Mohammed-Usman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 2085

FEDERAL CIRCUIT COURT OF AUSTRALIA

Mohammed-Usman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2085

File number(s):

SYG 2042 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

17 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Regional Employer Nomination (Subclass 187) Visa – where the applicants were victims of a migration fraud – where the applicants did not have an approved employer nomination – no arguable case of relevant error by the Tribunal raised – application dismissed under r 44.12 of the Federal Circuit Court Rules 2021 (Cth)

Legislation:

Migration Act 1958 (Cth) ss 359A, 359AA, 476

Migration Regulations 1994 (Cth) sch 2, cl 187.233

Federal Circuit Court Rules 2001 (Cth) r 44.12

Number of paragraphs:

40

Date of hearing:

17 August 2021

Place:

Sydney

Solicitor for the applicant:

Second applicant, in person

Solicitor for the respondent:

Ms J Strugnell, Minter Ellison

ORDERS

SYG2042 of 2019

BETWEEN:

MARIAM ABIOLA MOHAMMED-USMAN

First Applicant

ABDULRAHMAN KUNLE MOHAMMED

Second Applicant

AMMAR OMOTOSHO MOHAMMED (and another named in the Schedule)

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

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

REASONS FOR JUDGMENT

JUDGE STREET:

INTRODUCTION

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”). The application is in respect of an Administrative Appeals Tribunal (“the Tribunal”) decision made on 17 July 2019, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant’s Regional Employer Nomination (Subclass 187) Visa (“the Visa”).

   BACKGROUND

2. The applicants are citizens of Nigeria. The second applicant is the partner of the first applicant. The third and fourth applicants are children and members of the family unit in respect of whom a litigation guardian order was made on 27 September 2019. 

3. On 3 July 2018, the applicants applied for the Visa.

4. On 10 December 2018, the Department refused the application of the sponsoring nominator, being the sponsor Gleim Accounting Pty Ltd.

5. On 6 March 2019, the Department sent an email to the applicants, providing an invitation to comment regarding the refusal of the nomination application. 

6. On 5 April 2019, the delegate refused the grant of the Visa because the applicants were not the subject of an approved nomination in accordance with the essential criteria under cl 187.233 of sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).

   THE TRIBUNAL

7. On 18 April 2019, the applicants lodged an application for review. The applicants identified a particular migration agent as their authorised representative.

8. On 26 April 2019, the Tribunal sent a letter pursuant to s 359A of the Act to that representative, inviting comment and requesting information in relation to the want of an approved nomination. On 10 June 2019, the applicants’ representative notified the Tribunal of a change in contact details.

9. On 21 June 2019, the applicants were invited to attend a hearing before the Tribunal on 9 July 2019.

10. On 5 July 2019, the applicants’ authorised representatives notified the Tribunal that the applicants would be attending. The representative also provided a statement setting out the details in relation to a scam that the family was subjected to by a person called Vaibhav Patel, who was a Sydney migration agent. The statement requests that the applicants’ case be recommenced for ministerial intervention, and provided supporting documents relating to a complaint that had been made to ASIC and payments made under the scam.

11. Following that, on 9 July 2019, the applicants attended a hearing before the Tribunal.

12. On 18 July 2019, the Tribunal affirmed the decision of the delegate under review. In its reasons, the Tribunal identified having had regard to the written statement and supporting documents provided by the applicants’ representative on 5 July 2019. The Tribunal also received oral evidence, having regard to the applicants’ role, and that the applicants had been the victims of a migration fraud.

13. The Tribunal correctly identified that the issue in the present case was whether the applicants had an approved nomination as required by cl 187.233(3) of the Regulations. At the commencement of the hearing, the Tribunal provided the first applicant with a copy of her Visa application, the declarations in relation to the nomination, and the statement confirming the validity of the Visa application in relation to the corresponding nomination. The first applicant indicated her understanding that the nomination and Visa were related. Pursuant to s 359AA of the Act, the Tribunal identified the significance of the refusal of the nomination, and the consequential inability of the applicants to meet cl 187.233(3) of the Regulations.

14. The Tribunal found that the second, third and fourth applicants could not satisfy the secondary criteria.

15. The Tribunal then dealt with the request that had been made by the applicants’ migration agent for a ministerial intervention, which the Tribunal declined. The Tribunal acknowledged that the applicants were the subject of immigration fraud perpetrated by Australian worker Mr Patel, but concluded that the applicants’ unfortunate case did not fall within the ministerial guidelines for intervention.

    BEFORE THE COURT

16. On 9 August 2019, the applicants filed an application to this Court for relief. The matter was fixed for a show-cause hearing today, 17 August 2021.

17. At the commencement of the hearing, the Court explained to the applicants the nature of the hearing.

18. The second applicant contended that he had been the victim of a fraud and that there had been a fraud on the Tribunal. Unfortunately, the applicant completely misunderstands the nature of the fraud that was perpetrated. It is clear that the Tribunal understood and took into account the fraud in the context of the request for ministerial intervention. The fraud did not in any way incapacitate the Tribunal in its determination of the review. There was no fraud on the Tribunal within the meaning of the authorities, and the applicant’s reference to the scam does not identify any arguable case of relevant error by the Tribunal.

19. The applicant also made reference to what occurred before the delegate, and the impossibility of the applicants being able to provide an approved nomination in their circumstances. The inability of the applicants to provide the approved nomination, and the reasons why there was no approved nomination, do not engage with the critical criterion that the applicants had to have an approved nomination to succeed before the Tribunal. Reasons why the applicants did not have an approved nomination do not engage any power by the Tribunal to determine the matter on compassionate or discretionary grounds, and nor does this Court have any such power. The applicants’ submissions in relation to the absence of fault in relation to the want of the approved nomination does not identify any arguable case of relevant error. The applicants’ submissions otherwise invited impermissible merits review. 

    THE GROUNDS

20. The grounds in the originating application are as follows:

    Ground 1

    1.That the delegate of the Minister and/or Department of Home Affairs was erred for failure and or refusal to send the Notice of refusal directly to the applicants after the attention of the Department/delegate of the Minister was drawn to the applicant’s situation who have been victims of visa scam by unscrupulous agent by Freedom of Information dated 5^th of December 2018.

    Ground 2

    2.That the delegate of the Minister and/or Department of Home Affairs was erred by notice of refusal giving the applicants 21 days after the day the applicant is taken to have received the notice to make an application for review. The computation of time specified in the notice of refusal was ambiguous, because it was practically impossible for the applicants to determine when the notice was deemed to have been received when it was not first sent to the applicants directly thereby occasioned miscarriage of justice.

    Ground 3

    3.That the Administrative Appeal Tribunal (Tribunal) was erred by not considering the merit of the notice of refusal issued by the delegate of the Minister and/or Department before delving into proprietary or otherwise of the applicant’s application even though it admitted in her decision that the applicants were victims of visa fraud.

    Ground 4

    4.That the Administrative Appeal Tribunal (Tribunal) was erred when it refused and/or ignore the applicant’s prayer to enlarge the time and allow her to apply for subclass 485 Temporary Graduate Visa having completed her studies and satisfied the visa conditions as required.

    GROUND 1

21. In relation to Ground 1, as the Court has earlier identified, there was no fraud on the Tribunal.  The Tribunal was aware of the alleged fraud, which was adduced in evidence in the context of a request for ministerial intervention. It was contended that there had been a communication erroneously sent to the agent. The Tribunal found it had jurisdiction, and that the email was sent to the applicant.

22. There is no substance in the contention that the Tribunal erred in its finding that it had jurisdiction. In circumstances where the applicant did not have an approved nomination, the applicant could not succeed. 

23. No arguable case of relevant error is disclosed by Ground 1 of the application.

    GROUND 2

24. In relation to Ground 2, the applicants seek to take issue with the circumstances relating to the want of an approved nomination and the notification of the same. As the Court has already explained, the circumstances relating to the want of the approved nomination do not give rise to any arguable case of relevant error by the Tribunal. That is because the applicants had to have an approved nomination to succeed before the Tribunal. There is no substance in the assertions by the applicants of a miscarriage of justice.

25. The applicants did not have an approved nomination, and as the Tribunal had explained, they could not succeed in those circumstances. The Tribunal squarely raised with the applicants the want of an approved nomination at the hearing. On the face of the Tribunal’s reasons the Tribunal complied with s359AA during the hearing and explained the relevance of the refused nomination and the applicant elected to comment on the information at the hearing.

26. No arguable case of relevant relief is raised by Ground 2.

    GROUND 3

27. In relation to Ground 3, the applicants again misunderstand the role of the Tribunal in circumstances where there was no approved nomination. The Tribunal did not have to go into the circumstances in which the applicants alleged they were a victim of the fraud. This is because the fraud was not a fraud on the Tribunal, but one relevant to the request for ministerial intervention, which the Tribunal considered and was under no mandatory obligation to recommend.

28. No arguable case of jurisdictional error is disclosed by Ground 3.

    GROUND 4

29. In relation to Ground 4, this makes reference to the applicants’ request for the Tribunal to determine the matter on some sort of compassionate or discretionary ground. The Tribunal had no power to do so, nor does this Court.

30. No arguable case of relevant error is disclosed by Ground 4.

    APPLICANTS’ PARTICULARS

31. On 6 December 2019, the applicants also filed a statement purportedly in expansion of the Grounds.

32. Ground 1 referred to the proposition that the judgment is against the weight of the evidence. That patently invites impermissible merits review, and misunderstands the function of the Tribunal and the essential criteria that the applicant had to meet. No arguable case is raised by the alleged Ground 1 in the applicants’ particulars of the grounds of application.

33. The applicants’ particulars of Ground 2 refer again to the alleged fraud, which was not a fraud on the Tribunal. Further no error arises because of the alleged circumstances in relation to the refusal of the nomination being outside the applicants’ control. These submissions do not give rise to any arguable case of relevant error by the Tribunal. No arguable case of error is made out by the particulars of Ground 2 in the document dated 6 December 2019.

34. In relation to Ground 3, the applicants seek to take issue with the communication sent in respect of the notification of the delegate’s decision. The delegate’s decision was sent to the email address provided. The Tribunal found it had jurisdiction, and the Tribunal was correct to do so. No arguable case of relevant error is disclosed by Ground 3 in the document dated 6 December 2019.

35. In relation to Ground 4, the applicants again seek to refer to the merits, which fails to understand that there was no fraud on the Tribunal and that the fraud was raised before the Tribunal in the context of a request for ministerial intervention. No arguable case of relevant error is raised by Ground 4 of the document dated 6 December 2019.

36. Ground 5 refers to an alleged request for enlarging time in circumstances where the Tribunal had no power to make a favourable finding for the applicants in circumstances where there was no approved nomination. The applicant’s representative provided document to the Tribunal on 5 July 2019 and that the applicants wished to appear without representation. There is no evidence of any request for an extension of time before the Tribunal. No arguable case is disclosed by Ground 5 of the documentation filed on 6 December 2019.

    APPLICANTS’ WRITTEN SUBMISSIONS

37. The applicants also filed a further document of submissions on 16 August 2021. That document expands upon the same topics as identified earlier, and again, properly understood, seeks nothing more than impermissible merits review. The submissions expand upon the same propositions that have been advanced in relation to the fraud, and fail to understand that there was no fraud on the Tribunal. No arguable case of relevant error is raised in that regard.

38. The submissions also advance, again, circumstances relating to the applicants’ absence of control in relation to the approved nomination that does not identify any arguable jurisdictional error. Further, this is a case where the Tribunal found it had jurisdiction and the applicant was notified of the delegate’s decision the subject of these proceedings. The submissions are otherwise, in substance, an invitation to impermissible merits review and identify no arguable case of relevant error.

39. The Court is not satisfied that the originating application raises an arguable case for the relief claimed. The Court is satisfied this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules2001 (Cth).

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

I certify that the preceding forty (40) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 17 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       22 September 2021

SCHEDULE OF PARTIES

SYG 2042 of 2019
Applicants
Fourth Applicant:	FAIZAH ENIOLA MOHAMMED