Munshi v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 894
Federal Circuit and Family Court of Australia
(DIVISION 1)
Munshi v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 894
File number(s): SYG 1466 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 28 October 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Subclass 186 visa refusal – no approved nomination – whether jurisdictional error is made out – no jurisdictional error made out – application is dismissed. Legislation: Migration Act 1958 (Cth) ss 65
Migration Regulations 1994 (Cth) Schedule 2 Part 186 cl 186.223
Cases cited: Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
SZYBR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 26 October 2022 Date of hearing: 26 October 2022 Place: Sydney Counsel for the Applicants: The First Applicant appeared in person. Solicitor for the Respondents: Ms Wilford appeared in person. ORDERS
SYG 1466 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MUHAMMAD SHAFIQUL ISLAM MUNSHI
First Applicant
ISRAT JAHAN NIPA
Second Applicant
SAFAYET MANAN SAYFI (and another 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:
28 October 2022
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 $5400.00.
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 Bangladesh. On 30 June 2017, the first applicant applied for Employer Nomination (Permanent) (Class EN) visa, under s 65 of the Migration Act 1958 (Cth) (“the Act”). At that time, the Class EN, contained one subclass, which was the Subclass 186 (Employer Nomination Scheme). The second third and fourth applicants were included in the application as part of a family unit being the first applicant’s wife and children.
On 28 June 2018, a delegate of the Minister for Home Affairs (“the delegate”) refused to grant the applicant Employer Nomination (Permanent) (Class EN) visas, because the applicant did not meet cl 186. 223 (2) of Schedule 2 of the Regulations, because the first applicant was not the subject of an approved nomination.
In a decision dated 28 June 2021, the Administrative Appeals Tribunal (“the Tribunal”) affirmed the delegate’s decision not to grant the applicants their Employer Nomination (Permanent) (Class EN) visas.
The applicants now seek judicial review of the Tribunal’s decision in this Court.
ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The decision record begins from paragraph 1 to 13 by outlining the procedural background of the applicants’ visa application. The Court notes that the Tribunal wrote to the applicants on 19 May 2021 inviting them to comment on information that the employer sponsor’s application for review to the Tribunal had been dismissed as the Tribunal found it had no jurisdiction. No response was received to that letter by the stipulated time. Accordingly, the applicants lost their right to a face to face hearing. The Tribunal proceeded to consider the matter on the information that was then before it
The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The primary criteria must be satisfied by at least one applicant. Any other members of the family unit who are applicants for the visa, only need to satisfy the secondary criteria. Applicants who seek to satisfy the primary criteria, must meet the “Common Criteria”, as well as the criteria of one of three alternative visa streams, which are: the Temporary Residence Transition stream, the Direct Entry stream or the Labour Agreement Stream.
In this case, the first applicant was seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Café’ or Restaurant Manager with M & N (Aus) Pty Ltd.
The delegate refused to grant the visas because the applicant did not meet cl 186.233(3) of Schedule 2 to the Regulations, because there was no approved nomination.
At paragraph 14 and onwards of the decision record, the Tribunal considers the applicants claims and evidence.
At paragraph 17-18 of the Tribunal decision record, it found that cl 186.223 of the Regulations was not met, as there was no approved employer nomination.
Accordingly at paragraph 21 of the decision record, the Tribunal affirmed the delegates decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
GROUNDS OF JUDICIAL REVIEW
The applicants rely on two grounds of judicial review. The grounds of judicial review are contained within an Initiating Application filed with the Court on 28 July 2021. The grounds are as follows verbatim:
Ground One:
The Administrative Appeal Tribunal has failed to apply the correct test pursuant to clause 186.223 of the Migration Regulation 1994 (Cth).
Particulars:
In dealing with the applicant's claim under clause 186.223 of the Migration Regulation 1994, the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under the provision.
Ground Two:
Abondoned.
THE APPLICANTS SUBMISSIONS
The first applicant appeared before the Court unrepresented. The first applicant appeared on behalf of all the applicants. The first applicant did not require an Interpreter. The Court was satisfied that the applicant had sufficient English language skills to effectively participate in the hearing. Prior to the hearing commencing, the Court ensured that the first applicant was in possession of a copy of the relevant Court Books and that a copy of the first respondent’s submissions had been served upon him. The Court also ensured that the first applicant had access to a pen and paper to make notes should he wish to during the course of the hearing.
At the commencement of the hearing, the Court explained was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the process by which the hearing would be undertaken.
The applicants filed written submissions on 12 October 2022. The first applicant states that he arrived in Australia on 17 March 2007 as the holder of a Student visa to study business management and later hospitality management. In around 2013, he applied and was granted the subclass 457 work Visa with M & N Pty Ltd in King’s Cross New South Wales. In around 2017, the first applicant applied for a subclass 186 employer-sponsored visa.
In around 2017, the first applicant states his employer sold the business to a different owner without advising the applicant of a manner in which he could take the necessary step to change his employer. It was after the business was sold, that the applicant’s subclass 186 visa was refused.
The first applicant then goes on to state as follows;
On principle, I agree that the nomination has been unsuccessful, but I submit that I would have not applied for my visa if I was aware that the business is likely to be sold or closed down. It is unfortunately, the case that my nominator chose a path which is severely adverse to my circumstances. I have sincerely worked for the sponsor between 2013 to 2018 and this is what I have received.
I take that the sponsor should have an obligation to advise me about change of the circumstances and notify the Department the same time it was not the case in my application
I am therefore severely disadvantaged.
The first applicant told the Court that he was aware of the difficulties in his matter due to the lack of an approved employer sponsor. He was looking for other opportunities to either be sponsored or obtain a different class of visa.
CONSIDERATION
In relation to ground one, it was submitted by the first respondent that the Tribunal correctly identified and applied the criteria under cl 186.223 of the Regulations. Namely, it identified the critical issue before was whether the first applicant was the subject of an approved nomination for the purposes of cl 186.223 of the Regulations and set out the relevant criterion both in its decision and attachment A to its decision.
In circumstances where there was no approved nomination and occupation relating to the first applicant as required by cl 186.223(2) of the Regulations, the Tribunal was correct to hold that the requirements for the grant of the visa had not been met and that, in so doing, there was no other decision available to the Tribunal to make. The Court agrees with that submission. The requirements under cl 186.223 of the Regulations are cumulative. A failure to meet any one of the criteria results in the requirements for the grant of the visa sought not being met. In this case, there was an absolute requirement for the first applicant to have an employer sponsor. He did not. The Tribunal was correct in these circumstances to affirm the decision under review. No jurisdictional error is apparent in the manner in which the Tribunal went about its decision-making. Ground one has no merit.
The Court also notes the submission of the first respondent that, even if the first applicant can demonstrate jurisdictional error in the Tribunal’s reasons or processes, (which is not conceded) it would be futile to remit the matter to the Tribunal as no useful result could ensue: (see; SZYBR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [28] – [29]). Relevantly, in the absence of there being an approved employer sponsor, the visa application would be required to be again refused. Clause 186.223(1)(a) of the Regulations requires that the position to which the visa application relates, must be the one nominated in that application: (see; Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [88] –[90]). The Court agrees with this submission.
As the applicant is unrepresented, the Court has perused the Tribunal decision record. The Court is unable to ascertain any unarticulated jurisdictional error.
CONCLUSION
In all the circumstances, the application must be dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 28 October 2022
SCHEDULE OF PARTIES
SYG 1466 of 2021 Applicants
Fourth Applicant:
SAMIMAL HAMIM
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