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

The application be dismissed.
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

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.
The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
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.
For the reasons which follow, the application will be dismissed.

Relevant legislation

The Employer Nomination (Residence) (Class BW) visa…

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: [2015] FCCA 617
Decision Date: 12 February 2015

CaseChat Overview and Summary

Islam (the applicant) sought judicial review of a decision by the Migration Review Tribunal (the Tribunal) to affirm the refusal of his employer nomination visa. The Minister for Immigration (the respondent) was the opposing party. The applicant contended that the Tribunal's decision was affected by jurisdictional error.

The primary legal issues before the court were whether the Tribunal applied an incorrect test in assessing the applicant's eligibility for the visa and whether the Tribunal erred in the exercise of its discretion regarding an adjournment of its review proceedings.

Justice Cameron found that the Tribunal had indeed applied an incorrect test when considering the applicant's eligibility, which constituted a jurisdictional error. Furthermore, the court determined that the Tribunal had also erred in its discretionary decision to refuse an adjournment, which further compounded the jurisdictional error. The court reasoned that the Tribunal's misapplication of the relevant legal tests and its improper exercise of discretion meant that its decision could not stand.

The court ordered that the decision of the Migration Review Tribunal be quashed.

Orders