Nawsabreen v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs

[2021] FCCA 83

FEDERAL CIRCUIT COURT OF AUSTRALIA

Nawsabreen v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 83

File number(s):

PEG 30 of 2020

Judgment of:

JUDGE KENDALL

Date of judgment:

29 January 2021

Catchwords:

MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – where the first applicant had no approved nomination – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr 1.06, 44.12, 44.13

Migration Act 1958 (Cth), s 476

Migration Regulations 1994 (Cth), reg 5.19, cl 187.233

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600

Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

Singh v Minister for Immigration & Border Protection [2017] FCAFC 105

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Number of paragraphs:

47

Date of hearing:

21 January 2021

Place:

Perth

Applicants:

The first applicant appeared in person and on behalf of the second applicant and the third applicant

Counsel for the First Respondent:

Ms G Ellis

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

PEG 30 of 2020

BETWEEN:

MOHAMAD FEHAN MOHAMAD NAWSABREEN

First Applicant

FATHIMA NAZEEFA MOHAMMED AKBAR

Second Applicant

HAROON FEHAN

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	29 JANUARY 2021

THE COURT ORDERS THAT:

1.The application be dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

REASONS FOR JUDGMENT

JUDGE KENDALL

INTRODUCTION

1. The applicants are citizens of Sri Lanka. The first and second applicant are husband and wife respectively. The first applicant has been residing and working in Australia since early 2009. The third applicant is the son of the first and second applicant. He was born in Australia in 2016 (Court Book (“CB”) 1-62).

2. On 19 January 2017, the first applicant applied for a Regional Employer Nomination (subclass 187) visa (the “visa”). He applied for the position of Retail Manager with M.A. Alawdeen & M Mohammed Akbar t/a Revolution Cars Perth (the “sponsor”). The remaining applicants were members of the family unit (CB 1-62).

3. On 8 January 2018, the applicants were invited by the then Department of Immigration & Border Protection to comment on the following information (CB 75-78):

   Nomination refused

   The nomination submitted to the department by M.A. Alawdeen & M Mohammed Akbar listing you as their Nominee has been refused. Unfortunately this means that your visa application cannot be approved…

4. On 7 February 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 84-87). The delegate found that the first applicant did not satisfy cl 187.233 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the first applicant was not the subject of an approved nomination. As the first applicant did not meet the primary criteria, the second applicant and the third applicant were also refused the visa.

5. On 12 February 2018, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 88-90).

6. On 2 January 2020, the Tribunal invited the applicants to comment on the following information (CB 99-100):

   The particulars of the information are:

   •The application for approval of the nominated position made by M.A Alawdeen & M Mohammed Akbar t/a Revolution Cars Perth (the nominator) was refused by a delegate of the Minister of Home Affairs. The nominator sought a review of that decision with the AAT, but the application for review has recently been affirmed by the Tribunal.

   This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.

   If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.

7. On 17 January 2020, the applicants’ migration agent responded as follows (CB 101):

   This is with respect to Invitation To Provide Information of AAT case. Please be advised no addition information available to be provided. Please consider the case based on information we provided earlier and request to proceed with the decision.

8. On 21 January 2020, the Tribunal affirmed the delegate’s decision not to grant the applicants the visa they were seeking (CB 106-111).

9. On 24 January 2020, the applicants applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). The hearing in this matter proceeded pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”). To obtain assistance, the applicants must show that there is a reasonably arguable case that the Tribunal has fallen into jurisdictional error.

   TRIBUNAL’S DECISION

10. The Tribunal’s decision is six pages long and spans 28 paragraphs.

11. The Tribunal began by identifying the type of visa under review.  It also noted that the delegate had refused the visa on the basis that the first applicant did not have an approved nomination (at [1]-[5]). The Tribunal then confirmed that the applicants were represented by a migration agent (at [6]).

12. The Tribunal noted that the issue in this matter was whether there was an approved nomination (at [8]).

13. The Tribunal then summarised what is required to meet cl 187.233 of the Regulations. In particular, the Tribunal noted that this criterion required that the first applicant must be the subject of an approved nomination (at [9]-[10]).

14. The Tribunal stated that the first applicant’s sponsor’s nomination was refused by a delegate (at [11]). It noted that on 20 December 2019, the Tribunal had affirmed the delegate’s decision to refuse the sponsor’s nomination (at [12]).

15. The Tribunal explained that it had sent an invitation to comment to the applicants advising them that the sponsor’s nomination was refused (at [13]-[15]). The Tribunal confirmed that the applicants’ migration agent had responded indicating that the Tribunal should make a decision on any information the applicants’ had previously provided (at [15]). The Tribunal noted that the only information provided was the delegate’s decision and a copy of each applicant’s passport (at [15]).

16. The Tribunal then considered whether it was appropriate, in these circumstances, to adjourn the review (although the Court notes no request for an adjournment appears to have been made) (at [16]-[17]). The Tribunal considered whether any information would be forthcoming and what opportunities the applicants had had to provide information (noting that the review had been on foot before the Tribunal for 22 months) (at [18]-[19]). The Tribunal considered that the applicants had had a fair opportunity to provide any information and, accordingly, chose not to adjourn the review (at [20]-[21).

17. The Tribunal continued:

    22. As set out in paragraph 12 above, on 20 December 2019, the Tribunal affirmed the Department's decision in relation to the nominator's review application, and so there is no approved nomination. The Tribunal finds that the applicant cannot satisfy cl.187.233(3) of Schedule 2 to the Regulations because the position specified in the visa application is not the subject of an approved nomination.

18. The Tribunal then referred to decision in Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 (“Singh”) in which it was held that the “nomination” which must be approved for an applicant to meet cl 187.233 must be the “nomination” identified in the visa application (at [23]). A new nomination cannot be substituted.

19. The Tribunal continued:

    24. In this matter, the Tribunal notes that because there is no approved nomination for the applicant's visa application, he cannot overcome his current inability to meet cl.187.233(3) in relation to her application. The nomination by M.A. Alawdeen & M Mohammed Akbar t/a Revolution Cars Perth was specifically linked to his visa application, and that nomination was not, and now cannot be, approved.

    25. Therefore, cl.187.233(3) is not met.

20. Having determined that the first applicant did not meet the primary criteria, the Tribunal found that the remaining applicants could also not be granted the visa (at [27]).

21. The Tribunal affirmed the delegate’s decision not to grant the applicants the visa (at [28]).

    PROCEEDINGS IN THIS COURT

22. The application for judicial review filed 24 January 2020 contains the following grounds of review:

    1. Applicant argues that the refusal decision involved an error of law that the nomination did satisfy the legal requirement in subregulation 5.19(4) of the Migration Regulations and 187.233 in Schedule 2 of the Act.

    2. Applicant has the right to have FCC review and to have an opportunity for court hearing on his case according to SECT 476(1) MIGRATION ACT 1958.”

23. The applicants were given an opportunity to file an amended application, any affidavit evidence and written submissions. No further materials were filed by the applicants.

24. The materials before the Court include the application for judicial review filed 24 January 2020, a Court Book numbering 111 pages (marked as Exhibit 1) and the Minister’s written submissions dated 24 August 2020.

25. The matter was listed for a show cause hearing on 21 January 2021.

26. The first applicant appeared before the Court without legal representation and spoke on behalf of the other applicants. Notwithstanding r 44.13 of the Rules (which the Court notes can be dispensed with pursuant to r 1.06 of the Rules), the Court allowed the first applicant to elaborate on, and further particularise, the grounds of review. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].

27. To assist the first applicant, the Court explained that in the context of a show cause application, he had to satisfy the Court that there is a reasonably arguable case that the Tribunal made “a material error”. The Court explained that in determining whether a reasonably arguable case of error arises, the Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:

    (a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;

    (b)where the decision-maker ignores relevant material: Craig at 198;

    (c)where the decision-maker relies on irrelevant material: Craig at 198;

    (d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];

    (e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

    (f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

28. It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he seeks. Rather, the role of the Court is restricted to determining if there is an arguable case that the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

29. Against this background, the first applicant stated that “the jurisdictional error in this case is that he has not been given the opportunity to find a new nominator”. He explained that this is unfair and stressed that “he has not done anything wrong”. The first applicant further contended that the “Department” “finds ways to refuse visas”. He also seemed to suggest that the Tribunal did not allow him (or told him) that he could not provide any further information.

30. The Court will address these submissions below.

    CONSIDERATION

31. As a preliminary matter, the Court notes that the first applicant was not identified in the Tribunal’s decision as the “primary” applicant. The Tribunal, where it has used gender pronouns in relation to the “primary” applicant, has used “her” and “she” (at [20], [21] and [24]). The Court considers this to be no more than a typographical error. It is clear that the Tribunal actually considered the “primary” applicant to be the first applicant in these proceedings.

    Judicial Review Application

32. Ground 1 of the judicial review filed 24 January 2020 provides:

    1. Applicant argues that the refusal decision involved an error of law that the nomination did satisfy the legal requirement in subregulation 5.19(4) of the Migration Regulations and 187.233 in Schedule 2 of the Act.

33. The “error of law” in relation to reg 5.19(4) refers to an “error of law” in the sponsor’s decision. Regulation 5.19 forms no part of the applicants’ application or the reasons for the Tribunal’s decision in relation to the applicants before this Court

34. Accordingly, there is no error of law in relation to reg 5.19(4).

35. It is noted that the first applicant’s sponsor filed a judicial review proceeding in this Court. That application was not successful. 

36. Here, in relation to cl 187.233, the Tribunal correctly identified that the first applicant was required to be the subject of an approved nomination. He was not. The Tribunal had no option but to refuse the visa in those circumstances.

37. Accordingly, ground 1 raises no arguable error.

38. In relation to ground 2, the Court notes that the “right” referred to in this ground has been met by these proceedings.

39. Accordingly, ground 2 raises no arguable case.

    Oral Submissions

40. At the hearing, the applicant submitted that the error that the Tribunal made was that it did not allow him to find a new nominator. He stressed that this was unfair as he has done nothing wrong.

41. As the Tribunal explained at [9], cl 187.233 can only be met if the nomination which is identified in the visa application is approved. It is a “once off” process: Singh at [90].  The nomination is for a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances: Singh at [88]. A “substitute” cannot be made.

42. Accordingly, the first applicant’s submission that he should have been allowed to find a new nominator does not identify jurisdictional error. Whether or not he found a new nominator, the Tribunal was required to affirm the decision.

43. The first applicant also made allegations that the Minister’s Department were “looking for ways to refuse visas”. Arguably, this relates to the delegate’s decision. This Court has no jurisdiction in relation to the delegate’s decision: the Act, s 476(2) and (4). In any event, the first applicant’s allegation is scandalous and advanced without supporting evidence.

44. The first applicant’s oral submissions fail to identify any arguable case of jurisdictional error.

    Futility

45. Finally, if there were an error in the Tribunal’s decision (for example, if the applicants had been denied procedural fairness) it would be futile for the Court to remit the matter. The Court has now dismissed the application for judicial review of the sponsor’s decision. Accordingly, even if the Court were to remit the matter back to the Tribunal, the first applicant could still not be granted the visa. He would not be the subject of an approved nomination and the Tribunal would again have no choice but to find that cl 187.233 was not met. The visa would thus be refused: Singh.

    CONCLUSION

46. The applicants have failed to identify any arguable error in the Tribunal’s decision. The Court is otherwise satisfied that no arguable jurisdictional error arises and that any relief would be futile.

47. The application is, accordingly, dismissed pursuant to r 44.12(1)(a) of the Rules.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       29 January 2021