Islam v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs

[2021] FCCA 401

FEDERAL CIRCUIT COURT OF AUSTRALIA

Islam v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 401

File number(s):

SYG 1094 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

4 March 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a subclass 187 visa – whether an adjournment should be granted – whether the application in a case for reinstatement should be allowed – whether the Tribunal decision was legally unreasonable – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal misapplied the relevant law – no jurisdictional error made out – application in a case dismissed.   

Legislation:

 Migration Act 1958 (Cth) ss 359A, 359C, 360(3), 363A, 476

Migration Regulations1994 (Cth) cl. 187.233

Number of paragraphs:

18

Date of hearing:

4 March 2021

Place:

Sydney

Counsel for the Applicants:

In person

Solicitor for the Respondents:

Mr K Sypott, Australian Government Solicitors

ORDERS

SYG 1094 of 2019

BETWEEN:

MD MAHBUBUL ISLAM

First Applicant

SADIA ALI

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	4 MARCH 2021

THE COURT ORDERS THAT:  

1.The oral application for an adjournment is dismissed.

2.The application in a case for reinstatement filed on 15 February 2021 is dismissed.

3.The applicants pay the first respondent’s costs fixed in the amount of $1,400.00.

REASONS FOR JUDGMENT:

JUDGE STREET:

1. This is an application for reinstatement of proceedings that were dismissed for non-appearance on 3 February 2021.

2. The substantive proceedings are ones in respect of which the applicants are seeking a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“The Act”) in respect of a decision of the Administrative Appeals Tribunal (“The Tribunal”) made on 16 April 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas (“The Visas”).

3. The applicants are Bangladesh nationals. The Tribunal identified that, on 24 October 2018, the Delegate refused to grant the Visas on the basis that the first applicant did not meet the requirements of cl 187.233 of Sch 2 to the Migration Regulations 1994 (Cth) (“The Regulations”) because the nomination application by the prospective employer had been refused. That was an essential requirement for the grant of the Visa.  Notwithstanding that, the applicants lodged an application for review on 29 October 2018. 

4. On 28 March 2019, the Tribunal, consistent with s 359A of the Act, wrote to the applicants at the applicants’ email address provided on the review application, inviting them to comment on the fact that the nomination had not been approved.  There was no response to that letter. 

5. In accordance with the provisions of s 360(3) and s 359C of the Act, the applicants lost an entitlement to appear before the Tribunal. The Tribunal correctly identified the consequences under s 363A of the Act and proceeded to determine the review application, identifying that there was no approved nomination, and affirming the decision under review.

   BEFORE THE COURT

6. These proceedings were commenced on 6 May 2019.

7. The history of the proceedings is most unfortunate. At the commencement of the hearing today, the Court explained to the first applicant and then subsequently the second applicant the nature of the hearing.

8. The first applicant sought an adjournment on the basis that he was having difficulty understanding what was occurring.  It was apparent from the oral submissions of the first applicant that he was able to meaningfully participate in the hearing.  The application for an adjournment was advanced on the basis he wished to obtain further material and/or because he was not well.  The Court was not satisfied that either ground identified an adequate basis for an adjournment. 

9. The second applicant sought to give submissions as to her husband’s wellbeing and understandably, was seeking to identify the extent of the illness that he is suffering.  It became clear, however, that there was a deliberate decision made to not attend the hearing on 3 February 2021 by what was said by the second applicant. 

10. Nothing said by the applicants identified any proper basis on which an adjournment should be granted.  The Court has taken into account the want of merit in the substantive proceedings and that they have no reasonable prospect of success. In these circumstances, an adjournment was not warranted in the interests of the administration of justice.

11. It is for these reasons that the oral application for an adjournment was dismissed.

    THE GROUNDS

12. The grounds of the application are as follows:

    Ground 1

    (1) The Tribunal decision was affected by erred of law, procedural fairness and jurisdictional error in relation to exercise its discretion under the Migration Act.
    Particulars:
    Discretion has the meaning of acting on one's own authority and judgement. In law, discretion as to legal rulings, such as whether evidence is excluded, may be exercised by a judge or tribunal member at all levels of law enforcement, which was denied in this matter.

    Ground 2
    (2) The Tribunal made erred law and denial of natural justice not to consider section 359A responses by the applicant and allow applicant additional time to response.
    Particulars:
    The applicant failed to consider circumstances, which beyond applicants control to make an application for review by the sponsor. The sponsor did not continue sponsorship due to their own financial issues and the applicant was unable to seek another sponsorship within the short time. The applicant has genuine intention to work in Australia under subclass 187 visa application. It was beyond applicants control to force sponsor to make application for review and as a result applicant is unable to comply sponsorship requirements under visa sub class 187 visa.

    GROUND 1

13. In relation to Ground 1, it is apparent that the Tribunal did comply with the requirements of s 359A of the Act. On the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review and complied with its obligations of procedural fairness. The Tribunal had no discretion to exercise in this case. It is not apparent that there is any arguable case of relevant error disclosed by Ground 1.

    GROUND 2

14. In relation to Ground 2, there was a s 359A letter sent to the applicants. In the absence of an approved nomination, there were no circumstances that the Tribunal was required to consider. Accordingly, Ground 2 does not, on its face, identify any arguable case.

15. The first applicant contended that because he was sick that was why he was unable to attend.  It became clear that there was a deliberate decision made by the applicants not to attend so that they could attend a psychologist’s appointment.  The hearing was one proceeding by video and/or telephone.  A deliberate decision not to attend is entirely unsatisfactory. 

16. Further, considering the merits of the underlying application, this is an application that has no reasonable prospect of success.  In the absence of the required approved nomination, the applicants could not succeed. Why these proceedings were allowed to drag on as they were over a substantial period of time is difficult to comprehend. The proceedings had no reasonable prospect of success when commenced in this Court. No arguable case of relevant error is disclosed.

17. There would be no utility whatsoever in reinstating the proceedings as without an approved nomination the applicants could not succeed in obtaining the relevant visas. 

18. In these circumstances, the Court is not satisfied that there is either a satisfactory explanation for the failure to appear or any utility in reinstating the proceedings. Accordingly, the application in a case is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 4 March 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       9 June 2021