Islam v Minister for Immigration

[2016] FCCA 181

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISLAM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 181

Catchwords:
MIGRATION – Review of decision of former Migration Review Tribunal – refusal of temporary business visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)

Re Refugee Review Tribunal; Ex parte H (2001) 1790 ALR 425
SCAA v Minister for Immigration [2002] FCA 668
SZDFZ v Minister for Immigration [2008] FCA 390 at [40]
SZHVL v Minister for Immigration [2008] FCA 356 at [17]

First Applicant: A K M KAMRUL ISLAM

Second Applicant: ROWSHON ARA LIPY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3467 of 2014

Judgment of: Judge Driver

Hearing date: 4 February 2016

Delivered at: Sydney

Delivered on: 4 February 2016

REPRESENTATION

The applicants appeared in person

Solicitor for the Respondents: Ms B Griffin of Australian Government Solicitor

INTERLOCUTORY ORDERS

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

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3467 of 2014

A K M KAMRUL ISLAM

First Applicant

ROWSHON ARA LIPY

Second 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 former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 24 November 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants temporary business entry visas.

2. There are two applicants, who are a husband and wife.  They have a young child who was not a party to the visa application.  The relevant claims were made by the first applicant, the husband, Mr Islam.  Background to the applicants’ claims and the decision of the Tribunal on them is set out in the Minister’s outline of legal submissions. 

3. On 27 April 2013, Mr Islam applied for the visa[1]. The second applicant, Ms Lipy, was considered to be a member of the family unit and did not separately provide any claims against the primary criteria for the visa.

   [1] Court Book (CB) 1-73

4. Specific claims were made against the “standard business sponsorship” stream under clause 457.223(4) of the Migration Regulations 1994 (Regulations) on the basis of Mr Islam’s sponsored occupation of Project or Program Administrator for the business, a supermarket called Family Needs Pty Ltd (Family Needs). No claims were made in respect of any of the alternative streams in clause 457.223. Clause 457.223(4) is relevantly extracted and annexed to the Tribunal’s decision[2].

   [2] CB 194-195

5. On 1 August 2013, the application was refused because the Minister’s delegate was not satisfied the employment position was genuine and that clause 457.223(4)(d)(ii) was met[3].

   [3] CB 92-104

6. On 12 August 2013, Mr Islam applied for review of the delegate’s decision[4].

   [4] CB 105-116

7. On 5 September 2014, the Tribunal wrote to the applicants inviting them to appear at a hearing on 5 November 2014. The applicants were requested to provide information in writing to demonstrate that they were the subject of an approved business nomination which had not ceased, as required by clause 457.223(4)(a), or information to demonstrate that they would meet that requirement in the near future[5].

   [5] CB 126-128

8. On 5 November 2014, the applicants appeared before the Tribunal, accompanied by their migration agent[6]. The Tribunal also heard from a Mr Khan on behalf of Family Needs.

   [6] CB 131-133

9. On 10 November 2014, the Tribunal was advised that a new nomination form had been lodged with the Minister’s Department for the same position of Program and Project Administrator, approval for the related nomination given on 13 May 2013 having expired. The Tribunal was also informed that an enquiry to VETASSESS Advisory Service for the nominated occupation had been made for the applicant and the Tribunal was asked to await the outcome of that enquiry[7]. The applicants’ representative wrote:

   As the outcome of the VETASSESS advisory service enquiry and the formal skills assessment application (if it proceeds) are material to the review applicant’s MRT application we submit that in accordance to the principles of natural justice that the Member does not finalise the review application until the outcome(s) of the VETASSESS enquiry/application have been issued.

   [7] CB 167-183

10. On 13 November 2014, the Tribunal informed the applicants’ representative that the request had been carefully considered but that the Tribunal would not await the outcome and would proceed to a decision[8].

    [8] CB 184

Before the Tribunal

1. The Tribunal affirmed the decision of the delegate on 24 November 2015 and sent to the applicants on 25 November 2015[9].

   [9] CB 186-195

2. The Tribunal noted that when considering whether Mr Islam met the requirements of clause 457.223(4)(d), it had to be satisfied Mr Islam’s intention to perform the occupation was genuine and the position associated with the nominated occupation was genuine[10].  In reaching its decision, the Tribunal took into account information provided by Mr Islam and Mr Khan regarding the tasks to be carried out in light of the description of the occupation set out in ANZSCO code 5111112. The tasks described in ANZSCO and those provided by Mr Islam are set out in the Tribunal’s decision[11].

   [10] CB 189-190 at [9]

   [11] CB 189-191

3. As put to Mr Islam, the Tribunal found the focus on strategies to improve sales and plans to train staff in customer service as described by him more closely reflected the position of a Retail Manager (ANZSCO code 142111) than Project Administrator[12].

   [12] CB 192 at [15]

4. Regarding Mr Islam’s request that the Tribunal await the VETASSESS response, the Tribunal noted that this service provided advice relating to a Skills Assessment relevant to a nominated general professional occupation. The Tribunal declined to await the outcome of the enquiry as it considered it was not relevant to an assessment of the position relating to the application[13].

   [13] CB 192-193 at [16]

5. The Tribunal accepted that the owner wanted Mr Islam to help him grow his business but it did not accept the position was a Project Administrator occupation and was not satisfied the position associated with the nominated occupation was genuine[14]. Accordingly the Tribunal found the requirements of clause 457.223(4)(d) were not met[15].

   [14] CB 193 at [17]

   [15] CB 193 at [18]

The present proceedings

1. These proceedings began with a show cause application filed on 15 December 2014.  The applicants continue to rely upon that application.  There are four grounds in the application:

   1.The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration my oral and other documental evidences in relation to my nominated position as a “Program and Project Administrator (ANZSCO 511112)” while the nomination had already been approved for the business on 13/05/2013.

   2.The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction and denied procedural fairness by not giving any weight on my oral explanations and the documents provided for consideration in this regard. If the Tribunal has verified the matter individually and given me further opportunities to explain that could have led to a different decision by the [T]ribunal.

   3.The [T]ribunal biased by the overall information and considered my case on average without giving any weight on my claims and didn’t look the matter individually.

   4.The [T]ribunal denied the natural justice in determining my review application that the Tribunal is biased, or in the alternative, there was apprehension of bias in the making of the purported decision as the occupation is blacklisted by the Department of Immigration and Border Protection in general.

   (errors in original)

2. The application is supported by an affidavit filed with it, which I received as a submission. 

3. I have before me as evidence the book of relevant documents (court book) filed on 21 April 2015.  The Minister’s outline of legal submissions was read to Mr Islam before I came on the bench today.

4. Mr Islam’s circumstances evoke sympathy.  He came to Australia in 2007 to study and it appears that he has done so diligently and successfully.  His intention was and remains to find a pathway to permanent residence in this country.  He has married and started a family.  His application for the visa was for him the final step in what had been a long process.  There is no doubt that the visa application was made in good faith. 

5. As explained by Mr Islam and accepted by the solicitor for the Minister, the process involved three steps.  The first step involved the approval of a nomination.  The second step involved the approval of sponsorship of the prospective employer.  Mr Islam expressed some concern that documents relating to the first two steps were missing from the court book.  That appears to be true and the explanation appears to be that those documents were held on a different file.  However, there is no dispute that the approval of the nomination and sponsorship did not in itself guarantee approval of the visa application sought by Mr Islam.

6. The Tribunal needed to be satisfied both as to the proposed occupation advanced and Mr Islam’s capacity to perform the duties of that occupation.  At the Tribunal hearing, Mr Islam invited the Tribunal to await what is known as a VETASSESS assessment, which is directed to his capacity to perform the proposed duties.  The Tribunal declined to delay its decision because, as was made clear at the hearing, the Tribunal was concerned at the nature of the proposed employment.

7. Put simply, the Tribunal needed to be satisfied that the employment proposed met the requirements of clause 457.223(4)(d) of the Regulations.  There appears to have been no doubt that there was a job for Mr Islam.  The dispute concerned the real nature of that job.  The employment proposed was described as a project administrator position. 

8. The Tribunal, after analysing the available material, formed the view that the position was more closely that of a retail manager.  In other words, the position was put forward at a higher level than that which it was in reality.  For that reason, the Tribunal was not satisfied that the requirements of clause 457.223(4)(d) had been met.  In my view, the conclusion reached by the Tribunal was open to it on the material before it.  That goes to the heart of the matter. 

9. Mr Islam told me that he is making a second attempt to obtain permanent residence through a fresh visa application.  That process will, I understand, take at least six months.  He and his wife currently hold bridging visas.  Mr Islam impressed me as an intelligent, conscientious and honest man.  In my view, he would be an asset to the Australian community.  It is not for me, however, to approve or disapprove of his aspirations to obtain permanent residence.  That is a matter for the Minister and his Department.  I do hope, however, that he is permitted to complete the second visa application process on which he is now engaged.

10. In my view, the grounds advanced in the show cause application are not arguable.  I agree with the Minister’s submissions in relation to those grounds. 

Ground 1

1. The Tribunal found Mr Islam failed to meet the requirements of clause 457.223(4)(d). In making that finding, it is evident from the Tribunal’s reasons at [10]-[16] that it took into account of Mr Islam’s oral evidence to the Tribunal and evidence regarding his nominated position provided both before and after the hearing.

2. The Tribunal did not err in its consideration of these matters. The findings it made were open on the material before it as set out in its reasons.

Ground 2

1. Contrary to what is asserted in Ground 2, the Tribunal’s reasons disclose that it considered the position which Mr Islam would undertake against the relevant ANZSCO code and took into account the evidence given by Mr Islam and the Director of the business. The Tribunal’s conclusions are summarised above. The findings made were available on the evidence before the Tribunal for the reasons given.

2. There is no evidence that Mr Islam requested further time to make submissions, nor is there any indication from him what that further evidence might have been.  If Mr Islam is referring to the Tribunal’s decision not to await the outcome of the VETASSESS Skills assessment, the explanation given by the Tribunal at [16] of its reasons is accurate and sufficiently explains that decision.

3. To the extent Mr Islam disagrees with the findings made, mere disagreement with findings of fact or the weight given to matters does not constitute jurisdictional error[16].

   [16] SZDFZ v Minister for Immigration [2008] FCA 390 at [40]

Grounds 3 and 4

1. Insofar as Mr Islam alleges bias, that contention is not supported by any particulars or evidence. There is no affidavit evidence annexing a transcript filed in these proceedings and it is a rare and exceptional case where bias may be established solely on the basis of the Tribunal’s reasons for decision[17].  The mere fact of an adverse decision or findings against an applicant does not, of itself, give rise to an inference of bias or suggest the decision maker approached his or her task other than with a mind open to persuasion[18].  There is nothing in the Tribunal’s decision to suggest that it approached its task other than with an open and impartial mind[19].  Nor is there any support for the claim that the Tribunal failed to look at Mr Islam’s claims “individually” as asserted in Ground 3. Indeed, the reasons speak to the contrary.

   [17] SZHVL v Minister for Immigration [2008] FCA 356 at [17]

   [18] SCAA v Minister for Immigration [2002] FCA 668 at [37]–[38]

   [19] Re Refugee Review Tribunal; Ex parte H (2001) 1790 ALR 425 at [27]–[32]

2. In response to the claim that Mr Islam was denied natural justice, there is no particularisation of this contention. Mr Islam attended a hearing before the Tribunal, with his representative, at which the content of the position under consideration was clearly discussed with him.

3. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules)

4. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The Minister’s actual costs substantially exceed that amount. Mr Islam did not wish to be heard on costs. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 8 February 2016