Islam v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FCA 131

FEDERAL COURT OF AUSTRALIA

Islam v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 131

Appeal from:

Islam & Ors v Minister for Immigration & Anor [2020] FCCA 1999

File number:

NSD 879 of 2020

Judgment of:

NICHOLAS J

Date of judgment:

23 February 2024

Catchwords:

MIGRATION – where Delegate refused application of grant of Regional Employer Nomination (Permanent) (Class RN) Subclass 187 (Regional Sponsored Migration Scheme) visa on ground that applicant did not satisfy mandatory requirement – where Tribunal affirmed decision of Delegate – where primary judge dismissed application for judicial review – where no error in primary judge’s decision shown

Held: appeal dismissed

Legislation:

Migration Regulations 1994 (Cth) cl 187.233

Cases cited:

Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

9

Date of hearing:

23 February 2024

Counsel for the Appellants:

The first appellant appeared in person with the assistance of an interpreter and behalf of the second and third appellants

Solicitor for the First Respondent:

Mr Z McCaughan of MinterEllison

Counsel for the Second Respondent:

The second respondents submitted save as to costs

ORDERS

NSD 879 of 2020

BETWEEN:

TANJILUN ISLAM

First Appellant

KAZI SHAHADAT HOSSAIN

Second Appellant

SALWA KHONDOKER SUBHA

Third Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	NICHOLAS J
DATE OF ORDER:	23 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The first and second appellants pay the first respondent’s costs of the appeal as taxed or agreed.

3.The name of the first respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from Transcript)

NICHOLAS J:

1. Before me is an appeal from a judgment of the Federal Circuit Court of Australia (as it then was) made on 22 July 2020 dismissing an application for judicial review of a decision of the second respondent (“the Tribunal”) dated 8 July 2019. By its decision, the Tribunal found that each of the appellants did not meet the eligibility requirements for the grant of a Regional Employer Nomination (Permanent) (Class RN) Subclass 187 (Regional Sponsored Migration Scheme) visa (“the Visa”). The relevant requirements for the Visa are found in cl 187.233 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

2. The appellants are citizens of Bangladesh.  The first appellant applied for the Visa on 22 February 2018.  The second and third appellants were dependent applicants.  The application was refused by a Delegate of the first respondent (“the Minister”) on 5 April 2019, on the basis that the first appellant was seeking the Visa to work in a nominated position for a company called Vision Smart Pty Ltd (“Vision Smart”), but that nomination was refused by a Delegate of the Minister on 11 December 2018.

3. Clause 187.233(3) requires that the Visa application relate to a position that is the subject of a nomination that has been approved by the Minister. In this case, the Delegate refused the Visa application because Vision Smart’s application for approval of the relevant nomination was refused. It followed that the first appellant could not meet a mandatory requirement imposed by cl 187.233(3) on which the first appellant’s eligibility for the Visa depended.

4. On review, the Tribunal found that there was no approved nomination for the Visa and that the requirements of cl 187.233(3) were not met. The Tribunal also noted the first appellant only sought to satisfy the criteria for the Visa in the Direct Entry Stream, and no claims were made in relation to other visa streams. Since the Direct Entry Stream requirements were not satisfied, the Tribunal affirmed the decision under review. The Tribunal also noted that the second and third appellants were members of the first appellant’s family unit included in a combined application. For that reason, the Delegate’s decision not to grant them visas was also affirmed.

5. The primary judge observed that the matter came before him in unfortunate circumstances, in that the first appellant appeared to be the victim of a fraud perpetrated by an unregistered Migration Agent.  Nevertheless, his Honour found that the Tribunal had no option but to affirm the Delegate’s decision because a mandatory requirement for the grant of the Visa had not been satisfied.  His Honour found that there was no jurisdictional error apparent on the face of the Tribunal’s decision.

6. The appellants’ notice of appeal asserts that the Tribunal failed to exercise its jurisdiction by not considering all aspects of their claims. It is not apparent from the notice of appeal what aspects of the appellants’ claims were not considered by the Tribunal. The appellants made no written submissions to this Court, and the first appellant (who appeared at the hearing) made no oral submissions in support of the appeal. In any event, the notice of appeal fails to grapple with the Tribunal’s finding that the requirements of cl 187.233(3) were not met.

7. Clause 187.233(3) of Sch 2 to the Regulations, like cl 187.233(1), imposes a single requirement which is either fulfilled or not fulfilled at the time of decision: Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267 at [88] per Mortimer J in relation to cl 187.233(1), Jagot and Bromberg JJ agreeing. In circumstances where the nomination application was refused and was not made the subject of a review application, it follows that the first appellant could not satisfy cl 187.233(3) of Sch 2 to the Regulations.

8. The primary judge’s decision was in my opinion correct.  The appeal must be dismissed.  The first and second appellants must pay the first respondent’s costs of the appeal. 

9. Orders accordingly. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.

Associate:

Dated:       28 February 2024