Jilani v Minister for Home Affairs

[2019] FCCA 1784

FEDERAL CIRCUIT COURT OF AUSTRALIA

JILANI v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1784

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of an employee nomination visa – no extant nomination – whether the visa applicant could substitute a new employer considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.359A

Migration Regulations 1994 (Cth)

Cases cited:

Singh v Minister for Immigration [2017] FCAFC 105

Applicant: GHULAM JILANI

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1779 of 2018

Judgment of: Judge Driver

Hearing date: 26 June 2019

Delivered at: Sydney

Delivered on: 26 June 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application filed on 27 June 2018 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1779 of 2018

GHULAM JILANI

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Jilani, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 June 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Jilani an employee nomination permanent visa.  Background facts relating to this matter are conveniently set out in submissions filed on behalf of the Minister on 22 March 2019. 

2. Mr Jilani is a male citizen of Pakistan who applied for an Employer Nomination (Subclass 186) visa in the Direct Entry steam on 9 May 2016.[1]  Mr Jilani was nominated by Australian Biz Exchange Pty Ltd (the sponsor).[2]  Mr Jilani’s wife was included in the application as a secondary applicant,[3] but is not a party to the present judicial review proceedings.

   [1] Court Book (CB) 1-37

   [2] CB 27

   [3] CB 3

3. On 20 June 2017, Mr Jilani was invited to comment on information that the nomination application submitted by the sponsor had been refused.[4] No response was received to that invitation.

   [4] CB 146-149

The delegate’s decision

1. On 25 July 2017, the delegate refused to grant the visa on the basis that clause 186.233(3) in Schedule 2 of the Migration Regulations 1994 (Regulations) was not satisfied. Relevantly, clause 186.233(3) required that the Minister had approved the nomination. The delegate found that the nomination lodged by the sponsor was refused by a delegate on 17 May 2017 and accordingly the criterion for the grant of the visa was not satisfied. As Mr Jilani did not meet the criteria for the grant of the visa, his wife was unable to meet clause 186.311(a).[5]

   [5] CB 150-160

The Tribunal

1. On 14 August 2017, Mr Jilani applied for review of the delegate’s decision.[6]

   [6] CB 161-162

2. By letter dated 29 March 2018, Mr Jilani was invited to attend a hearing before the Tribunal scheduled for 26 April 2018.[7]

   [7] CB 171-177

3. On 16 April 2018, Mr Jilani informed the Tribunal that: he and his wife had separated; she was not intending to attend the Tribunal hearing; and requested that she be removed from the application.[8]  The Tribunal responded on 17 April 2018 excusing Mr Jilani’s wife from attending the hearing but noted that she could not be withdrawn as a party without her consent.[9]

   [8] CB 178-179

   [9] CB 180-181

4. On 26 April 2018, Mr Jilani attended the scheduled hearing.[10]

   [10] CB 187-192

5. On 11 May 2018 Mr Jilani emailed the Tribunal stating that he was aware his sponsor’s application for review of the nomination refusal had been unsuccessful and queried whether it was possible to change employers as he had an offer from another company who was willing to sponsor him.[11]

   [11] CB 193

6. Also on 11 May 2018, Mr Jilani was invited to comment on adverse information pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act), namely that the Tribunal had affirmed the delegate’s decision not to approve the nomination in relation to Mr Jilani made by the sponsor. The letter noted that clause 187.233 required the person who employed Mr Jilani to be “the person who was the nominator in the application for approval and it is therefore not possible to obtain a different nominator”.[12]

   [12] CB 194-196

7. On 25 May 2018, Mr Jilani contacted the Tribunal by phone and stated that he knew the nomination application had been refused and he “doesn’t have anything to say”.[13]  He subsequently emailed the Tribunal indicating that he was aware the nomination review application was unsuccessful and was also aware of the requirements for his review application to be successful.[14]

   [13] CB 200

   [14] CB 197

The Tribunal decision

1. On 6 June 2018, the Tribunal affirmed the decision under review.

2. The Tribunal[15] identified that the issue in this case was whether Mr Jilani met clause 186.233.  Relevantly, clause 186.233 required that the position to which the application related be the subject of an application for approval of a nominated position under regulation 5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia) or under regulation 5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). It noted that the position must be the one that was the subject of the declaration that was required to be made as party of the current visa application.[16]

   [15] at CB 205, [10]

   [16] CB 205, [11]

3. The Tribunal considered Mr Jilani’s submissions but found he had not provided evidence of an approved nomination.[17]  The Tribunal found the refusal of the related nomination application by the sponsor was affirmed by the Tribunal on 8 May 2018 and this was the nomination that was the subject of the declaration when the visa application was lodged by Mr Jilani.

   [17] CB 205, [12]

4. Accordingly, the Tribunal found there was no nomination before the Tribunal which had been approved and clause 186.233 was not met.[18]

   [18] CB 205, [13]-[14]

5. The Tribunal found that as Mr Jilani had not satisfied the primary criteria for the grant of the visa, it followed that his wife also did not meet the criteria.[19]

   [19] CB 205, [16]

The present proceedings

1. These proceedings began with a show cause application filed on 27 June 2018.  Mr Jilani continues to rely upon that application.  The only applicant on that application is Mr Jilani.  There are two grounds advanced in that application:

   1. Even though the Tribunal refused the nomination it is arguable that the nomination should not be refused and the visa application is refused based on refusal of nomination.  The Tribunal erred in refusing visa application and failed to give me the opportunity to seek another approved sponsor or to lodge a fresh nomination by the same company.

   2. The Tribunal failed to invite me to attend another interview to argue my circumstances.

2. The application is supported by a short affidavit filed with it.  I also have before me the court book filed on 9 August 2018 and a second affidavit by Mr Jilani filed on 21 June 2019 to which are attached documents intended to show that Mr Jilani has available to him an alternative employment sponsor.

3. This matter came before me for a show cause hearing on 29 March 2019. It was apparent at that time that Mr Jilani’s essential concern was that he was not given the opportunity by the Tribunal to amend his application to substitute for the sponsor, who had not been approved, an alternative sponsor. It was apparent in argument that there was an anterior question of whether it was possible to amend a visa application of this class to substitute a new sponsor. With that in mind, I ordered, under rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), that the Minister show cause why relief should be granted in relation to the issue of whether Mr Jilani could, in respect of his class of visa, obtain an alternative sponsor.

4. The Minister filed further submissions directed at that issue on 19 June 2019.  The submissions were addressed orally by counsel for the Minister today.  The submissions draw upon the decision of Mortimer J of the Full Federal Court in Singh v Minister for Immigration.[20]  While the factual position in that case is not identical to the present, I accept that the visa criteria at issue in that case are materially the same as the visa criteria in this case.  I further accept that the decision in Singh is persuasive in relation to the issue raised in the show case application and that the Court should follow it.

   [20] [2017] FCAFC 105

5. It follows that I accept the submissions made by the Minister in response to the show cause order. 

6. The issue raised by the Court concerns a question of statutory construction.  The issue raised by the Court at the show cause hearing of this matter was whether Mr Jilani could have lodged an “amended” visa application relying on the sponsorship of a different employer. 

7. I accept that there is no ability, by reference either to the Migration Act or to the Regulations, for Mr Jilani to have done so. The requirements of clause186.233 cannot be met in circumstances where a visa applicant procures sponsorship from a new employer. The reason for this lies in the construction of the regulation itself, but is supported by reference to the broader visa scheme.

8. First, addressing the text of the regulation.  Regulation 186.233 provided that:

   (1)    The position to which the application relates is the position:

   (a) nominated in an application for approval that seeks to meet the requirements of:

   (i)     subparagraph 5.19(4)(h)(i); or

   (ii)    subregulation 5.19(2) as in force before 1 July 2012; and

   …

   (c) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

   (2) The person who will employ the applicant is the person who was the nominator in the application for approval.

   (3) The Minister has approved the nomination.

   (4) The nomination has not subsequently been withdrawn.

   (5) The position is still available to the applicant.

   (6) The application for the visa is made no more than 6 months after the Minister approved the nomination.

9. As revealed by Mortimer J in Singh, addressing a materially identical provision of the Regulations, the requirements of the regulation are drafted with respect to a particular “position”, being a particular job with a particular employer, that exists at a particular point in time, and in a particular set of factual circumstances.[21]  Equally, the Minister’s consideration under regulation 5.19 as to whether an employer’s nomination should be approved contemplates an assessment by the Minister at a particular point in time.[22]  The argument unsuccessfully advanced in Singh was that the same employer which had earlier been refused the nomination could make a fresh nomination application which, if approved, might result in the visa applicant meeting the requirements of clause 187.233.  Justice Mortimer (with whom the other members of the Court agreed) determined that the scheme was a ‘“once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate)”.[23] Her Honour opined that the scheme did not “contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant”. Singh applies by analogy to the present proceedings.

   [21] [88]

   [22] [89]

   [23] [90]

10. Secondly, paragraph 1114C(3)(d), located in Schedule 1 of the Regulations, relevantly provided that an applicant seeking to satisfy the primary criteria must declare in the application that the position to which the application relates is a position nominated under regulation 5.19. Paragraph 1114C(3)(d) refers to a declaration that the position to which the application relates is a position nominated under regulation 5.19. That is, the declaration required to be made in the visa application needs to relate to a specific position, and not simply a position in the abstract. Mr Jilani made such a declaration in his visa application.[24]  In circumstances where Mr Jilani purported to rely upon a nomination from a new employer, necessarily for a different position, he would then not be able to meet the requirement that the position to which his visa application related was that in relation to which he had made the declaration as required under paragraph 1114C(3)(d) of Schedule 1. The application for review before the Tribunal would necessarily fail.

    [24] CB 13

11. Thirdly, and for the reasons given above, any capacity of a visa applicant to, in effect, change employers in an effort to avoid the consequence of an adverse nomination decision would undermine the employer nomination visa scheme. There is no relevant capacity in the Migration Act or the Regulations for an applicant to “amend” his or her visa application, and no such capacity would be inferred in circumstances where the applicant’s intention is to avoid the adverse outcome on his visa application that necessarily followed the rejection by the Minister’s Department (and the Tribunal) of his sponsor’s nomination approval. An option that might be available to Mr Jilani would be to apply for a new visa on the basis of an identified position with an employer whose nomination for that position has been approved by the Minister’s Department.

12. It follows that the grounds of review advanced by Mr Jilani fall away because they were framed on the assumption, which has been found to be false, that it was possible for the Tribunal to give him the opportunity to amend his visa application to substitute a new sponsor.  To the extent that those grounds have any continuing relevance, I agree with the Minister’s submissions advanced at the time of the show cause hearing.

13. If, as he deposes, Mr Jilani has a new sponsor available who is willing to offer him employment, it would be open to him to lodge a fresh visa application and for the sponsor to do likewise.  Such a visa application would be considered in the ordinary course.  The outcome of the present case, however, is that Mr Jilani is unable to demonstrate that the decision of the Tribunal in his case is affected by any jurisdictional error.  The decision is, therefore, a privative clause decision.

14. I will order that the application filed on 27 June 2018 be dismissed.

15. In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $5,800.  Mr Jilani did not wish to be heard on the question of costs.

16. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

I certify that the preceding thiryt-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 2 July 2019