JAMIL v Minister for Immigration

[2017] FCCA 2763

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAMIL & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2763

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal.

Legislation:

Migration Act 1958 (Cth), s.363(1)(b)

Migration Regulations 1994 (Cth), Sch 2 cl.457.223(4)(a)

Cases cited:

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18

First Applicant: RUKHSANA JAMIL

Second Applicant: MOHAMMAD AKRAM

Third Applicant: ISRA NOOR AKRAM

Fourth Applicant: MENAAL FATIMA AKRAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 348 of 2016

Judgment of: Judge Barnes

Hearing date: 2 November 2017

Delivered at: Sydney

Delivered on: 2 November 2017

REPRESENTATION

Applicants: In person

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed.

2. The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $5,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 348 of 2016

RUKHSANA JAMIL

First Applicant

MOHAMMAD AKRAM

Second Applicant

ISRA NOOR AKRAM

Third Applicant

MENAAL FATIMA AKRAM

Fourth 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 for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 21 January 2016.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants Temporary Business Entry (Class UC) visas.  In June 2013, the First and Second Applicants and their first child applied for Class UC visas on the basis of a nomination of the First Applicant (who, for convenience, I will refer to as the Applicant) by an approved sponsor.  Subsequently, a second child was born and was included in the visa application by virtue of operation of law. 

2. It was a requirement for the grant of the subclass of visa in issue (Subclass 457) that the Applicant be the subject of an approved nomination by an approved sponsor.  While there were alternative ways to apply for such visa, that was the basis on which the visa was sought in this case.  At the time of the visa application, Himalaya Pakistani and Indian Restaurant was identified as the sponsoring employer. 

3. In November 2014 the Department invited the Applicant (through her representative) to comment on information that the nominated employer did not have an approved nomination for her.  It appears that in response the Applicant provided two letters from the director and owner of the sponsor dated 17 November 2014, confirming that the Applicant had been employed with that organisation since September 2012 and indicating that it extended its sponsorship to all her family members as well. 

4. However on 13 January 2015 a delegate of the First Respondent refused to grant the visas. The delegate found that a previous approved business nomination by M.H.M. (NSW) Pty Ltd ATF Ahmed Family Trust (MHM) had expired on 7 November 2014. The delegate recorded that the prospective employer had been requested to lodge a further nomination application on 22 November 2014, but had not done so to date. On that basis the delegate concluded that the Applicant did not meet the criterion in cl.457.223(4)(a) in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

5. The Applicants sought review by the Tribunal.  It appears from the material before the Tribunal that, contrary to the delegate’s finding that there had been no further nomination application, a further nomination application had in fact been lodged by the Applicant’s prospective employer on or about 22 December 2014.  This emerged after the Tribunal wrote to the Applicants, through their migration agent, raising a preliminary concern that the review application was not valid on the basis that at the time of the review application there was no nomination of an occupation approved and in force or any application for a review of a decision to refuse a nomination pending before the Tribunal.

6. While not expressed as clearly as it might have been, the response from the Applicants’ migration agent of 3 March 2015 pointed out that the Department had on 22 December 2014 acknowledged that a nomination application had been lodged by MHM.  However the agent explained that he was advised that the nomination would be refused (as MHM had already obtained approval for two nominations), that this had occurred and that MHM had sought review by the Tribunal of the refusal of the nomination application. 

7. It is apparent that the Tribunal thereafter considered that the review application was valid.  There is no suggestion to the contrary in these proceedings.  By letter of 4 January 2016, the Applicants were invited to a Tribunal hearing on 21 January 2016. 

8. Late on the day before the scheduled hearing the Applicants’ migration agent sent an email to the Tribunal attaching a copy of a departmental acknowledgment of a further nomination application dated 20 January 2016 lodged by Himalaya Enterprises Ltd ATF Ahmed Family Trust. 

9. The hearing on 21 January 2016 was attended by the adult visa applicants.  Their solicitor/migration agent was not present.  On 21 January 2016 the Tribunal affirmed the decision not to grant the Applicants Class UC visas. 

10. In its reasons for decision, the Tribunal referred to the fact that the visa application of 28 June 2013 was made on the basis that the Applicant met the criteria for a Subclass 457 visa, in particular the time of decision criterion in cl.457.223(4) which applied to sponsorship for employment in an occupation by a standard business sponsor and that no claims had been made in respect of other alternative “streams” in relation to a Subclass 457 visa. 

11. The Tribunal explained that the issue was whether the Applicant met the requirement in cl.457.223(4)(a) that there be an approved nomination by a standard business sponsor, that had not ceased, of an occupation relating to the Applicant. It recorded that the application for the visa had been made on the basis of the Applicant’s proposed employment with her sponsor, MHM; that the Department had refused the application for business nomination approval lodged by MHM; that MHM had applied to the Tribunal for review of the decision to refuse the application for business nomination approval in the name of “Himalaya Enterprises Pty Ltd ATF Ahmed Family Trust” (Himalaya); and that on 24 August 2015 the Tribunal had affirmed that decision.  It is apparent that the Tribunal’s reference to a nomination application in this part of its reasons is a reference to the nomination application which the Department acknowledged it received on 22 December 2014. 

12. The Tribunal recorded that at the Tribunal hearing the Applicant told it that her sponsor had applied for nomination approval for the occupation of Customer Service Manager and that she was still working in that position, but that the Department had refused the nomination application and that she had been told that the sponsor’s review application was unsuccessful.  She indicated that her understanding was that the Department did not accept that the sponsor needed the position.  The Applicant acknowledged that she must be a subject of an approved nomination that had not ceased.  She drew to the Tribunal’s attention the fact that when she first applied for the visa in June 2013, there was an approved nomination, but it ceased in 2014 and the sponsor’s new nomination application was refused.  The Tribunal recorded that the Applicant indicated that she understood there was no current approved nomination that had not ceased.  The Tribunal stated that it had explained to the Applicant that in these circumstances it would have to find that she did not meet the requirement that she was the subject of an approved nomination that had not ceased and it would then have to affirm the decision.  I note that the only evidence before the Court of what occurred in the Tribunal hearing, other than the hearing record, is the Tribunal’s account in its reasons for decision.

13. The Tribunal recorded that the Applicant also said that the agent had lodged a new nomination application at 5:00pm on the day before the hearing.  The Tribunal asked her if the sponsor’s circumstances had changed recently and recorded that she indicated that they had not changed.  The Tribunal stated that in those circumstances there appeared to be no utility in waiting for the new nomination application to be processed because, on the Applicant’s evidence, the sponsor’s last nomination application was unsuccessful and there was no evidence before it to suggest that the latest nomination application would be successful.  The Tribunal informed the Applicant that in these circumstances it would not agree to wait for the sponsor’s new nomination application to be processed.  The Applicant indicated that she understood. 

14. The Tribunal recorded that after the hearing it was provided with a copy of the acknowledgement of the nomination application lodged on 20 January 2016. 

15. In assessing the evidence, the Tribunal referred to the requirement in cl.457.223(4)(a) that the Applicant demonstrate she was the subject of an approved nomination of an occupation that had not ceased. It had regard to the fact that while at the hearing the Applicant stated that she was sponsored by Himalaya, where she currently worked, she had also confirmed she was not the subject of an approved nomination of an occupation that had not ceased.

16. The Tribunal continued at paragraph 15: 

    The Tribunal has taken into account the nomination application lodged by the sponsor the day before the hearing.  It has considered whether it is appropriate to postpone its decision in order for the latest nomination application to be processed.  However in considering this it takes into account the applicant’s evidence that the sponsor’s circumstances have not changed recently.  The sponsor’s previous nomination application was refused.  There is nothing before the Tribunal to indicate the sponsor will be successful in its most recent nomination application.  In these circumstances the Tribunal is of the view there is no utility in waiting for the sponsor’s nomination application of 20 January 2016 to be processed.

17. The Tribunal was not satisfied that the Applicant was the subject of an approved nomination that had not ceased and hence found that the requirements of cl.457.223(4)(a) were not met.

18. It also found there was no evidence to suggest any of the other Applicants (who claimed to be members of the Applicant’s family unit) met the primary requirements for the grant of a visa.  It recorded that no claims had been made in respect of the other “streams” in relation to Subclass 457 visas and that there was no evidence the Applicant would be able to satisfy the specified criteria for those streams. 

19. The Tribunal affirmed the delegate’s decision.

20. The Applicants sought review by application filed on 17 February 2016.  There are two grounds in the application.  The Applicants did not file an amended application, any affidavit evidence or written submissions, but the two adult Applicants were given the opportunity today to address the grounds in the application and any other concerns they had about the Tribunal’s decision or procedures. 

21. It is convenient to consider first the grounds in the application.  Ground 1 is that the Tribunal erred “by not allowing further time for the approval of a business Nomination for the sponsor business which were (sic) pending for decision in the Department of Immigration and Border Protection”. 

22. The particulars to this ground simply refer to paragraph 15 of the Tribunal decision set out at [16] above. The Applicants take issue with the fact that the Tribunal did not postpone its decision to await processing of the most recent nomination application.

23. I take ground 1 to involve a contention that the Tribunal exercised its discretion in relation to adjournment (see s.363(1)(b) of the Migration Act 1958 (Cth) (the Act)) in a manner that was legally unreasonable. It has not been established that the Tribunal acted unreasonably in the manner in which it exercised that discretion in the sense considered in Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18 or otherwise. The Tribunal is not under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence (see Li at [81] per Hayne, Kiefel and Bell JJ). The First Respondent referred to Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617, in which the Federal Court held that the Tribunal was under no obligation to postpone a decision to await determination by the Department of an application for a business sponsor or nomination approval so that the Applicant could attempt to meet statutory criteria not yet found to have been fulfilled (at [31] per Conti J).

24. While the present case is not a case in which the Applicant had made numerous requests for adjournment, there had been a recent unsuccessful nomination application by her sponsor and the Tribunal’s conclusion in relation to an adjournment had an evident and intelligible justification (see Li at [76] per Hayne, Kiefel, and Bell JJ). The Tribunal considered the fact that the Applicant was aware of the absence of an approved nomination. It took into account that, as she understood, the December 2014 nomination application had been refused and the Tribunal had affirmed that decision in August 2015. It had regard to the Applicant’s evidence that her agent had lodged a new nomination application with the Department late the day before the hearing. The Tribunal considered whether there was a proper basis for expecting a favourable outcome for such a new application (cf Li at [21]) in circumstances where a differently constituted Tribunal had not long before (in August 2015) made a decision to affirm the Department’s refusal of a nomination of the same occupation by the same employer in relation to the Applicant. It asked the Applicant (who worked for the proposed sponsor as a Customer Service Manager) whether its circumstances had changed recently. It had regard to her evidence that her sponsor’s circumstances had not changed. There is no evidence that the Applicant advanced any reason why the further nomination application might succeed. Nor had her agent. The Tribunal put to her that there was no evidence to suggest the latest nomination application would be successful. It was in these circumstances that the Tribunal considered whether there would be any utility in an adjournment (cf Li at [82]-[83]), consistent with the purpose of the discretion in s.363(1)(b) of the Act (cf Li at [85]).

25. In oral submissions the Applicant raised a number of related issues.  She told the Court that she did not know why the Department did not approve the second nomination.  This contention appears to be a reference to the December 2014 nomination application and may also be intended to suggest a lack of understanding as to why the Tribunal affirmed that decision.  Despite this, the Applicant told the Tribunal that her understanding was that the Department did not accept that the sponsor needed the position she occupied.  The nomination application was made by the business sponsor and not by the visa applicant.  Any lack of understanding of the basis for the refusal now asserted by the Applicant does not establish that the Tribunal acted unreasonably in not postponing its decision on the evidence before it, including her evidence to it. 

26. The Applicant also told the Court that it was important to her that the nomination be approved.  It is clear that the Tribunal appreciated the significance of the absence of an approved nomination. 

27. The Second Applicant suggested that the Tribunal did not understand that it was difficult for the Applicant to get an approved nomination position from a small business rather than from a large business.  This may be so, but it is not indicative of legal unreasonableness or other jurisdictional error on the part of the Tribunal.  There is also no evidence that this concern was raised with the Tribunal. 

28. The Applicant suggested that the Tribunal had “focused” on the fact that the new nomination application had been lodged the day before the hearing.  This is not apparent from the Tribunal reasons, although it is clear it understood when the nomination application was lodged.  There is no transcript of the Tribunal hearing before the Court.  This suggestion does not indicate an unreasonable exercise of its discretion. 

29. The issues raised by the Applicants in submissions do not go to show that the Tribunal’s decision in relation to whether to allow further time was exercised in a manner that was legally unreasonable.  The Tribunal recorded that it discussed with the Applicant whether it should adjourn and the matters that were discussed.  The Tribunal understood that, as the Applicant said to the Court, she understood that she needed a current approved nomination and also that she did not have one.  Implicit in this acknowledgment was an understanding that if there was not a current approved nomination at the time of decision, the visa application would be refused.  The Tribunal took this into account in its consideration of whether it should delay making its decision, but had regard to the particular circumstances of the case, in particular the Applicant’s evidence that the sponsor’s circumstances had not changed recently and the fact of the recent adverse Tribunal decision in relation to a nomination application by the Applicant’s sponsoring employer.  It has not been established that the Tribunal’s exercise of its discretion was legally unreasonable. 

30. Insofar as the Second Applicant appeared to suggest that the Tribunal ought to have been able to take into account how hard it is to get a nomination approval for a small business, this misunderstands the issue before the Tribunal.  It did not have a discretion as to whether or not to require the Applicant to satisfy the criterion that she was the subject of an approved nomination of an occupation that had not ceased.

31. Ground 1 and the related submissions do not establish jurisdictional error. 

32. Ground 2 is an assertion that the Tribunal erred “by misunderstanding the applicant’s evidence in respect of change of circumstances to improve prospect of success of Nomination”.  

33. The particulars to this ground do not identify any misunderstanding, but refer simply to paragraph 15 of the Tribunal decision as set out above.  

34. As indicated, in oral submissions the Applicant suggested that the Tribunal focused on the fact that the new nomination was lodged the day before the hearing.  This is not apparent from the Tribunal reasons for decision, which do not indicate or support any inference that the timing of the new nomination application was the reason the Tribunal decided not to postpone its decision.  The Tribunal understood from the Applicant that the new nomination application had been lodged the day before the hearing and took the existence of that nomination application into account.  Indeed, it was because the new nomination application had been lodged that the Tribunal considered whether it was appropriate to postpone its decision. 

35. Insofar as ground 2 is intended to amount to a contention that the Applicant gave evidence at the Tribunal hearing about whether there were changed circumstances for the sponsor other than the evidence referred to in the Tribunal reasons for decision, there is no evidentiary basis for such a contention.  No other evidence given at the Tribunal hearing was identified in the Applicants’ oral submissions when they were given an opportunity to elaborate on and explain ground 2.  There is no transcript of the Tribunal hearing in evidence, despite the fact that the Applicants were given the opportunity in directions made in April 2016 to file a transcript. 

1. Ground 2 and the associated submissions do not establish jurisdictional error.  It has not been established that the Tribunal misunderstood the Applicants’ evidence and hence in some way made a jurisdictional error.

2. As indicated, the First Applicant expressed concern as to the basis on which the nomination application was refused.  However the decision in issue in these proceedings is the Tribunal’s decision to affirm the decision not to grant the Applicants visas.  More generally, insofar as the submissions of the Second Applicant would seem to suggest that there might be some discretion on the part of the Court, merits review is not available in this court.  

3. As no jurisdictional error has been established, the application must be dismissed.

4. The Applicants have been unsuccessful.  The Minister seeks costs in the sum of $5,300, which is less than the amount provided as an indicative amount in the Schedule to the Federal Circuit Court Rules 2001 (Cth). The Applicant indicated an inability to pay such costs. However, while this may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs, I am not satisfied it is a reason for departing from the normal principle that unsuccessful applicants should meet the costs of the successful party. The amount sought is reasonable and appropriate in light of the nature of this and other similar matters. The costs should be paid by the adult Applicants.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  13 November 2017