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

The application is dismissed.
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

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.
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.
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.
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

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…

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

Case: [2020] FCCA 1999
Decision Date: 22 July 2020

CaseChat Overview and Summary

The applicant, Mr. Islam, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning his application for a Regional Employer Nomination (Permanent) (Class RN) visa. The dispute centred on whether the AAT had failed to exercise its jurisdiction by not considering all aspects of the applicants' claims.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the AAT had committed a jurisdictional error by failing to consider all relevant aspects of Mr. Islam's visa application. This required the court to determine if the Tribunal had adequately addressed the grounds upon which the visa was sought and the evidence presented in support of those grounds.

Judge Humphreys found that the AAT had not made a jurisdictional error. The reasoning was that the Tribunal had considered the material before it and had made findings of fact and law based on that material. The court concluded that the AAT had exercised its jurisdiction, and therefore, the application for judicial review was dismissed.

Orders