Islam v Minister for Immigration

[2015] FCCA 2730

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISLAM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2730

Catchwords:
MIGRATION – Review of decision of former Migration Review Tribunal – refusal of a temporary business visa – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.359A, 424A
Migration Regulations 1994 (Cth)

Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
SZBYR v Minister for Immigration (2007) 235 ALR 609

Applicant: MD NAZRUL ISLAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2491 of 2014

Judgment of: Judge Driver

Hearing date: 7 October 2015

Delivered at: Sydney

Delivered on: 7 October 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr L Dennis of Sparke Helmore

ORDERS

1. The name of the second respondent is amended to the Administrative Appeals Tribunal.

2. The application filed on 5 September 2014 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2491 of 2014

MD NAZRUL ISLAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the, the former Migration Review Tribunal, (now the Administrative Appeals Tribunal) (Tribunal).  The decision was made on 8 August 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Islam, a temporary business entry (Class UC) visa.

2. Background facts relating to Mr Islam's visa application and the decision of the Tribunal on it are set out in the Minister's outline of legal submissions filed on 30 September 2015.  Mr Islam, a citizen of Bangladesh, applied for a temporary business entry (Class UC) visa on 11 February 2014[1]. On 31 March 2014, a delegate of the Minister refused to grant the visa on the basis that the Mr Islam did not meet clause 3004 of schedule 3 to the Migration Regulations 1994 (Cth) (Regulations) and, as a result, failed to satisfy clause 457.221A of schedule 2 to the Regulations[2]. On 8 August 2014, after a hearing which occurred on 29 July 2014[3], the Tribunal affirmed the delegate’s decision[4].

   [1] Court Book (CB) 1.

   [2] CB 56.

   [3] CB 89.

   [4] CB 97.

Tribunal decision

1. The Tribunal identified that the relevant issue was whether Mr Islam satisfied clause 457.221A of Schedule 2 to the Regulations[5]. Clause 457.221A provided:

   If the applicant was outside Australia at the time of making their application, but inside Australia at the time of the decision on the application:

   (a)the applicant holds a substantive visa, other than a Subclass 771 (Transit) visa or a special purpose visa; or

   (b) if the applicant does not hold a substantive visa at the time of the decision on the application:

   (i)the last substantive visa held by the applicant was not a Subclass 771 (Transit) visa or a special purpose visa; and

   (ii)the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.

   [5] Tribunal decision at [6].

2. The Tribunal found that clause 457.221A applied to Mr Islam such that he needed to satisfy clauses 3003, 3004 and 3005 in Schedule 3 to the Regulations[6].

   [6] Tribunal decision at [8].

3. The requirements of clause 3004, all of which must be satisfied, were summarised by the Tribunal[7]. However, the Tribunal identified that the relevant issue in this matter was whether Mr Islam satisfied clause 3004(f)[8]. Relevantly, clause 3004(f)(i) required that where an applicant was not the holder of a substantive visa, Mr Islam must have been entitled to have been granted the visa applied for on the day when Mr Islam last held a substantive visa. That means Mr Islam needed to have been able to satisfy the criteria for the grant of a subclass 457 visa on 11 October 2009, that being the date his subclass 572 visa ceased.

   [7] Tribunal decision at [10].

   [8] CB 98 at [11].

4. The Tribunal acknowledged written submissions provided by Mr Islam. It also noted Mr Islam’s own evidence that he did not have a sponsor when he last held his student visa[9]. The Tribunal provided an opportunity for Mr Islam to provide further submissions on the issue under review. On 5 August 2014, Mr Islam provided submissions attaching a reference letter from a previous employer and claimed that this evidence demonstrated Mr Islam would have been entitled to be granted a subclass 457 visa on 11 October 2009[10].

   [9] CB 98 at [12]-[13]; The effect of item 1223A(3)(d) is that where an applicant seeking to satisfy the primary criteria for the grant of a subclass 457 visa on the basis of sponsorship, the application must be accompanied by evidence that the person who has nominated, or proposes to nominate, the occupation meets the specified requirements relating to standard business sponsors (see Item 1223A(3)(d)(ii)(B)-(D)).

   [10] CB 98 at [13]-[15].

5. The Tribunal was not satisfied that Mr Islam had a sponsor or was otherwise entitled to the grant of a subclass 457 visa on the relevant date. Consequently, Mr Islam failed to satisfy clause 3004(f) of schedule 3, and clause 457.221A of schedule 2 to the Regulations[11]. On 8 August 2014, the Tribunal affirmed the delegate’s decision[12].

   [11] CB 98 at [16].

   [12] CB 97.

The present proceedings

1. These proceedings began with a judicial review application filed on 5 September 2014.  At that time Mr Islam was represented by solicitors, but they have, in recent months, ceased to act for him.  Mr Islam continues to rely upon that application.  The application contains two grounds:

   1. The second respondent (the tribunal) erred in failure to make a finding that the applicant had met cl.3004(f)(i), accordingly had cl3004 and cl.457.221A.

   Particulars

   The second respondent had failed to give proper consideration to the reference from Edward Bazzano, the General Manager of Caminetto Ristorante Intalian & Pizzeria, a former employer of the applicant, which was dated on 1 August 2014.

   2.The second respondent failed to follow the procedures set out in Section 424A, Migration Act 1958.

   Particulars

   (a) On 13 June 2014 the applicant gave a statement to the tribunal, and the statement included the information that “He could not find an employer who was willing to sponsor him for a subclass 457 visa while his student visa was still valid, and when he eventually had an employer who was willing to sponsor him his student visa had expired.”

   (b) The Tribunal held a hearing on this matter on 29 Jul 2014, raising the issue of whether the applicant could meet cl.3004(f)(i).

   (c) On 5 August 2014 the applicant gave to the tribunal a reference from Edward Bazzano, the General Manager of Caminetto Ristorante Italian & Pizzeria.

   (d) The reference appeared to be inconsistent with the statement given on 13 June 2014, and the tribunal appeared to affirm the department’s decision based on the information.

   (e)Section 424(1) provides:

   (1) Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, or affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it.

   (f) No evidence has indicated that the tribunal has invited the applicant to comment on or respond to it.

   (g) The applicant believed that such inconsistencies could be explained away if he had been given the opportunity to comment on it.

2. The application was supported by a short affidavit filed with it, which I received into evidence.  I also have before me as evidence, the court book filed on 31 October 2014.  I note in passing that the court book was deficient in that an incomplete copy of the Tribunal’s decision was included in it, but a complete copy of the Tribunal decision is before me as an annexure to Mr Islam’s affidavit.

3. Mr Islam appeared in person today and made oral submissions.  He impressed me as a genuine person who has been diligently trying over the past seven years, since he arrived in Australia, to better himself through education and employment.  He has worked extensively in the hospitality field and, on his account, has achieved significant progress.  He was however, unable to satisfy the requirements for the class of visa he sought because of the technical criteria applying to that class of visa.

4. Mr Islam explained in his oral submissions that he acted on the best advice he could find at the time, to meet the criteria for the visa sought.  He thought that he had done so and that he had been hampered by a lack of communication from either the Minister’s Department or the Tribunal.  Leaving aside legal considerations, it does appear to me that Mr Islam presents himself as a potential asset to the Australian community, which is something that the Minister could consider if he were so minded.

5. On the legal issues I can find no fault with the Tribunal decision.

6. The first ground of review advanced by Mr Islam contends that the Tribunal “failed to give proper consideration” to the reference from his previous employer. On the contrary the Tribunal plainly did consider the reference but found that it did not provide evidence that the relevant sponsorship requirements were satisfied at the relevant date[13]. This finding was open to the Tribunal on the evidence before it. In substance, this ground seeks impermissible merits review[14].

   [13] See Item 1223A(3)(d) of Schedule 1 to the Regulations,  CB 98 at [14]-[15].

   [14] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272.

7. The second ground contends that the Tribunal “failed to follow the procedures” in s.424A of the Migration Act 1958 (Cth) (Migration Act). I assume Mr Islam means the equivalent provision in the context of Division 5 of Part 5 of the Migration Act[15].

   [15] See s.359A.

8. The particulars of this ground refer to Mr Islam’s own evidence and information he provided for the purposes of the review. There is no requirement for the Tribunal to put such information to Mr Islam[16]. Further, for the purposes of s.359A(1) of the Migration Act, “information” does not include the existence of doubts and inconsistencies or the Tribunal’s preliminary conclusions in weighing up the evidence by reference to those gaps[17].

   [16] See s.359A(4)(b) of the Migration Act.

   [17] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].

9. I conclude that Mr Islam is unable to demonstrate that the Tribunal decision was affected by any jurisdictional error.  It follows that the Tribunal decision was a privative clause decision and the application must be dismissed.

10. I will order that application be dismissed.

11. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $5800, which is below the Court scale.  I have no difficulty in accepting that costs of at least that amount have been reasonably and properly incurred on behalf of the Minister. 

12. Mr Islam indicated that he might wish to pay by instalments.  That is a matter for him to raise with the Minister's department or the Minister's lawyers.  I will not impose any time for payment of costs.

13. I will order the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 9 October 2015