Mozharuddin v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 109
Federal Circuit and Family Court of Australia
(DIVISION 2)
Mozharuddin v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 109
File number(s): SYG 1225 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 17 February 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) visa – whether applicant denied procedural fairness – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 363, 360, 359A
Migration Regulations 1994
Cases cited: Hasan v Minister for Immigration and Border Protection [2016] FCCA 1049
Jurado v Minister for Immigration and Anor [2020] FCCA 2746
KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4
Minister for Immigration and Border Protection v Sandhu [2016] FCA 130
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 9 February 2023 Date of hearing: 9 February 2023 Place: Parramatta Counsel for the Applicants: The Applicant appeared in person. Solicitor for the Respondents: Ms Pieri ORDERS
SYG 1225 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMMED MAZHARUDDIN
First Applicant
MOHAMMED HAMZA MAZHAR
Second Applicant
NUSRATH SULTANA (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
17 fEBRUARY 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The First Applicant is to pay the First Respondents costs fixed in the sum of $5900.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
Introduction
The applicants are citizens of India. The first and third applicants are a married couple, with the second, fourth and fifth applicants being their children.
On 18 July 2018, the first applicant applied for a Regional Employer Nomination (Permanent) (Class RN) visa (“Regional Employer Visa”) with the second, third, fourth and fifth applicants named as secondary applicants. On 7 January 2021, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicants their Regional Employer visa.
The applicants sought review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”) on 15 January 2021. On 1 June 2021, the Tribunal affirmed the delegate’s decision not to grant the applicants their Regional Employer visas.
The applicants now seek judicial review of the Tribunal’s decision in this Court.
The administrative appeals tribunal decision
Paragraphs 1 to 7 of the Tribunal decision record provide the background to the applicants’ visa application. At paragraph 4, the Tribunal states that the first applicant (“the applicant”) sought a visa in the Direct Entry stream to work as a Web Developer.
Paragraphs 8 and 9 detail the relevant legislative requirements for the grant of a visa in the Direct Entry stream. Relevantly, cl 187.233 to Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) require that the position to which the visa application relates be the subject of an application for approval of a nomination.
At paragraph 10, the Tribunal notes that on 11 May 2021, it invited the applicants to comment on or respond to information. The particulars of this information are reproduced below:
· On 18 July 2018 BURCH GROVE GROUP PTY LTD (“the Nominator”) made an application listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa). The position was said to be Web Developer and nominated you. However, on 20 May 2020 a delegate of the Minister rejected the application.
· The nominator did not seek review of that decision with the AAT, this means that the nominator’s application for the nomination position has not been approved.
· This means that there is no approved nomination, and no review of that nomination refusal decision pending, that concerns you.
The Tribunal’s invitation to comment or respond explained that the above information was relevant to the review because without an approved nomination the applicant could not meet the required criterion for the grant of the Regional Employer visa.
The applicant responded to the above information on 19 May 2021 stating:
Mohammed Mazharuddin would like to request for an extension of the hearing date in relation to my application. I would like to bring it to your kind notice that I am going through a very difficult time currently. Recently we had a fourth child and my wife has still not recovered from the post-delivery issues. I am not able to concentrate or focus on any of my regular activities. Moreover, it is also a time where another member is added to our family and we spend most of the time looking after him. With all this happening in my family I can barely think of attending any hearing. Therefore, I would like to request to extend my hearing date to at least four to five months from now.
At paragraph 12, the Tribunal notes that the applicant provided a medical certificate dated 18 May 2021 which supported the request. The Tribunal considered this information but decided not to postpone the hearing.
The medical certificate was in the following terms from Dr Usmani of the Greenacre Medical Centre:
This letter is to confirm that Ms Nusrath Sultana, DOB (redacted) is currently post-partum 5 to 6 weeks and she is suffering from post-natal depression. She and her baby need close care and monitoring for the next 3 to 6 months. She has limited supports in Australia. Her husband Mr Mazharuddin Mohammed is the only care provider for her newborn child.
Thank you for your support with this issue.
Should you require further medical information in this regards to this matter, please don’t hesitate to contact me.
The Court notes that the medical certificate is not addressed to the Tribunal and does not specify or support the claims made by the applicant that he would not be able to concentrate or focus on the matters the subject of the Tribunal hearing and that he was as a result unfit to attend any tribunal hearing.
At paragraph 13, the Tribunal states that it discussed with the applicant the information put to him in its 11 May 2021 letter. The applicant told the Tribunal that he had worked with a new employer for two years now. The Tribunal informed the applicant that his review application could not succeed and advised him to consult with a migration agent or the Department regarding other applications that could be made.
At paragraph 14, the Tribunal found that the nomination had not been approved, that there being no approved nomination and no review of that nomination refusal decision pending. Accordingly, the applicant did not meet cl 187.233 to Schedule 2 of the Regulations.
At paragraph 15, the Tribunal notes that the applicant only sought to satisfy the criteria for the grant of a Subclass 187 visa in the Direct Entry stream and that no claims had been made in relation to any other visa stream. As the criteria for the grant of a visa in the Direct Entry stream had not been met, the Tribunal found that it had to affirm the decision under review.
Grounds of judicial review
The applicants’ grounds of judicial review are contained within an Initiating Application filed with the Court on 30 June 2021. The grounds are as follows as they appear in the application:
1. The decision made by the Tribunal is infected by error of law as I was denied an extension of the hearing date in relation to my application as it appears in page 3 of the decision of the Tribunal in which I said I am not able to concentrate or focus on any of my regular activities and I also medical certificate dated 18 May 2021 and the Tribunal decided not to postpone the hearing. This is a denial of natural justice and fairness.
2. I wanted extra time to confirm with my nominator Burchgrove Group Pty Ltd about the new nomination put by the company in support of my application and the Tribunal failed to give me an extension of time.
3. I will provide particulars when I receive a copy of my documents.
The Court has not received any further material by the applicants that may contain any particulars as mentioned in the above grounds.
The applicants’ submissions.
The first applicant appeared on behalf of himself and the other members of his family. The first applicant was unrepresented. The first applicant did not request the assistance of an interpreter and the Court was satisfied that the first applicants English-language skills were sufficient for him to participate in the hearing, present evidence and make arguments.
Prior to the hearing commencing, the Court ensured that the first applicant was in possession of a copy of the relevant Court books and a copy of the first respondent’s written submissions. The Court also ensured the first applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wished to.
At the commencement of the hearing, the Court explained it was undertaking judicial review not merits review and the difference between the two types of review. The Court also explained how the actual hearing would proceed.
Despite Court orders, no further documentation or written submissions were provided by the first applicant in support of the applicant’s case. The first applicant was invited to address the Court and make any oral submissions he wished to in support of his application. He told the Court he did not want to say anything.
Following the first respondent’s oral submissions, the first applicant was again asked if he wanted to say anything in support of his case. The first applicant replied “no”.
The first respondent’s submissions
The first respondent submitted that ground one asserts that the Tribunal erred in not granting the applicant an extension of time for the hearing and denied the applicant natural justice. It was submitted that the Tribunal’s discretionary power to adjourn a hearing pursuant to
s 363(1)(b) of the Migration Act 1958 (Cth) (“the Act”) must be exercised reasonably: (see; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [47]). In assessing the reasonableness of the adjournment request, it is necessary for the Tribunal to consider the applicant’s reasons for seeking an adjournment: (see; Minister for Immigration and Border Protection v Sandhu [2016] FCA 130 at [45]).
The first respondent submitted that the Tribunal advised the applicant on 20 May 2021 that it had “considered the material before it” and refused the adjournment request. The Tribunal’s decision record states that it considered the applicant’s previous correspondence and medical evidence, however it did not provide reasons for why it did not postpone the hearing.
It was submitted that the Tribunal reasonably exercised its discretion not to postpone the hearing as the matter concerned whether the applicant was the subject of an approved nomination and the evidence before it demonstrated that the Nominator’s application had been refused and no review had been sought for that decision. The applicant’s evidence as to his personal difficulties did not address the issue pertaining to the Nominator’s application refusal or whether the Nominator had or would seek to have the decision reviewed.
It was also submitted that the applicant was afforded sufficient opportunities to give evidence and present arguments regarding the issues before the Tribunal through a s 360(1) invitation to attend the hearing and a s 359A invitation to comment on or respond to relevant information: (see; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152).
The first respondent submitted that the second ground asserts that the applicant wanted more time to speak with the Nominator about a new nomination put forward by the company. It was submitted that a later nomination could not be relied upon to satisfy the criteria for the grant of the visa sought by the applicant: (see; Hasan v Minister for Immigration and Border Protection [2016] FCCA 1049 at [22]).
The applicant’s third ground states that he would provide particulars when he receives copies of his documents. It was submitted that the applicant has not provided any additional documents and that the ground does not articulate any jurisdictional error.
The first respondent also made submissions concerning futility. It was submitted that, even if there was jurisdictional error in the Tribunal’s decision, it would be futile to remit the matter for reconsideration and that the Court should exercise its desertion to not grant the relief sought by the applicant. The visa application sought by the application works as a ‘one off’ processes whereby the application is considered against a specific Nominator and a specific approval of that Nominator’s approval. If the Nominator’s application has been refused, it follows that the applicant cannot satisfy cl 187.223 of Schedule 2 to the Regulations as the applicant would not be the subject of an approved nomination: (see; Jurado v Minister for Immigration and Anor [2020] FCCA 2746).
CONSIDERATION
Ground one is a claim that the decision of the Tribunal not to adjourn the matter involved a jurisdictional error. The medical certificate has been set out in full above and whilst indicating that the first applicant’s spouse had medical issues which might have prevented her from attending the hearing and effectively participating in it, no such evidence was contained within the medical certificate as it relates to the first applicant.
It is well established that a medical certificate should identify the medical condition that would prevent the sufferer from participating effectively in a Court hearing. The medical certificate provided by the first applicant plainly does not address that critical question: (see; NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [8] per Lingren J).
The Court accepts that the power to refuse to adjourn the hearing involves a discretion pursuant to s 363(1)(b) of the Act that must be exercised reasonably. The Court agrees with the first respondent’s submission that, in assessing reasonableness, the Court must focus on the reasons of the Tribunal in failing to adjourn the hearing. The Court notes that the applicant was advised on 20 May 2021, that the Tribunal had “considered the material before it but was unable to make a favourable decision on this information alone” and the hearing would proceed on 1 June 2021 as planned. In the decision record, the Tribunal gave no reasons as to why it did not adjourn the hearing.
The Court notes that the first respondent submitted the Tribunal had reasonably exercised its discretion not postpone the hearing as the issue in the matter was whether or not the applicant was the subject of an approved nomination. The evidence before the Tribunal was that the application by the prospective employer nominator had been refused by the delegate and the nominator had not applied for a review of the decision by the Tribunal. While the applicant’s email and medical certificate provided evidence of the applicant’s personal difficulties, it did not provide any information regarding the nominator’s application. In effect, there was no material before the Tribunal which would indicate that even had an adjournment been allowed, for the lengthy period requested, of 4 to 5 months, that the first applicant would have been able to provide any material which might have resulted in a different outcome. The adjournment was, in effect, simply seeking to delay the inevitable.
In these circumstances, the Court is satisfied there was an evident and intelligible justification to the exercise of the power by the Tribunal not to adjourn the matter noting, it is for the repository of power and the repository alone to exercise the power: (see; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [48]). Ground one has no merit.
Ground two contends the applicant wanted extra time to confirm with his nominator about a new nomination to be put by the company in support of his application and that the Tribunal failed to give an extension of time. The first respondent notes that the applicant did not raise this as a reason for the adjournment request before the Tribunal. The Court agrees with the submission that in any event, a later nomination made in respect of the same position made by the same employer cannot be relied upon to meet the relevant Schedule 2 to the regulations criteria: (see; Hasan v Minister for Immigration and Border Protection [2016] FCCA 1049 at [22]). Given that the nomination by the nominator was refused by the Department of 20 May 2020, and the Tribunal hearing took place on 1 June 2021, it is difficult to see how any further time would have assisted or could have possibly assisted the applicant in rectifying what was a fatal flaw in his application, that being he did not have an approved employer nomination. Ground two has no merit.
Ground three is not a proper ground of review.
The Court also notes the submission of the first respondent that even if jurisdictional error exists (which is not conceded) it would be futile to remit the matter back to the tribunal as it would be bound to make the same decision. The Court notes the recent judgement of Rares J in KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4 (‘KC’), which deals with the issue of futility. Given the Court has found no jurisdictional error exists, the issue of futility does not arise for determination. Further the Court is satisfied that the factual matrix in KC is different to the one facing the Court in this matter. In KC there was another employer nomination in respect of the applicant that was before the Tribunal. That is not the factual situation in this matter, as there is no further employer nomination in existence. KC is thus not applicable.
As the second, third and fourth applicants rely upon the application of the first applicant being successful in order for their visas to be granted, their applications must also be dismissed.
CONCLUSION
In these circumstances, the Court has no option other than to dismiss the application with costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 17 February 2023
SCHEDULE OF PARTIES
SYG 1225 of 2021 Applicants
Fourth Applicant:
KHALED MAZHAR
Fifth Applicant:
AMENA MAZHAR
0
11
0