ISLAM v Minister for Immigration

[2020] FCCA 1999

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISLAM & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1999

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) visa – Whether the Tribunal failed to exercise jurisdiction by failing to consider all aspects of the applicants’ claims – Whether jurisdictional error is made out – No jurisdictional error is made out – The application is dismissed.

Legislation:

Migration Act 1958 (Cth), s.359A

Migration Regulations 1994 (Cth), sch 2, cl 187.223(3)

Cases cited:

Khan v Minister for Immigration and Border Protection [2019] FCCA 701

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

First Applicant: TANJILUN ISLAM

Second Applicant: KAZI SHAHADAT HOSSAIN

Third Applicant: SALWA KHONDOKER SUBHA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1957 of 2019

Judgment of: Judge Humphreys

Hearing date: 22 July 2020

Date of Last Submission: 22 July 2020

Delivered at: Parramatta

Delivered on: 22 July 2020

REPRESENTATION

Applicants': In person

Solicitors for the Respondents: Ms Allen, Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

2. The First and Second Applicants’ jointly and severely pay the First Respondent’s costs fixed in the amount of $4500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1957 of 2019

TANJILUN ISLAM

First Applicant

KAZI SHAHADAT HOSSAIN

Second Applicant

SALWA KHONDOKER SUBHA

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(As revised from transcript)

Introduction

1. The applicants’ are citizens of Bangladesh. The applicants’ consist of the first applicant (the primary applicant) as female head of household, the second applicant as her partner and the third applicant as their child.

2. On 22 February 2018, the first applicant applied for Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visas to work as an accountant. The first applicant’s application indicated that she was sponsored by Vision Smart Pty Ltd. The second and third applicants’ rely upon the first applicant being granted a visa, and make no separate claims.

3. On 5 April 2019, a delegate of the Minister for Immigration (“the delegate”), refused to grant the applicants’ their visas on the basis that on 11 December 2018, the nomination by Smart Vision Pty Ltd was refused by the delegate. As a result, the first applicant could not satisfy cl 187.223(3) of sch 2 to the Migration Regulations1994 (Cth) (“the Regulations”) that she had an approved nomination, nor was there a nomination refusal pending review.

4. The applicants’ sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 8 July 2019, the Tribunal affirmed the delegate’s decision to refuse the applicants’ their visas. The applicants’ now seek judicial review of the Tribunal decision

The Administrative Appeals Tribunal Decision

1. At paragraph 7 of its decision, the Tribunal noted that on 14 June 2019, that the Tribunal wrote to the first applicant pursuant to s 359A of the Migration Act 1958 (Cth) (“the Act”) informing her that her sponsor did not have an approved nomination and that they had not lodged an application for review with the Tribunal when the nomination relating to her Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa had been refused.

2. The applicants’ appeared before the Tribunal on 8 July 2019. At paragraph 16 of its decision, the Tribunal noted that it appeared that when lodging the Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa application in early 2018, the applicants’ unknowingly used someone who was not a registered Migration Agent and has subsequently disappeared. The nomination application by the sponsor, relating to the Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa application, was refused on 11 December 2018.

3. At paragraphs 17 and 18 of its decision, the Tribunal was satisfied that the applicants’ were the victims of fraud on the part of an unregistered Migration Agent. The first applicant provided documents including a contract of employment with the sponsor and texts relating to payment requests for the visa application. This included receipts totalling $30,000 made to Sydney Migration and Consultants Pty Ltd trading as Australia Work Permit.

4. The first applicant gave evidence that she had been working as an accountant with a firm who had provided a written reference for her stating that they wish to contract and sponsor her for two years. The first applicant requested that the Tribunal give her more time so she can find a new sponsor with a view to being nominated for a (Subclass 482) visa. The first applicant was told that cl 187.233(3) of the Regulations, was a mandatory requirement and that the Tribunal had no discretion to waive it. The first applicant did not, and could not on the evidence, meet that requirement because she was not the subject of an approved nomination.

5. Each of the other applicants’, as secondary applicants’ were required to be members of the family unit of a person who holds a (Subclass 187) visa. As the first applicant did not hold such a visa, their applications’ could also not be granted.

Grounds of Judicial Review

1. A single ground of application was relied upon as follows:

   Ground One:

   The Tribunal failed to exercise jurisdiction by failing to consider all aspects of my claims.

The Applicants’ Submissions

1. The applicants’ appeared before the Court unrepresented. The applicants’ were assisted by an Interpreter. Despite Court orders, no written submissions were filed in support of the application.

2. At the commencement of the hearing, the Court ensured that the applicants’ were in possession of copies of the Court books, and that the first respondent’s submissions had been interpreted to them. The applicants’ were also provided with a pen and paper to take notes if they so wished.

3. The applicants’ were advised that if the Court gave an oral decision, that a copy of written reasons could be requested from the Court registry.

4. After explaining the Court processes to the applicants’, and the differences between judicial and merits review, the first applicant gave the Court a personal statement requesting more time as well as a confirmation of enrolment at the University of Wollongong in a Masters of Professional Accounting. The first applicant did not wish to otherwise address the Court.

5. After the first respondent’s oral submissions, the applicants’ were again asked if they wished to address the Court, and they declined.

The First Respondent’s Submissions

1. The legal representative for the first respondent noted, that the applicants’ had not provided any particulars as to any claim which the Tribunal had failed to consider. It was submitted, that without particulars, the ground was incapable of disclosing jurisdictional error and that on that basis alone it should be dismissed: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmore J.

2. It was submitted, that in any event, the Tribunal identified the correct issue which was whether or not the first applicant was the subject of approved nomination as required by sub-cl 187.223(2) of the Regulations. As this was a mandatory requirement that the Tribunal had no discretion to waive, it had no choice but to affirm the decision under review.

3. It was submitted that further, in the alternative, if the Tribunal did find jurisdictional error (which is not admitted), given that the applicant could never satisfy cl 187.223 of the Regulations, the first respondent requests that the Court refuse relief, on the basis it would be futile to remit the matter to the Tribunal ; see Khan v Minister for Immigration and Border Protection [2019] FCCA 701 at [66] per Kendall J

Consideration

1. This is an unfortunate matter where it appears, on the evidence before the Court, that the first applicant has been the victim of a considerable fraud by an unregistered Migration Agent. Evidence of this sort of fraud comes before the Court on a not infrequent basis. It is an area of criminal activity that does not appear to attract much attention from law enforcement authorities. It appears to be highly profitable. The victims are not Australian citizens. They are ill equipped to identify the risks involved, and are reliant upon those they seek out to provide them with professional assistance.

2. It is white-collar crime, however it is still criminal activity. It is an area that should be given priority by law enforcement agencies given the pervasive negative impact it has, on those seeking to navigate the Australian migration system.

3. In terms of the application before the Court, no particulars have been provided by the first applicant as to what aspect of her claims have been overlooked by the Tribunal. The requirement to have an approved sponsor in order to be granted a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa is mandatory. This was explained to the applicants’ by the Tribunal. It is not a matter that is discretionary, and on the evidence before the Tribunal, the requirement was simply not met. The Tribunal had no option other than to affirm the decision under review

4. No jurisdictional error is apparent on the face of the Tribunal decision either as articulated by the applicants, or otherwise.

5. In these circumstances, the Court has no discretion, like the Tribunal, other than to dismiss the application.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 24 July 2020