Kamal v Minister for Immigration
[2019] FCCA 2845
•4 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAMAL & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2845 |
| Catchwords: MIGRATION – Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visas – decision of the Administrative Appeals Tribunal – where the applicants were not the subject of an approved nomination – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), pt.187, cl.187.233 of sch.2 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 Singh v Minister for Immigration & Border Protection (2017) 253 FCR 267 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 |
| First Applicant: | MUHAMMAD ASIM KAMAL |
| Second Applicant: | ANZAH ASIM KAMAL |
| Third Applicant: | ANUM ASIM |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 152 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 4 October 2019 |
| Date of Last Submission: | 4 October 2019 |
| Delivered at: | Perth |
| Delivered on: | 4 October 2019 |
REPRESENTATION
| Applicants: | The first applicant appeared in person and on behalf of the second applicant and third applicant |
| Counsel for the First Respondent: | Ms S Anicic |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
The first applicant and third applicant pay the first respondent’s costs fixed in the sum of $4,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 152 of 2019
| MUHAMMAD ASIM KAMAL |
First Applicant
| ANZAH ASIM KAMAL |
Second Applicant
| ANUM ASIM |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex-tempore; Revised from transcript)
Introduction
By application filed in this Court on 24 April 2019, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 2 April 2019.
The Tribunal’s decision affirmed a decision of the first respondent (the “Minister”) not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visas (the “visa”).
The application is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain relief from this Court, the applicants must satisfy the Court the Tribunal has fallen into a jurisdictional error.
The applicants appeared without legal assistance in this court on 4 October 2019. The first applicant appeared on behalf of the second applicant and third applicant. The Minister was represented by Ms Anicic.
The Court had before it the applicants’ application for judicial review, a Court Book (“CB”) numbering 109 pages (which the Court marked as Exhibit 1) and a detailed outline of written submissions filed by the Minister on 26 September 2019. The first applicant appeared with a copy of the Court Book and a copy of the Minister’s written submissions.
Adjournment Application
Before proceeding, the Court notes that, on the day of the hearing, the first applicant requested additional time so that he could seek a new sponsorship and get legal advice.
While the Court is sympathetic to the first applicant’s concerns, the Court cannot assist him in relation to his desire to get a new employment sponsorship. Even if a new sponsorship were obtained, that would have no bearing on the issues currently before the Court. A new sponsorship would have no bearing on the Tribunal’s decision – the subject of this review.
In relation to the request for time within which to find legal assistance, the Court is satisfied that it is not appropriate in the circumstances of this case to grant an adjournment for the purposes of seeking legal advice. This matter has been on foot for a considerable amount of time. There are considerable delays in this Court. If this matter were adjourned on the day it was to proceed, it might not be re-listed for a new hearing for 12 to 18 months. Importantly, the Court is satisfied that the applicants have had ample time within which to seek legal assistance.
Background
The Minister’s submissions summarise the background relevant to this matter at [4]-[8]. The Court has cross-checked all the references in the Minister’s submissions with the Court Book and is satisfied that this summary is accurate. The Court adopts the summary provided as its own. With some minor additions, it provides as follows.
The first applicant is a citizen of Pakistan who first arrived in Australia on 14 January 2010 on a Student (Subclass 572) visa (CB 1, 67 and 86). The first applicant subsequently held further Student (Subclass 572) visas and a Temporary Work (Skilled) (Subclass 457) visa (CB 64-66). The second applicant is his daughter. The third applicant is his wife (CB 3-5).
On 15 June 2016, the applicants applied for the visas (CB 4-16). The applicants were assisted by a migration agent. The first applicant was nominated by Proficient Engineering and Maintenance Services Pty Ltd (the sponsor) to work in the nominated position of Mechanical Engineering Draftsperson (CB 10 and 30).
On 1 September 2016, the applicants’ migration agent advised the Minister’s department that he no longer acted for the applicants (CB 20). On 1 September 2016, the Minister’s department wrote to the first applicant indicating that a check had been made at the first applicant’s nominated place of work and it was found that the premises were vacant (CB 21-22). It appears the first applicant indicated in a conversation to the Department that he had not worked for the nominator for almost four months and the company (his sponsor) appeared to have been wound up. The applicants were invited to withdraw their visa application, or to respond to the email within seven days. No response was received.
On 27 September 2016, a Ministerial delegate refused to grant the applicants the visas (CB 29-33). This decision was made on the basis that the first applicant did not satisfy cl.187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Regulations”) as he was not nominated by an approved sponsor.
On 4 October 2016 the applicants applied for review of the delegate’s decision by the Tribunal (CB 52-54).
On 5 December 2018, the Tribunal sent a letter to the applicant requesting information. Specifically, the letter provided:
Information before us suggests that the nomination for the position identified in your visa application was not approved, and that the decision to refuse the nomination is not the subject of an application for review. If the nomination for the position identified in your visa application was refused and there is no pending review of the decision to refuse the nomination, the decision to refuse to grant you a Subclass 187 visa must be affirmed. Lodging a new nomination application will not enable you to meet the criteria for the visa. However, this is a matter for the presiding Member to determine.
If the position identified in your visa application is the subject of an approved nomination, or there is a pending application for review of a decision to refuse the nomination, please provide us with evidence about this.
(CB 60)
The first applicant responded on 15 December 2018. Relevantly, he stated:
I have no idea about the nomination Approval for RSMS Visa Purpose. Nomination Approval Application was lodged by the company who was sponsoring me at that time, through Migration Agent, Venkat Devarapalli at Swan Migration. He Also lodged my visa application too.
I was never told by my Sponsor or by Migration agent regarding the status of Nomination Approval Application Status. I Lodged my visa application on the advice given by Company`s migration agent and owner of the company who was sponsoring me.
After your email, I tried to Contact the migration agent to get any details about Nomination approval Application. I sent him an email and called him several times but still, there is no reply from him.
So, till now I have no information regarding Nomination approval whether it was approved or not?
(CB 62)
On 25 January 2019, the applicants were invited to attend a hearing before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review (CB 70-73). On 28 March 2019, the first applicant appeared before the Tribunal (CB 81-85).
On 2 April 2019, the Tribunal affirmed the decision of the delegate to not grant the applicants the visa (CB 102-105).
Tribunal’s Decision
The Tribunal’s decision is short. Having outlined the factual background and summarised the relevant legislative provisions, the Tribunal considered the first applicant’s circumstances. The pivotal parts of the Tribunal’s decision are found at [11]-[16]. Those paragraphs provide:
11. The Tribunal provided information to the applicant pursuant to section 359AA of the Act giving clear particulars of the information which would be the reason or part of the reason for affirming the decision under review. The Tribunal advised that the nomination application lodged by the nominator which was refused on 27 September 2016 was not subject to an application for review within the Tribunal. The applicant advised the Tribunal that he was aware of this fact.
12. The applicant explained his disappointment with his previous employer. He said he was not paid his superannuation entitlements and the company had also owed him money in wages for seven months work. The Tribunal is unable to verify the accuracy of this evidence.
13. The applicant further explained that his wife is suffering mental distress and he has two children who are born in Australia. He said he has lived here since 2010 and is very upset with his visa situation.
14. Whilst the Tribunal is sympathetic to the applicant’s situation, based on the evidence before it the Tribunal finds that the nomination mentioned in subclause 187.233 lodged by Proficient Engineering and Maintenance Pty Ltd has not been approved at the time of the Tribunal’s decision. As a result the Tribunal finds that the applicant does not meet the requirements of clause 187.233 at the time of its decision.
15. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.
16. The Tribunal must also affirm the decision not to grant the second and third named applicants a subclass 187 visa as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 187 visa and there is no evidence that they meet the primary visa criteria for this subclass in their own right.
Proceedings in this Court
The applicant’s judicial review application contained 10 “grounds” of review, as follows:
1. I applied for a Regional Sponsored Migration Scheme (subclass 187) visa in the Direct Entry stream on 15/6/2016 in relation to an appointment of Mechanical Engineering Draftsperson ANZSCO 312511.
2. The Department of Home Affairs (the Department) assessed my visa application under the Temporary Residence Transition stream. Under regulation 187.223 the position to which a visa application relates must have been nominated and approved under subregulation 5.19(3).
3. The case officer alleged that I did not satisfy that my visa application meets regulation 187.223. Since clause 187.242 was not satisfied, therefore, a criterion for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa in the Agreement stream was not satisfied.
4. The delegate refused to grant the visas as the Department of Home Affairs alleged that I did not meet cl.187.233 of Schedule 2 of the Migration Regulations because the nomination lodged by the nominator was refused by the delegate.
5. I wish to submit that I was a genuine applicant as I have relevant qualifications and work experience. However, the Department of Home Affairs and the Administrative Appeals Tribunal failed to take into consideration the relevant circumstances of my case.
6. I submit that the Administrative Appeals Tribunal misconstrued or misapplied the applicable law or otherwise failed to ask itself the right questions.
7. The Administrative Appeals Tribunal erred in law and thereby fell into jurisdictional error when it did not consider relevant information as required by law.
8. I further say that the Administrative Appeals Tribunal fell into jurisdictional error as its decision was unreasonable in all the circumstances of the case.
9. Therefore, I request that the Administrative Appeals Tribunal’s decision must be quashed.
10. If you need more information, please do not hesitate to contact me.
The applicants were given an opportunity by a Registrar of this Court to file any amended application, affidavit evidence and an outline of submissions. Unfortunately, no further materials were received by the Court.
Noting recent remarks of the Federal Court (in a non-protection visa context in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]) that unrepresented applicants should be offered an opportunity to explain orally their grounds of review, and any other matters they take issue with in the Tribunal’s decision, the Court asked the applicants, through the first applicant, to explain what they thought the Tribunal “did wrong”.
The Court first explained the types of errors the Court looks for when determining if the Tribunal has made a “jurisdictional error”. It was explained that, for migration decisions of this sort, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]-[17]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visa they now seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against that background, the first applicant made oral submissions. Unfortunately, the first applicant’s oral submissions did not assist the applicants in relation to the issue of jurisdictional error. Generally, the first applicant highlighted concerns of the sort that he raised in his grounds of review. He stressed that he had been poorly treated by his first employer and poorly treated by his migration agent.
The applicant did reference a “number” at the bottom of various pages in the Court Book. Unfortunately, he could explain to the Court “legal issue” or error he was highlighting. If what the applicant was referring to were references to Public Interest Criterion 4014, that is a condition imposed on his Bridging Visa which, relevantly, is not under review in this Court and was not of any relevance to the Tribunal.
Insofar as any other oral submissions relate to the grounds of review, these are discussed below.
Consideration
Grounds 1-4
1. I applied for a Regional Sponsored Migration Scheme (subclass 187) visa in the Direct Entry stream on 15/6/2016 in relation to an appointment of Mechanical Engineering Draftsperson ANZSCO 312511.
2. The Department of Home Affairs (the Department) assessed my visa application under the Temporary Residence Transition stream. Under regulation 187.223 the position to which a visa application relates must have been nominated and approved under subregulation 5.19(3).
3. The case officer alleged that I did not satisfy that my visa application meets regulation 187.223. Since clause 187.242 was not satisfied, therefore, a criterion for the grant of a Regional Sponsored Migration Scheme ( subclass 187) visa in the Agreement stream was not satisfied.
4. The delegate refused to grant the visas as the Department of Home Affairs alleged that I did not meet cl.187.233 of Schedule 2 of the Migration Regulations because the nomination lodged by the nominator was refused by the delegate.
The Minister submits that grounds 1 to 4 merely recount factual matters and do not identify any jurisdictional error. The Court agrees.
For finality, the Court makes the following observations;
a)to the extent the first applicant is contending that there are matters in the delegate’s decision that he takes issue with, the Court does not have jurisdiction in respect of the delegate’s decision: s.476(4) of the Act;
b)to the extent the that the first applicant is referring to the “Temporary Residence Transition Stream”, it is true that the delegate did assess the applicants against this stream (CB 30-31). It did so after it had found that the applicants did not meet the requirement of the Direct Entry Stream. There is no error in it having done so; and
c)even if the delegate had erred in assessing the applicants against both streams (noting, however, that the Court is not satisfied that there was any error), any defect in the delegate’s decision was, in any event, cured by the Tribunal’s decision: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
Grounds 1-4, accordingly, fail.
Ground 5
5. I wish to submit that I was a genuine applicant as I have relevant qualifications and work experience. However, the Department of Home Affairs and the Administrative Appeals Tribunal failed to take into consideration the relevant circumstances of my case.
In relation to ground 5, the Court has no reason to doubt that the first applicant was “genuine” and that he had the “relevant qualifications and work experience”. Indeed, it does not appear the Tribunal had any reason to doubt his sincerity.
However, the mandatory relevant considerations for the Tribunal were those provided in pt.187 of sch.2 of the Regulations. Those considerations needed to be satisfied. If the applicants did not meet one of those criteria, the Tribunal was obliged to affirm the delegate’s decision.
Here, the Tribunal correctly identified that the issue before it was whether the first applicant met cl.187.233. This required the Tribunal to consider whether the position which he had identified (as a Mechanical Engineering Draftsperson) had, in fact, been approved. On the materials before the Tribunal, and without dispute from the first applicant (who was unaware of the status of the nomination) the Tribunal found that the nomination had not been approved and, as such, the first applicant did not meet the criterion and could not be granted the visa.
Once it had been determined that the first applicant was not the subject of an approved nomination, the “circumstances” of the applicants’ case were of no assistance to the Tribunal. The Tribunal took into account all that was necessary for it to be satisfied that the applicants did not meet one of the relevant criteria. In the circumstances, it was obliged to affirm the delegate’s decision.
Further, the Tribunal directly acknowledged the “circumstances” the first applicant had explained and had asked the Tribunal to consider (at [12]-[13]). The Tribunal ultimately concluded that, while sympathetic, the circumstances outlined were not relevant to determining if the applicant met the relevant criteria.
There is no error in this regard. The Tribunal took into account all the relevant considerations that it was required to in order to fulfil the statutory task.
Ground 5, accordingly, is dismissed.
Ground 6
6. I submit that the Administrative Appeals Tribunal misconstrued or misapplied the applicable law or otherwise failed to ask itself the right questions.
Here, the Court observes as follows:
a)the Tribunal correctly identified and extracted the relevant legislative provisions of the correct visa class that it was required to apply;
b)the Tribunal asked itself the correct question, namely whether the applicants met the criterion for the grant of the visa;
c)the Tribunal further particularised that the specific question (or issue) in this case was whether the applicants were the subject of an approved nomination as required in cl.187.233; and
d)for the reasons provided above in relation to ground 5, the Tribunal correctly applied the criterion to the evidence before it to come to the conclusion that as the applicants were not the subject of an approved nomination, they could not meet cl.187.233(3) and the visa thus had to be refused.
Having found that the applicants failed to satisfy one of the primary criterion, the Tribunal was obliged to refuse the visa. There was no discretion for the Tribunal to find otherwise.
Ground 6, accordingly, is dismissed.
Ground 7
7. The Administrative Appeals Tribunal erred in law and thereby fell into jurisdictional error when it did not consider relevant information as required by law.
In the absence of the first applicant identifying what information the Tribunal was required by law to consider and did not, it is difficult for the Court to determine what, precisely, the applicants are alleging here.
For the reasons already explained in relation to ground 5, the Court is satisfied that the Tribunal took into account all of the relevant considerations and information it was required to consider in order to satisfy itself that the visa had to be refused.
It is arguable that the first applicant is suggesting that the Tribunal overlooked the response to the request for information and the first applicant’s evidence of his personal circumstances and how his sponsor had treated him.
The Tribunal took into account the applicants’ response to the request for information (at [11]). Relevantly, that information formed the basis of the refusal.
Once it was determined the applicants did not meet cl.187.233(3), which the applicants did not contest otherwise and it was apparent from the response to the request for information was correct, the Tribunal was not required to go any further to consider the circumstances and determine if it was true how the sponsor had acted as it was simply the case that he could not meet cl.187.233(3).
Ground 7, accordingly, is dismissed.
Ground 8
8. I further say that the Administrative Appeals Tribunal fell into jurisdictional error as its decision was unreasonable in all the circumstances of the case.
In relation to ground 8, the threshold for unreasonableness cannot be met in the circumstances of this case as the decision the Tribunal came to was the only decision that was open to it once the first applicant stated it was correct that the nomination application had been refused and it was not the subject of an application for review.
To the extent that the applicants believe it was unreasonable for the Tribunal to refuse the visa given the first applicant’s submissions that the employer had treated him poorly, there was no discretion for the Tribunal to waive the criterion that the applicants had to be subject to an approved nomination. As noted, the only decision the Tribunal could come to was to refuse the visa.
Ground 8, accordingly, also fails.
Grounds 9 and 10
Grounds 9 and 10, even at their highest, are not grounds of review.
Ground 9 is, in effect, a pleading for relief, which the Court is not satisfied is warranted in the circumstances as the applicants have failed to establish that the Tribunal’s decision is impugned with jurisdictional error.
In any event, even if there was error the Court would be inclined to refuse the relief the applicants seek in “ground 9” on the basis of futility.
As the Minister submits, in circumstances where the nomination decision was not the subject of an application for review with the Tribunal and noting that the applicants cannot rely on a fresh nomination application (rather only that which was identified in the visa application), any remitter would be bound to fail: Singh v Minister for Immigration & Border Protection (2017) 253 FCR 267.
Ground 9 and 10, accordingly fail.
Conclusion
The first applicant indicated to the Court today that his sponsor and his migration agent had treated him poorly. The Court is, of course, sympathetic to the concerns raised by the applicant in this regard.
To the extent, however, that the applicant is aggrieved by underpayments from his sponsor, the Court cannot (regrettably) assist him. That concern is not relevant to an application for judicial review.
To the extent that the applicant feels aggrieved by the actions of his migration agent (who also appears to have assisted the relevant sponsor), the applicant did not allege fraud on the part of his migration agent. However, it appears the migration agent may have failed to provide proper assistance. In those circumstances, the first applicant is directed to Office of the Migration Agents Registration Authority.
The Court is not satisfied that the application for judicial review has identified any contact the jurisdictional error in the Tribunal’s decision. The Court is otherwise satisfied there is no error overall and, in any event, it would be futile to grant the applicants the relief they seek in the circumstances of this case.
Accordingly, the application for judicial review must be dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 16 October 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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