JAMAL v Minister for Immigration

[2015] FCCA 901

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAMAL & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 901

Catchwords:
MIGRATION – Migration Review Tribunal – Regional Employer Nomination Permanent (class RN) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, s.476
Migration Regulations 1994, Schedule 2 cl.187.233

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

First Applicant: NOWSHIN JAMAL

Second Applicant: MD TAWHIDUL ISLAM

Third Applicant: NAMEERA NIMAT TAWHID

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 722 of 2015

Judgment of: Judge Street

Hearing date: 9 April 2015

Date of Last Submission: 9 April 2015

Delivered at: Sydney

Delivered on: 9 April 2015

REPRESENTATION

No appearance by or on behalf of the Applicants

Solicitors for the Respondent:

Ms A. Carr

DLA Piper

ORDERS

1. The proceedings be summarily dismissed.

2. The First and Second Applicant to pay the First Respondent’s costs fixed in the sum of $800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 722 of 2015

NOWSHIN JAMAL

First Applicant

MD TAWHIDUL ISLAM

Second Applicant

NAMEERA NIMAT TAWHID

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW 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 in respect of a decision of the Tribunal made on 18 February 2015 affirming a decision not to grant the applicants’ Regional Employer Nomination Permanent (class RN) visas. 

2. The application identifies the following ground:

   The member did not apply the law correctly she misinterprets cl.187.233.

3. The application identifies on the first date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

4. The matter was listed for hearing at 9.30am.  The matter has been called outside the Court, and it is now 2.30, and there is no appearance by any of the applicants.  Whilst this is a matter that could be dealt with for default of appearance, having looked at the application and the Tribunal’s reasons the Court is of the view that the matter is one in which there is no reasonable prospect of success. 

5. In considering exercise of the Court’s summary jurisdiction under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

6. The ground identified in the application plainly fails to identify any jurisdictional error and is an impermissible challenge to an adverse finding of fact. The applicants applied for the subclass 187 visas on 3 May 2013, which was refused by the delegate because the applicants did not meet cl.187.233 of Schedule 2 to the Migration Regulations 1994.  The applicants sought a review and were represented by a registered migration agent. 

7. The application for approval of Charlie’s Hair and Nail Pty Limited as the nominator was refused, and an application for review in respect of that refusal was lodged out of time, and accordingly the Tribunal did not have jurisdiction to review the related nomination application.  As the Tribunal noted, as a consequence the refusal to approve the nomination of the position associated with the applicants’ visa application remained unchanged.  The Tribunal notes in para.8 that it wrote to the applicants inviting them to comment or respond to that information and that the applicants’ response was that a new nomination had been lodged.  The applicants were invited to appear before the Tribunal on 18 February 2015. 

8. The Tribunal notes that the applicant understood that the current visa could not be granted on the basis of the nomination by the new entity, Fame Hair and Beauty Salon Pty Limited, but it requested the Tribunal delay its decision until that position was approved. The Tribunal did not agree to adjourn the review until a review was made on the new nomination, because the outcome of the new nomination would have no bearing of the visa application the subject of review. The Tribunal noted that this was because cl.187.233 requires that that approved position must be one that was the subject of the declaration that was required to be made as part of the current visa application. In that regard, the Tribunal noted that the position that was the subject of the declaration was one made by Charlie’s Hair and Nail Pty Limited and that that nomination was refused.

9. It was in those circumstances that the Tribunal decided it was appropriate to proceed with the determination of the review and found that the applicants did not meet the requirements for cl.187.233. The finding made by the Tribunal was clearly open. There was no error in the approach of the Tribunal in proceedings to determine the review in the circumstances identified. I am clearly satisfied that the proceedings are doomed to failure. I am clearly satisfied proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  13 April 2015