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

[2020] FCCA 2981

FEDERAL CIRCUIT COURT OF AUSTRALIA

Mian v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2981

File number(s):

SYG 3259 of 2019

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

5 November 2020

Catchwords:

MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Regional Employer Nomination (Permanent) (Class RN) visa  – whether the Tribunal failed to afford procedural fairness – whether Tribunal’s refusal to grant adjournment unreasonable – whether the Tribunal correctly applied the law – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), reg.5.19, Schedule 2, cl.187.233

Cases cited:

A to Z RPL Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2977

Number of paragraphs:

38

Date of hearing:

28 October 2020

Place:

Sydney

The Applicant:

Appeared in person, by telephone

Solicitor for the First Respondent:

Ms S Lloyd of HWL Ebsworth Lawyers, by telephone

ORDERS

SYG 3259 of 2019

BETWEEN:

MD ASLAM MIAN

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	5 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $5,600.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa (Regional Employer visa).

   BACKGROUND

2. To have been entitled to the grant of a Regional Employer visa the applicant had to satisfy the criteria contained in Subclass 187 of Schedule 2 to the Migration Regulations1994 (Cth) (Regulations). Relevant to the application before me are the requirements contained in cl.187.233 of Schedule 2. Those requirements include the following:

   (1)the position to which the application for a Regional Employer visa relates is, among other things, the position “nominated in an application for approval that seeks to meet the requirements of . . . subparagraph 5.19(4)(h)(ii)” of the Regulations, and “in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii)” of the Regulations;

   (2)the person who will employ the applicant is the person who made the nomination; and

   (3)the Minister has approved the nomination.

3. Subregulation 5.19(1) of the Regulations provides that a person (nominator) may apply to the Minister for approval of the nomination of a position in Australia. Subregulation 5.19(4) provides that the Minister must approve a nomination if the conditions stated in that subregulation are satisfied. One of the conditions is that identified in reg.5.19(4)(a)(ii) of the Regulations, which requires the Minister to be satisfied that the application for approval of a nomination identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

4. In his application for a Regional Employer visa lodged on 16 September 2017, the applicant stated that the nominated occupation was “sales representative”. In the section headed “Nomination details”, next to the words “Transaction Reference Number (TRN)”, there are letters and numbers. This is the reference the Department of Home Affairs (Department) assigned to an application A to Z RPL Pty Ltd (A to Z) lodged under reg.5.19 of Regulations for an employer nomination for a permanent position (Employer Nomination) in relation to the applicant.

5. By letter dated 21 February 2018 the delegate informed the applicant the nomination submitted by A to Z had been refused; and that meant the applicant’s application for a Regional Employer visa could not be approved. The letter invited the applicant to inform the delegate whether the applicant intended to withdraw his application. On 22 March 2018 the delegate refused to grant the Regional Employer visa because A to Z, being the nomination referred to in cl.187.233(1) of Schedule 2 to the Regulations, was refused by a delegate of the Minister.

6. On 6 April 2018 the applicant applied to the Tribunal for review of the delegate’s decision.

   BEFORE THE TRIBUNAL

7. By letter dated 3 October 2019 the Tribunal provided to the applicant particulars of information the Tribunal considered would be the reason or part of the reason for affirming the decision under review.[1] That information was that on 3 October 2019 the Tribunal affirmed a decision refusing the application by A to Z for approval of an appointment “in respect of this visa”. The Tribunal said this information was relevant to the review because it was an essential element for the grant of the Regional Employer visa that the nomination of the position must be approved. The letter invited the applicant to comment on or respond to the information.

   [1] CB89

8. On 17 October 2019 the applicant’s migration agent sent an email to the Tribunal stating that, “[g]iven that the nomination has been refused, the inevitable consequence of that refusal will be that the visa application cannot be approved”; but the applicant had instructed the agent that “he prefers to give oral evidence to the tribunal at the hearing”.[2] By letter dated 28 October 2019 the Tribunal invited the applicant to appear before the Tribunal on 15 November 2019 to give evidence and present arguments.[3] On 11 November 2019 the applicant, by his agent, sent an email to the Tribunal requesting the Tribunal adjourn the hearing because the applicant’s father had passed away on 8 November 2019.[4] By letter dated 11 November 2019 the Tribunal informed the applicant that the hearing that had been fixed for 15 November 2019 would proceed.[5] The Tribunal stated that the applicant may explain his circumstances and request an adjournment at the hearing. The Tribunal further said that, “[g]iven the circumstances where it is acknowledged the application cannot succeed, this will need to include any utility in adjourning the matter”.

   [2] CB91

   [3] CB95

   [4] CB101

   [5] CB95

9. According to the Tribunal’s reasons, the applicant appeared before the Tribunal on 15 November 2019. The Tribunal found that, although distressed about his circumstances, the applicant understood the nature of the proceeding, and he understood his application could not be successful in the absence of an approved nomination. The applicant again requested an adjournment of the hearing, but the Tribunal declined his request.

   TRIBUNAL’S REASONS

10. The Tribunal referred to the procedural history of the matter. That included the applicant’s appearing before it on 15 November 2019, his requesting an adjournment, and the Tribunal’s refusing to grant the adjournment.

11. The Tribunal set out its reasons for refusing to grant the adjournment. The Tribunal said it had been clear to the applicant “for some time that his application could not be successful”; and an adjournment would “not allow him to better present his case or to provide documents to establish his case and would be of no utility”. The Tribunal also noted that, although the applicant was emotional when discussing the death of his father, the Tribunal considered the applicant was able to articulate with some skill what he wished to say. The Tribunal also concluded it would not be appropriate to adjourn the matter until the associated nomination is heard in the Federal Circuit Court, because that might take years to be heard, and may be subject to further appeal. The Tribunal found this would not be consistent with the objects of the Tribunal conducting its procedures fairly, justly, informally, and quickly.

12. The Tribunal then considered cl.187.233 of Schedule 2 to the Regulations. The Tribunal noted that one of the criteria listed in that clause is that the person who will employ the person applying for the Regional Employer visa has been approved for nomination. The Tribunal found that A to Z, being the person who intended to employ the applicant, had applied for, but had been refused, nomination. For that reason, the Tribunal found the applicant cannot meet cl.187.233 to the Regulations.

13. The Tribunal recorded the reasons the applicant gave why he should remain in Australia. The Tribunal said that, while it had considerable sympathy for the applicant’s circumstances, it did not have a discretion to grant the Regional Employer visa. The Tribunal also noted that if the applicant considered his circumstances warrant the intervention of the Minister, he should seek the intervention of the Minister.

    GROUNDS OF APPLICATION

14. The applicant, who is not legally represented, relies on the grounds of application set out in the application. To a large extent the grounds mirror those contained in the application for remedies A to Z filed in this Court in relation to the Tribunal’s decision affirming a delegate’s refusal to grant A to Z employer nomination for a permanent position under reg.5.19 of the Regulations (A to Z proceeding). I heard that application at the same time I heard the applicant’s application.[6] The applicant did not make any submissions in relation to the grounds set out in the application.

    [6] A to Z RPL Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2977

15. Paragraphs 1, 2, and 3 of the grounds of application are background, and do not constitute grounds. The grounds on which the applicant relies commence at paragraph 4 of the grounds of application.

    Ground 4

16. Ground 4 claims the Tribunal (and Department of Home Affairs (Department)) failed to consider the applicant’s case in accordance with natural justice and procedural fairness. (A number of the paragraphs in the application include the Department in the claims that are made against the Tribunal. I will ignore these parts of the application because this Court does not have jurisdiction in relation to the decision of the delegate.) 

17. The ground is not particularised and, for that reason alone, fails. In any event, it is evident the Tribunal put to the applicant the very matter on which the Tribunal relied for affirming the delegate’s decision, namely, that A to Z had been refused nomination. Further, the Tribunal provided the applicant with an opportunity to apply for an adjournment and, for reasons that are cogent and intelligible, the Tribunal refused to grant the applicant an adjournment.

18. This ground, therefore, fails.

    Ground 5

19. The applicant claims the Tribunal failed to take into consideration cl.187.233(1) of Schedule 2 to the Regulations. The ground then sets out the text of cl.187.233 of Schedule 2 to the Regulations.

20. The Tribunal did consider cl.187.233. It was the applicant’s not being able to satisfy cl.187.233(3) (the “Minister has approved the nomination”) that led to the Tribunal affirming the delegate’s decision.

21. Ground 5 fails.

    Ground 6

22. Ground 6 claims the Tribunal failed to consider reg.5.19 of the Regulations having regard to A to Z’s business circumstances, the potential growth in the industry, and value for business; A to Z’s commitment to employ the applicant for two years; A to Z’s reliance on the applicant for that position and future growth; and “[o]ther relevant material”.

23. This ground repeats ground 6 of the grounds of application filed in the A to Z proceeding. I have held in that proceeding that ground 6 failed.[7] Ground 6, therefore, also fails.

    [7] A to Z RPL Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2977

    Ground 7

24. This ground claims the Tribunal denied the applicant procedural fairness and natural justice because it did not give the applicant an opportunity to properly consider his circumstances because on 5 November 2019 A to Z had applied to this Court for remedies in relation to the Tribunal’s decision affirming the decision not the grant A to Z nomination.

25. This paragraph appears to be directed to the Tribunal’s deciding not to adjourn the hearing before the Tribunal pending the determination by this Court of A to Z’s application for a remedy in relation to the Tribunal’s affirming a decision not to grant A to Z nomination. This ground should be understood as a claim that the Tribunal was unreasonable in not granting the applicant an adjournment pending the determination of A to Z’s application to this Court.

26. I am not satisfied the Tribunal’s decision was legally unreasonable. The Tribunal’s reasons for refusing to do so – the uncertain time it would take for the outcome of such application to be heard, and the principles by which the Tribunal was to determine applications for review – constituted an evident and intelligible justification for not granting the adjournment.

27. Even if, however, the Tribunal’s decision were legally unreasonable, as a matter of discretion I would not have granted any relief because A to Z’s application to this Court has failed.[8]

    [8] A to Z RPL Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2977

    Grounds 8 and 9

28. These grounds claim the Tribunal failed to determine the applicant’s application for review according to law, in taking a view of the Act and the Regulations that was unnecessarily limited and constricted, and which fitted the Tribunal member’s personal subjective view rather than the Tribunal taking a comprehensive view of the relevant law.

29. These grounds repeat the substance of grounds 8 and 9 of the application filed in the A to Z proceeding. They do not identify the view of the Act of Regulations on the basis of which it is claimed the Tribunal member determined the applicant’s application for review, or how such view was unduly narrow or constricted. There is nothing to support the contention that the Tribunal member applied her own personal view of the matter. The Tribunal member correctly identified the question that was before it, namely, whether because A to Z had not been granted nomination the applicant was unable to satisfy cl.187.233 of Schedule 2 to the Regulations.

30. Grounds 8 and 9 fail.

    Ground 10

31. This ground claims the Tribunal failed to give proper consideration to the facts; the Tribunal instead merely noted, and refused the applicant’s case without proper consideration. The ground further claims the Tribunal would have come to a different view had it properly considered the applicant’s case.

32. This repeats ground 10 of the grounds of application filed in A to Z proceeding. The ground does not identify the facts it is claimed Tribunal did not properly consider. For that reason alone, the ground fails. In any event, the Tribunal correctly identified the question that arose on the applicant’s application for review; and that is whether A to Z’s not having been notified meant that the applicant could not satisfy cl.187.233 of Schedule 2 to the Regulations.

    Grounds 11 and 13

33. These grounds claim the Tribunal did not afford the applicant procedural fairness, and the Tribunal did not give thorough consideration to the applicant’s case.

34. Being unparticularised, these grounds fail for that reason alone. In any event, as I have already found, here is nothing in the material before me that could arguably suggest the Tribunal failed to accord procedural fairness to the applicant, or that it acted unreasonably.

    Ground 12

35. This ground states a belief that the applicant would be eligible to be granted a Regional Employer visa because the applicant had worked in the nominated position, and there is no adverse information about “the Nominator”. This is an appeal to the merits of the applicant’s application for a Regional Employer visa, and the merits of A to Z’s application for an Employer Nomination. It does not disclose any jurisdictional error and, for that reason, ground 12 fails.

    Ground 14

36. This ground claims the Tribunal failed to weigh the presented evidence and apply the law at the time of the hearing. The ground does not identify the evidence the Tribunal did not weigh, or the law the Tribunal failed to apply. For that reason the ground fails. In any event, as I have already found, the Tribunal correctly identified the question it was required to determine, and there is no error in the manner in which it decided that question.

    CONCLUSION AND COSTS

37. The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to order that the application be dismissed.

38. The Minister submitted that costs should follow the event; and he submitted that costs should be set in the amount of $5,600. The respondent opposed my making an order for costs against him if the Minister were to succeed. The applicant said he did not have the capacity to meet a costs order; he had genuinely worked for A to Z; and he had been treated unfairly by the Australian immigration system. Even if these statements were true, they would not lead me not to apply the usual rule that costs should follow the event. I also propose to order, therefore, that the applicant pay the Minister’s costs set in the amount of $5,600.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       5 November 2020