Islam v Minister for Immigration

[2015] FCCA 617

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISLAM & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 617

Catchwords:
MIGRATION – Employer nomination visa – refusal – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal applied an incorrect test and erred in the exercise of its discretion whether to adjourn its review.

Legislation:

Migration Act 1958, s.474

Migration Regulations 1994, reg.5.19, cls.856.213, 856.221 of sch.2

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Border Protection v Singh (2014) 139 ALD 50
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

First Applicant: MOHAMMAD SIFUL ISLAM

Second Applicant: TANIA BINTE BASHAR

Third Applicant: ANEESA TANNAZ

Fourth Applicant: TAHSIN SADIT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2715 of 2013

Judgment of: Judge Cameron

Hearing date: 12 February 2015

Date of Last Submission: 12 February 2015

Delivered at: Sydney

Delivered on: 12 February 2015

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Mr L. Dennis of Sparke Helmore

ORDERS

1. The application be dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2715 of 2013

MOHAMMAD SIFUL ISLAM

First Applicant

TANIA BINTE BASHAR

Second Applicant

ANEESA TANNAZ

Third Applicant

TAHSIN SADIT

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant, who is a citizen of Bangladesh, arrived in Australia in 2001 as the holder of a student visa. After being granted a number of student visas, he applied for an Employer Nomination (Residence) (Class BW) subclass 856 visa on 2 December 2010. His wife and his daughter, the second and third applicants respectively, were also included in his application. On 14 August 2012 the application was refused by a delegate of the first respondent (“Minister”) on the basis that the first applicant did not meet cl.856.221(a) of sch.2 to the Migration Regulations 1994 (“Regulations”). On 20 August 2012 the first, second and third applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision. On 2 October 2012 the first and second applicants had a son and on 2 November 2012 the first applicant sought to add that son, the fourth applicant in this proceeding, to the application.

2. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

3. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. The Employer Nomination (Residence) (Class BW) visa was an onshore permanent visa for applicants who met the requirements for a position nominated by an employer who required skills possessed by the applicant in their business. 

2. The criteria for a subclass 856 visa were set out in pt.856 of sch.2 to the Regulations. Relevantly, at the time of application, the first applicant had to have been nominated by an employer, in accordance with reg.5.19(2) of the Regulations, for an appointment in the business of that employer: cl.856.213(a). Further, at the time of decision, the first applicant’s appointment must have satisfied cl.856.221 which provided:

   The appointment mentioned in paragraph 856.213(a):

   (a)     has been approved; and

   (b)     has not been withdrawn; and

   (c) continues to satisfy the criteria for approval; and

   (d)     is still available to the applicant.

3. The criteria for approval of an appointment for the purposes of a subclass 856 visa were found in reg.5.19(2) which at all material times relevantly provided:

   5.19 Approval of nominated positions (employer nomination)

   …

   (2) An employer nomination meets the requirements of this subregulation if:

   (a) the employer nomination is made by an employer in respect of a need for a paid employee (the employee) in a business:

   (i)     actively and lawfully operating in Australia; and

   (ii)     operated by that employer …

Background

1. As noted earlier, the first applicant lodged his application for a subclass 856 visa on 2 December 2010.  The first applicant stated in his application form that Sapphire International Pty Ltd had nominated him for appointment to the position of Software and Applications Programmer. 

2. On 28 November 2011 a departmental officer wrote to the applicant.  The officer stated that he was not satisfied that the first applicant met the requirements for the visa he sought because the nomination by his sponsor employer had been refused on 9 June 2011 and so he would not have an approved appointment at the time of the delegate’s decision. For those reasons, the delegate formally refused the applicants’ application on 14 August 2012.

3. On 21 June 2013 and 24 July 2013 the Tribunal wrote to the applicants inviting them to comment on information obtained from the Australian Securities and Investments Commission that Sapphire International Pty Ltd had been deregistered on 23 December 2012.  The Tribunal stated that the information indicated that the nominating company was no longer operating and that the nominated position was no longer available to the first applicant.

4. On 3 September 2013 the applicants attended a Tribunal hearing in order to give evidence and present submissions.  The first applicant gave the following evidence:

   a)his sponsor was an IT college but he had never worked for it;

   b)he had applied for an “ENS” visa through the college but that application had been refused;

   c)he had heard that the company had been de-registered and had been aware that the college had closed a few months after his visa application had been refused but was not sure why the application had been refused. He wanted further time so he could speak to the college about re-registering the company; and

   d)two months prior to the hearing he spoke to a representative from the company and that person offered to sponsor him through another business.

5. On 17 September 2013 the Tribunal wrote to the applicants inviting them to comment on its preliminary view that the application for review by the fourth applicant was not a valid application as he had been born after the delegate’s decision.

The Tribunal’s decision and reasons

1. As a preliminary issue, the Tribunal found that it did not have jurisdiction to conduct a review in respect of the fourth applicant as he had been born after the primary decision to refuse his family members’ visas and therefore there was no “MRT-reviewable” decision in respect of him. The Tribunal did not accept that the Regulations provided a mechanism by which a newborn child could be included in a visa application of his or her parents which had been refused and where the decision to refuse the parents’ visas was in the process of review by the Tribunal.

2. Substantively, while the Tribunal accepted that the first applicant had been nominated by Sapphire International Pty Ltd and had thus satisfied the time of application criteria, it held that the appointment had not been approved at the time of its decision and thus cl.856.221(a) had not been met. Further, and in the alternative, it was not satisfied that the relevant appointment was still available to the first applicant as the nominating employer had been deregistered and was no longer operating. Therefore the applicants failed to meet cl.856.221(d).

3. In reaching its decision, the Tribunal referred to the applicants’ repeated requests for an adjournment of the review before, during and after the Tribunal hearing on the grounds that their representative had only recently been appointed and there were a number of Freedom of Information (“FOI”) requests outstanding relating to the first applicant’s sponsoring employer. They also sought more time to investigate the possibility of re-registering the company. In refusing these adjournment requests, the Tribunal considered that it was not reasonable to adjourn the review in circumstances where any further information from departmental files would have no possible impact on the outcome of the review, the re-registration of the company appeared to be a remote possibility and where the nomination had to be the same one that was relied on at the time of the application.

4. The Tribunal also referred to the first applicant’s request for an adjournment on the basis that his family was settled in Australia, that they had been in Australia for a long time and that he wanted to complete a professional year of studies which might give him further opportunities to apply for permanent residence.  On the basis that those circumstances were not relevant to the issues under review, the Tribunal did not consider that these were grounds which justified delaying the decision in this case.  

Proceeding in this Court

1. In the application commencing this proceeding the applicants alleged:

   1.The second respondent made an jurisdictional error in that it made an error of law by construing clause 856.221 of the Schedule 2 of Migration regulation 1994 as requiring the appointment referred to as being only that appointment described in the application form.

2. In written submissions filed on 12 February 2015 the applicants also submitted that the Tribunal’s refusal of an adjournment was unreasonable.  In oral submissions at the hearing of this application the first applicant submitted that he had wanted further time to find another company which could sponsor him and that there was no proper reason for the Tribunal not to have granted that time. 

3. The Tribunal’s decision in relation to the applicants’ satisfaction of the criteria for the grant of the visa they sought was plainly correct.  As it stood at the relevant time, cl.856.221 specifically referred to the appointment mentioned in cl.856.213(a).  Clause 856.213(a) spoke of an appointment in the business of the nominating employer as at the time of application.  Consequently, when cl.856.221 spoke of an appointment being approved and an appointment still being available to the applicant, it was speaking of the appointment in the business of the nominating employer as at the time of application.  Consequently, the Tribunal’s conclusion that the delegate’s decision was to be affirmed by reason that the applicants did not satisfy cl.856.221 was correct. 

4. The submission that the Tribunal’s refusal of an adjournment was unreasonable must also be rejected.  The Tribunal identified the bases upon which the applicants sought an adjournment – such as the need to obtain information through FOI processes, the possibility that the sponsoring company might be re-registered, and other grounds – but it found that there was no point in adjourning the hearing or delaying its decision because it concluded that any information which might have been obtained through FOI processes would not have assisted the applicants’ position, that the re-registration of the sponsoring company was unlikely and that, in any event, the nomination by the sponsoring company had been refused, a decision affirmed on review.    

5. In the circumstances, I do not find that the Tribunal failed properly to consider the matters raised by the applicants or that the decision was unreasonable in the way recently discussed by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh (2014) 139 ALD 50, following the decision of the High Court in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332.

6. Finally, the applicants’ oral submissions concerning the need to obtain an adjournment in order to find a new sponsor and the reasonableness of the Tribunal in not permitting that to happen also disclose no basis on which the Tribunal’s decision should be set aside.  As explained earlier in these reasons, the Tribunal could not have considered any nomination other than the one which was in place at the time the applicants made their visa application.  It would have availed the applicants nothing before the Tribunal if they had been able to identify another sponsor. 

7. Consequently, the Tribunal’s decision not to grant the applicants an adjournment was not flawed by reason that it denied them an opportunity to obtain an alternative sponsor. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  19 March 2015