Islam v Minister for Immigration and Border Protection
[2016] FCA 531
•12 May 2016
FEDERAL COURT OF AUSTRALIA
Islam v Minister for Immigration and Border Protection [2016] FCA 531
Appeal from: Application for extension of time and leave to appeal: Islam & Anor v Minister for Immigration & Anor [2016] FCCA 181 File number: NSD 279 of 2016 Judge: DAVIES J Date of judgment: 12 May 2016 Date of hearing: 12 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 9 Counsel for the Applicants: The Applicants appeared in person Solicitor for the First Respondent: F Taah of the Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent entered a submitting appearance, save as to costs ORDERS
NSD 279 of 2016 BETWEEN: A K M KAMRUL ISLAM
First Applicant
ROWSHON ARA LIPY
Second ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
12 MAY 2016
THE COURT ORDERS THAT:
1.The third applicant be removed as applicant to the proceedings.
2.The application be dismissed.
3.The applicants pay the costs of the first respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)DAVIES J:
The applicants have applied for an extension of time to seek leave to appeal from a judgment of the Federal Circuit Court (“the FCC”). The FCC dismissed the applicants’ application for judicial review of a decision of the second respondent (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Minister”), not to grant the applicants temporary business entry visas. The application is supported by an affidavit affirmed by the first applicant.
The applicants were out of time by seven days to apply for leave and there has not been an extensive delay by the applicants in bringing this application. However, the explanation given by the applicants for not making their application within time was not entirely satisfactory. In his affidavit, the first applicant stated that he was suffering from “some medical condition that affected [his] regular life, and [he had] miscalculated the time limitation for this application”. Exhibited to his affidavit are some medical documents which indicate that the first applicant did suffer a workplace injury on 26 November 2015 from lifting heavy boxes and had an onset of lower back pain and did not work between 29 November 2015 and 8 December 2015. His pain had largely resolved by 14 January 2016 though and he was working his full hours again as at 21 January 2016. The FCC hearing was on 4 February 2016 and judgment and orders were pronounced that day. The medical documents do not support his claim that his back injury was a reason for non-compliance with the time limits within which to make an application for leave to appeal from the FCC decision.
Nonetheless, I am prepared to accept that the applicants may have miscalculated the time in which to bring their application for leave to appeal and I would accept that explanation as reasonable given the short delay. However, I do not consider an extension of time in which to make the application for leave to appeal should be granted to the applicants because I am not satisfied that the proposed appeal has any prospects of success.
The proposed appeal relies on the same grounds upon which the applicants made application to the FCC to review the decision of the Tribunal. The grounds are as follows:
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 tribunal.
3.The tribunal 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 tribunal denied the natural justice in determining my review application that the Tribunal is biased, or in the alternative, there was an 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.
The applicants had applied for Temporary Business Entry (Class UC) Subclass 457 visas. The criteria for subclass 457 visas are set out in Pt 457 of Sch 2 to the Migration Regulations 1994 (Cth). One of the criteria to be satisfied is cl 457.223. Clause 457.223(4) relevantly provides that an applicant meets the requirements of the subclause if:
(a) each of the following applies:
(i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the [Migration Act];
…
(iii)the approval of the nomination has not ceased as provided for in regulation 2.75; and
…
(d)the Minister is satisfied that:
(i) the applicant’s intention to perform the occupation is genuine; and
(ii)the position associated with the nominated occupation is genuine; and
…
In his visa application, the first applicant’s nominated occupation was Program and Project Administrator and the position was Project Administrator. The nomination was approved on 13 May 2013 for the occupation of Program and Project Administrator. That nomination had expired by the time of the Tribunal hearing, though a new nomination form had been lodged with the Minister’s Department for the same position. The Tribunal was advised by the applicant’s representative that an inquiry to VETASSESS for the nominated occupation of Program and Project Administrator had been made for the first applicant and the Tribunal was asked to await the outcome of that inquiry. The Tribunal declined to do so as the substantive issue before the Tribunal was whether the position of Project Administrator was genuine, being a requirement of cl 457.223(4)(d)(ii), not whether the first applicant had the qualifications and skills for the nominated position relating to the application. The Tribunal did not accept that the position offered to the first applicant was a Project Administrator occupation and accordingly was not satisfied that the position associated with the nominated occupation was genuine.
The FCC rejected each of the grounds of the application for review as follows:
Ground 1
26.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.
27.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
28.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.
29.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.
30.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.
Grounds 3 and 4
31.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. 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. There is nothing in the Tribunal’s decision to suggest that it approached its task other than with an open and impartial mind. 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.
32.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.
(footnotes omitted)
I agree with the reasons given by the FCC for dismissing the application for review. No arguable error of law has been shown in the FCC’s reasons and the FCC was correct to dismiss the application.
A grant of leave to appeal, therefore, would have no utility because no arguable ground of appeal has been identified. The application for an extension of time in which to bring the appeal should therefore be dismissed.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 16 May 2016
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