that the Tribunal failed to have regard to the material before it is without substance. Ground 1 fails to make out any jurisdictional error.

9. In relation to ground 2, again the bare assertion of error by the Tribunal does not make out an error. The assertion that the applicant was denied an opportunity to submit explanations is utterly without substance. It is apparent that the applicant was invited to attend the hearing and on the material before the Court, the Court is satisfied that the applicant had a real and meaningful hearing.

10. The applicant had had the opportunity to obtain an approved nomination since 31 October 2013. It was not unreasonable for the Tribunal to proceed to make a decision following the hearing held on 9 June 2016. Further, there is nothing before the Court to establish any requests for a further opportunity by the applicant to the Tribunal to put on the further material. The Tribunal’s decision to proceed to determine the matter on the material before it cannot be said to lack an evident and intelligible justification. Ground 2 fails to make out any jurisdictional error.

11. In relation to ground 3, the bare assertion of a denial of natural justice does not identify any relevant legal error. There is nothing in the material before the Court to establish any denial of procedural fairness in the conduct of the review. An assertion of bias must be clearly alleged and properly proved. No allegation of bias is made out. To the extent that the allegation of bias refers to the decision, the adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend the Tribunal might not bring an independent, fair and impartial mind to the determination of the matter on its merits. Ground 3 fails to make out any jurisdictional error.

12. In relation to ground 4, there was nothing before the Tribunal to identify that the applicant was the subject of any mental stress. There is no report by a registered psychologist that was provided to the Tribunal and the Tribunal cannot be in error by failing to take into account material that was not put before it. Nor would the applicant’s claim of mental stress explain the failure by the applicant to have taken steps to obtain an approved nomination over what is now almost a three-year period since the applicant was first aware of the need for an approved nomination. The applicant’s explanation from the bar table, although not relevant to determining the issue of legal error, was that his employer had been sick for almost two years. That explanation is fanciful. In any event the explanation does not identify any relevant legal error. Ground 4 fails to make out any jurisdictional error.

13. Nothing has been said by the applicant identifying any jurisdictional error.

14. The application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 9 December 2016