Islam v Minister for Immigration

[2016] FCCA 304

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISLAM v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 304

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Regional Employer Nomination (Permanent) (Class RN) visa – whether the Tribunal should have granted the applicant an adjournment – whether there was any utility in granting the adjournment – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, reg. 5.19(4)(h)(ii), cl.187.223(1)(a), Schedule 1

Applicant: MOHAMMAD ZAHIRUL ISLAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2649 of 2015

Judgment of: Judge Street

Hearing date: 16 February 2016

Date of Last Submission: 16 February 2016

Delivered at: Sydney

Delivered on: 16 February 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr G Johnson

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2649 of 2015

MOHAMMAD ZAHIRUL ISLAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 31 August 2015 affirming the decision of the delegate not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa. The applicant is a citizen of Bangladesh. He applied on 9 July 2014 for a class RN visa in the direct entry system.

2. It was a criteria in the grant of that visa that the position nominated in an application for approval be made by the prospective employer pursuant to reg.5.19(4)(h)(ii) of the Migration Regulations 1994 and in relation to which the declaration mentioned in reg.1114C(3)(c) and (d) of Schedule 1 of the Regulations was made in the application for the grant of the visa pursuant to cl.187.223(1)(a) of Schedule 2 of the Regulations.

3. The details of the nomination included in the visa application were given a reference number, type and a transaction reference.  At this time, an application for nomination was lodged by the applicant’s then employer, a particular company, and the employer sought to nominate the applicant for a particular position.  On 29 October 2014, the Department requested that the applicant provide further information to enable it to decide whether to grant the visa. 

4. On the same day, the applicant was invited to comment on adverse information, being that the first nomination application had been refused.  The applicant did not respond to the Department’s invitation to comment.  As a consequence of the Department’s decision to refuse the nomination application, the delegate found the applicant was unable to satisfy the requirements for the grant of the visa and the application for a visa was refused.

5. The applicant sought review of the delegate’s decision to refuse to grant the visa and was invited to appear before the Tribunal and to give evidence and present arguments on 29 May 2015.  That hearing was conducted with the assistance of an interpreter and the applicant was then represented by two migration agents.  Following the hearing on 28 August 2015, the applicant’s migration agent advised that the applicant’s employer was insolvent and had withdrawn its nomination of the applicant. The migration agent advised that the applicant had obtained employment with a new employer, and that the new employer had applied to the Department on 11 August 2015. The applicant’s migration agent requested an adjournment by the Tribunal to await the outcome of the nomination application of a new employer.

6. The Tribunal identified the requirements of cl.187.223(1) that the nominated position was identified in the declaration included in the visa application and that this meant that the nomination available to the applicant at the time of the Tribunal’s decision must be with the same employer and in the same position as at the time that the applicant made the declaration.  It was in those circumstances the Tribunal said it was not open to the Tribunal to substitute the nomination approval for any new employee to enable the applicant to meet the requirements of cl.187.223(1).

7. It was in those circumstances that the Tribunal determined that it was not reasonable to await the outcome of the nomination application of the applicant’s new employer and the adjournment request was refused.  The Tribunal found that there was no approved nomination in relation to the applicant and that the applicant did not meet the requirements of cl.187.223. 

8. A Registrar of the Court made orders on 12 November 2015 fixing the matter for hearing today. The orders provided for the filing of an amended application and submissions by the applicant. No such documents were filed.

9. The ground of the application is as follows.

   1. The tribunal failed to await the outcome of the nomination application of my new employer.

10. In relation to the ground advanced, the Tribunal identified the request for an adjournment and gave consideration to that request and identified the lack of utility in any adjournment, given the requirements of cl.187.223(1).  In those circumstances, it was open to the Tribunal acting reasonably not to await the outcome of a process that could not enable the applicant to meet the criteria under cl.187.233. The decision of the Tribunal not to grant the adjournment cannot be said to lack an evident and intelligible justification.

11. Ground 1 fails to make out any jurisdictional error.  I accept the submission of the first respondent that on the proper construction of cl.187.223 the position to which the application relates must be a position that meets the requirements of paras.(a) and (b).  I accept the first respondent’s submission that in the circumstances of the insolvency of the employer applicant in the application it was not possible for the applicant to meet the requirements of cl.187.223.  

12. The applicant contended that he had, in essence, the same employer providing him with the same position in respect of the second nomination.  The insolvency of the corporate entity means that the applicant’s contention that it is the same employer cannot succeed.  Nothing said by the applicant identified any jurisdictional error by the Tribunal.  The application is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 February 2016