Kamruzzaman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 2091

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kamruzzaman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2091   

File number(s):

SYG 1720 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

17 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Employer Nomination visa – whether arguable jurisdictional error – no arguable case for relief claimed – the application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth) ss 359A, 375A, 476.

Migration Regulations 1994 (Cth) cl 186.223(2)

Federal Circuit Court Rules 2001 (Cth) r 44.12

Number of paragraphs:

13

Date of hearing:

17 August 2021

Place:

Sydney

Solicitor for the Applicants:

In person.

Solicitor for the Respondents:

Ms J Strugnell, Minter Ellison.

ORDERS

SYG 1720 of 2019

BETWEEN:

MOHAMMAD KAMRUZZAMAN

First Applicant

ZOHARA AKTER

Second Applicant

TASNIA ZAMAN

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	17 AUGUST 2021

THE COURT ORDERS THAT:

1.The oral application for an adjournment is dismissed.

2.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3.The first and second applicant pay the first respondent’s costs fixed in the amount of $3, 737.00

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for 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”), dated 12 June 2019 not to grant the first applicant an Employer Nomination visa (“the Visa”).

   BACKGROUND

2. The applicants’ are citizens of Bangladesh.  The second applicant is the spouse of the first applicant and the third applicant is a child in respect of whom there has been made a Litigation Guardian Order. 

3. The applicants’ applied for the Visa on 26 June 2017.  On 8 March 2018, a delegate of the first respondent (“the delegate”), refused the grant of the visas on the basis that the applicants’ did not meet subclause 186.223(2) of the Migration Regulations 1994 (Cth) (“the Regulations”), because the applicants’ didn’t have an approved nomination. The applicant sought review on 13 March 2018. On 26 March 2019, the Tribunal sent the applicants’ a section 359A letter, inviting the applicants’ to comment on the refusal of the nominated position.

4. The applicants’ responded and attended a hearing before the Tribunal on 11 June 2019 to give evidence and present arguments. The Tribunal found that the applicants’ did not have an approved nomination and, accordingly, did not satisfy clause 186.223 of the Regulations and affirmed the delegate’s decision under review.

   BEFORE THE COURT

5. These proceedings were commenced on 9 July 2019 and fixed for a Show-Cause Hearing today. At the commencement of the hearing, the Court explained to the first applicant the nature of the Show-Cause Hearing. The first applicant explained that not having the nominated approval was not his fault. Unfortunately, whether the first applicant was at fault or not, the absence of an approved nomination meant that the first applicant could not succeed before the Tribunal, particularly in the circumstances of this case, where the applicant was sent a section 359A letter.

6. The first applicant then sought an adjournment, because he does not have a job and because he has children and because of the COVID 19 position.  The first applicant also subsequently made reference to not having a lawyer.  The adjournment was opposed by the first respondent.  The Court is satisfied that the first applicant was able to meaningfully participate in the hearing.  These proceedings were commenced on 9 July 2019.  If the first applicant was able to obtain legal representation, he would have done so. 

7. The Court is not satisfied that an adjournment will result in the applicant being represented.  The Court has also taken into account the want of merit in the substantive application.  There would be no utility in granting an adjournment.  The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice.  It is for these reasons that the Court dismissed the oral application for an adjournment.  Nothing said by the first applicant identified an arguable case of relevant error by the Tribunal.

   THE GROUNDS

8. The ground in the application is as follows:

   Ground One

   The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

   CONSIDERATION

9. Without particulars, Ground 1 is incapable of identifying an arguable error.  There is no relevant aspect of the applicants’ case that had been identified that the Tribunal failed to consider.  Further, in circumstances where the first applicant did not have an approved nomination, the application could not succeed before the Tribunal.  On the evidence before the Court, the Tribunal complied with its procedural fairness obligations under

   
   

   Division 5 of Part 5 of the Act, which is an exhaustive statement of the natural justice hearing rule (see; s 357A of the Act). 

10. On the evidence before the Court, the applicants’ were invited to a hearing and were invited to comment on the dispositive issue and, the adverse findings were logical and open on the available evidence before the Tribunal.  The Court also accepts the first respondent’s submission that given the absence of an approved nomination, the granting of relief would be futile. 

11. The Court is not satisfied that the application has raised an arguable case for the relief claimed.  

12. The Court is satisfied that this is an appropriate case in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

    CONCLUSION

13. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirteen (13) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 17 August 2021 and the parties were provided sealed copies of the Court’s orders.

Associate:

Dated: 8 October 2021