Hossain v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1933

FEDERAL CIRCUIT COURT OF AUSTRALIA

Hossain v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1933

File number(s):

SYG 2799 of 2017

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

20 August 2021

Catchwords:

MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a 457 visa – whether Tribunal erred in finding the applicant did not satisfy the requirement that there be a nomination of occupation in relation to the applicant – no error – application dismissed

Legislation:

Migration Act 1958 (Cth), ss 5, 140E, 140G, 140GB(1), 140M, 359A, 476

Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)

Migration Regulations 1994 (Cth), regs 1.03, 2.72, Sch 2, cl 457.223

Cases cited:

Berenguel s Minister for Immigration and Citizenship [2010] HCA 8

Number of paragraphs:

24

Date of hearing:

11 August 2021

Place:

Sydney

The First Applicant:

In person and on behalf of the second applicant and as litigation guardian for the third applicant, by telephone

Solicitor for the First Respondent:

Ms J Strugnell of Minter Ellison, by telephone

ORDERS

SYG 2799 of 2017

BETWEEN:

MD ALAMGIR HOSSAIN

First Applicant

SUKURZAN

Second Applicant

MOHAMMAD SALMAN HOSSAIN

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	20 AUGUST 2021

THE COURT ORDERS THAT:

1.The first respondent’s name be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”, and the first respondent's name on this page shall be “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The application is dismissed.

3.The first and second applicants pay the first respondent’s costs set in the amount of $5,600

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicants apply for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Temporary Business Entry (Class UC) Temporary work (skilled) (subclass 457) visa (457 visa).

   BACKGROUND

2. On 2 July 2015 the applicants applied for a 457 visa. The first applicant (applicant) was the primary applicant, and the second and third applicants applied as members of the applicant’s family unit. At the time they applied for the 457 visa the applicants held a 457 visa that was due to expire on 5 July 2015.

3. To have been entitled to the grant of a 457 visa the applicant had to meet the requirements of one of two alternative streams identified in cl 457.223 of Schedule 2 (Schedule) to the Migration Regulations 1994 (Cth) (Regulations). Relevant is the “standard business sponsor” stream in cl 457.223(4), which provided as follows:[1]

   The applicant meets the requirements of this subclause if:

   (a)       each of the following applies:

   (i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

   (ii)the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

   (iii)the approval of the nomination has not ceased as provided for in regulation 2.75 . . .

   [1] Class 457 of Schedule 2 was repealed with effect from 18 March 2018 by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (clause 2(1) and Schedule 1, Part 1, item 167), but, under the transitional item provision in item 6702 of Schedule 13 to the Regulations, the repeal takes effect only in relation to visa applications made on or after that date.

4. Subsection 140GB(1) of the Act provides that an “approved sponsor” may nominate an applicant or proposed applicant for a visa of a prescribed kind in relation to, among other things, the applicant’s, or proposed applicant’s, proposed occupation. The expression “approved sponsor” is defined in s 5 of the Act as a person who has been approved by the Minister under s 140E of the Act in relation to a class prescribed by the Regulations for the purposes of s 140E(2) of the Act, and whose approval has not been cancelled under s 140M of the Act or has otherwise ceased to have effect under s 140G of the Act. “Standard business sponsor” is defined in reg 1.03 of the Regulations to mean an “approved sponsor” who has been approved “in relation to the standard business sponsor class by the Minister under subsection 140E(1) of the Act”. Subsection 140E(1) of the Act provides that the Minister must approve a person as a sponsor in relation to one or more classes prescribed for the purpose of s 140E(2) if prescribed criteria are satisfied.

5. In his form of application the applicant identified his current employer (Orbit) as his “sponsoring employer”. By letter dated 21 July 2015 the Department of Immigration and Border Protection (Department) informed the applicant that the sponsorship agreement relating to the applicant had been cancelled, and a “3 year band has been imposed on 20/7/2015”.[2] On 24 July 2015 Orbit applied to the Tribunal for a review of the cancellation and three year bar. On 13 August 2015 a delegate of the Minister refused the nomination application Orbit lodged in relation to the applicant.[3] By letter dated 13 August 2015 the Department informed the applicant that Orbit, being the applicant’s “prospective employer”, did not have an approved nomination for the applicant. In those circumstances, on 22 September 2015 the delegate refused to grant the applicants a 457 visa because the applicant was not the subject of an approved nomination.

   [2] CB33

   [3] CB55.9

6. It appears that after the delegate decided not to grant a 457 visa to the applicant Orbit applied to the Tribunal for a review of the decision not to approve a nomination in relation to the applicant, but Orbit withdrew its application for review.[4]

   [4] CB96

   BEFORE THE TRIBUNAL

7. By letter dated 7 April 2017 the Tribunal informed the applicants that the applicant’s nominating employer, Orbit, withdrew its application for review of the delegate’s decision not to approve the nomination in relation to the applicant.[5] The letter noted that, subject to the applicant’s comments or response, the information would be the reason, or part of the reason, for affirming the delegate’s decision not to grant the applicants a 457 visa. The language suggests, and I find, that the Tribunal sent the letter pursuant to s 359A of the Act. The Tribunal stated the information was relevant because cl 457.223(4) of the Schedule required the applicant to be the subject of a current approved nomination by an approved business sponsor, and if the Tribunal relied on the information it might find the applicant does not satisfy cl 457.223(4)(a) of the Schedule.

   [5] CB96

8. On 11 April 2017 the representative of Barakah Housing Pty Ltd (Barakah) sent an email to the Tribunal stating that the applicant “has been identified as the nominee in this enclosed nomination application”.[6] That is a reference to a nomination application made by Barakah which is the subject of a letter dated 27 January 2017 from the Department attached to Barakah’s representative’s email of 11 April 2017.[7] The representative stated that when “we receive the outcome of nomination application, we will advise the tribunal”.

   [6] CB98

   [7] CB99

9. The applicant and the second applicant appeared before the Tribunal on 15 May 2017 to give evidence and present arguments. The applicant provided evidence of his immigration and employment history, and he requested the Tribunal not decide the matter until the outcome of Barakah’s nomination application was determined. At the Tribunal’s request, the applicant said he would provide an update on the progress of Barakah’s nomination application.[8]

   [8] CB136, [15]`

10. On 30 June 2017 a delegate of the Minister refused Barakah’s nomination application. The Tribunal became aware of that fact on 31 July 2017. On that day the Tribunal sent a letter to the applicants notifying them that Barakah’s nomination in relation to the applicant had been refused, and, subject to any comments the applicants wished to make, the information, if accepted, would be the reason or part of the reason, for affirming the delegate’s decision not to grant the 457 visa. The language in the letter reflects, and I find, that the Tribunal sent the letter pursuant to s 359A of the Act.

11. The applicants responded by Barakah’s representative’s letter dated 13 August 2021. The representatives requested the Tribunal not make a decision in relation to the 457 visa application until “the review of the nomination is complete”.[9] For reasons given in its decision, the Tribunal did not agree to postpone its decision until the determination of Barakah’s application for review.

    [9] CB124

    TRIBUNAL’S REASONS

12. The Tribunal recited the history of the applicants’ application for a 457 visa, including the nomination applications made by Orbit and then by Barakah. The Tribunal in particular noted the request made by Barakah’s representatives that the Tribunal postpone its decision until the determination of Barakah’s application for review in relation to a delegate’s refusal to approve a nomination application in respect of the applicant. The Tribunal said it decided not to grant the delay Barakah had requested. The Tribunal said it is required to conduct reviews in a fair and efficient matter; the applicant had been on notice since 13 August 2015 that Orbit’s nomination in relation to the applicant had been refused and, therefore, two years had passed without the applicant being subject to a current approved nomination; the Tribunal had provided the applicant with a further opportunity to obtain an approval nomination after Orbit withdrew its application for review, but that nomination was also refused; the applicants did not identify by when Barakah’s application for review would be determined; and, for all these reasons, the Tribunal was satisfied the applicant had been given a sufficient opportunity to obtain an approved nomination in relation to him.

13. Having decided not to grant the applicant any further time, the Tribunal affirmed the delegate’s decision because there was no approved nomination in relation to the applicant, as required by cl 457.223(4)(a) of the Schedule and, for that reason, the applicant was unable to meet that requirement.

    BEFORE THE COURT

14. At the hearing before me the applicant, who appeared for himself and on behalf of the second applicant, and as litigation guardian for the third applicant, applied for an adjournment of the hearing. He said he wanted to obtain legal advice; he was subject to lockdown and could not go out; he had his first vaccination in relation to COVID 19 and was due to have his second vaccination more than 28 days from now; COVID 19 is serious in Bangladesh, being the applicants’ country of citizenship; and the third applicant is attending school. I dismissed the application for an adjournment, noting that I would include my reasons for so doing in reasons I would publish later.

15. I did, however, at the hearing state in summary form why I refused to adjourn the hearing. The applicants commenced this proceeding on 8 September 2017, almost four years ago, which means the applicants have had a reasonable opportunity to obtain legal advice. Given the first applicant informed me he is not employed, there was a negligible prospect that he would be able to afford a lawyer; but even if he were able to afford a lawyer, there is nothing to suggest that could improve the applicants’ prospects in this proceedings. Additionally, although I understood why the applicant wanted an adjournment, and was sympathetic to the applicants’ circumstances that induced him to apply for an adjournment, the jurisdiction of this Court is limited to dealing with applications to set aside on legal grounds the decisions of bodies such as the Tribunal. It is outside the purpose of the exercise of that jurisdiction to grant adjournments for reasons that have nothing to do with the merits of the claims made in the proceeding, or with the ability of a party to conduct his or her case.

16. The matters I identified to the applicant indicate there would have been no utility in my granting the adjournment the applicants sought; and, in any event, to have granted the adjournment would have involved me exercising the power to adjourn a hearing for purposes foreign to the proper exercise of that power.

17. After I refused the application for adjournment I informed the applicant of the purpose of the hearing, and the procedure that would be followed. I then invited the applicant to make submissions. The applicant submitted that he had entered Australia as the holder of a valid visa; but it was not his fault that his employer was unable to secure a nomination. I then directed the applicant to each of the grounds contained in the application. Understandably, the applicant said he was not able to say anything in relation to those grounds, other than to repeat, after I read out ground 2, that he was not at fault.

    GROUNDS OF APPLICATION

18. The application contains the following two grounds of application (errors in original):

    (1)The Tribunal decision was affected by erred of law, procedural fairness and jurisdictional error in relation to exercise its discretion to grant sub class 457 visa

    (2)The Tribunal made erred law in relation to consider subclass 457.223(4) and failed to consider migration Regulations and failed to consider Berenguel Vs Minister for Immigration and Citizenship [2010] HCA principles and discretions to grant sub class 457 visa.

19. None of these grounds discloses jurisdictional error. As to ground 1, the Tribunal informed the applicant that the nomination applications of Orbit and Barakah had been refused and, for that reason, the applicant could not satisfy cl 457.223(4)(a) of the Schedule, and the Tribunal gave the applicant an opportunity to make submissions. As to ground 2, the principles for which Berenguel v Minister for Immigration and Citizenship[10] stands as authority have no application to the circumstances of this case because the Tribunal considered whether the applicant satisfied cl 457.223(4) as at the time it made its decision.

    [10] Berenguel s Minister for Immigration and Citizenship [2010] HCA 8

20. The Minister, in his written submissions, also addressed the question whether the Tribunal’s decision not to grant the applicant further time was legally unreasonably. The Tribunal gave an evident and intelligible justification for deciding not to grant the applicants the further time Barakah’s representatives requested; and its decision was within the range of decisions that a reasonable decision maker in the position of the Tribunal could have made.

21. Finally, I note the Minister’s submission that even if the Tribunal were to have made any jurisdictional error, the application would be dismissed because there would be no utility in granting any remedy. The basis of that submission is that the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) repealed reg 2.72 of the Regulations and, with that, subclass 457 visas. It is not necessary for me to consider that submission, and I do not propose to consider it.

    DISPOSITION ANC COSTS

22. I propose to order that the application be dismissed.

23. The Minister applies for an order that the applicant and second applicant pay the Minister’s costs set in the amount of $5,600. The applicant submitted he does not have the means to meet such a costs order. I am satisfied that it is appropriate to make the usual order as to costs, even though the applicant may be unable to meet those costs, and that $5,600 represents a fair indemnity of the costs the Minister has incurred in this proceeding. I therefore propose to order that the applicant and the second applicant pay the Minister’s costs set in the amount of $5,600.

24. The Minister also seeks a name change, and I will so order.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate: 

Dated:       20 August 2021