Paramba v Minister for Immigration

[2018] FCCA 2161

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARAMBA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2161

Catchwords:
MIGRATION – Application for judicial review – Temporary Business Entry (Subclass 457) visa – whether Tribunal made error – nomination of sponsor – standing to apply for review – no error by the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), s476

Migration Regulations 1994 (Cth), regs 2.72(10)(c), 10.72(10)(aa)

Cases cited:

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40

Applicant: ASHRAF ALINGA PARAMBA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 480 of 2017

Judgment of: Judge McNab

Hearing date: 3 August 2018

Date of Last Submission: 3 August 2018

Delivered at: Melbourne

Delivered on: 1 October 2018

REPRESENTATION

Applicant in Person

Counsel for the Respondent: Ms Wilde

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed 9 March 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 480 of 2017

ASHRAF ALINGA PARAMBA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant filed an application with the Court on 9 May 2017 whereby he seeks judicial review of a decision of the Administrative Appeals Tribunal made on 5 April 2017. By that decision, the Tribunal affirmed a decision of a delegate of the Minister to refuse the Applicant a grant of a Temporary Business Entry (Subclass 457) visa (‘the Visa’). 

Chronology

1. The chronology for this matter was accurately set out in [8] – [17] of the submissions of the First Respondent, which are extracted exactly below (citations omitted):

2. The Applicant, a 43-year-old citizen of the India, applied for the Visa on 18 November 2014. The Applicant was represented by Atlas Migration (first representative). On the Visa application, the Applicant nominated Biriyani House Pty Ltd as his sponsoring employer (‘Biryani House’).

3. On 23 December 2014, the Department invited the Applicant to comment on information, namely that Biryani House did not have an approved nomination for him at that time and, therefore, it was unlikely that the Visa application would be successful.

4. On 3 February 2015, the Department requested further information from the Applicant.

5. On 18 February 2015, the first representative provided the Department with the requested information.

6. On 14 May 2015, the Department requested further information from the Applicant.

7. On 22 June 2015, the Department invited the Applicant to comment on information, namely that Biryani House did not have an approved nomination for him at that time and, therefore, it was unlikely that the Visa application would be successful.

8. On 20 July 2015, the first representative emailed the Department various documents, including a letter from the Department to Biryani House, which acknowledged Biryani House’s nomination application.

9. On 20 August 2015 and 5 October 2015, the Department invited the Applicant to comment on information, namely that his Biryani House did not have an approved nomination for him at that time and, therefore, it was unlikely that the Visa application would be successful.

10. On 29 October 2015, the Applicant:

    a)notified the Tribunal that he had appointed a new representative, Graeme Lankford (second representative;) and

    b)provided the Department with a letter from Biryani House, which stated that the company had applied to the Tribunal for merits review of the delegate's decision in respect of the nomination application.

11. On 16 November 2015, the Department notified the Applicant of the delegate's decision, dated the same day, to refuse to grant the Visa on the basis that the delegate was not satisfied that the Applicant met cl.457.223(4)(a) of the Migration Regulations 1994 (Cth), as he was not the subject of an approved nomination.

12. An oral decision was made by the Tribunal on 16 February 2017 and after the application for judicial review was filed, a written record was produced by the Tribunal, and that is dated 6 April 2017. The Tribunal’s record of decision sets out the relevant law and noted that the hearing that the Applicant confirmed in his evidence that at the time he was not subject of an approved business nomination that had not ceased. The Tribunal found, based on the evidence before it, that the Applicant did not meet the requirements of cl 457.223(4)(a) because the Applicant did not have an approved nomination under s 140GB by a standard business sponsor and that the nomination had not ceased. The Tribunal affirmed the decision of the delegate.

Grounds of review

1. The grounds of review set out in the application filed 9 March 2017 are as follows:

   1.When the company Biryani House Pty. Ltd. made its applications in 2013, it was granted both sponsorship and nomination approval. The approval of the nomination was later withdrawn as I did not have the required IELTS scoring. I undertook the required studies to achieve this score and then a further application was made. The matter of sponsorship was held as being acceptable, however, the nomination was denied as it was considered that insufficient steps had been to advertise the position for further interest.

   I have yet to have it explained to me why an applications for Sponsorship and Nomination should be treated as acceptable in the first application and then denied when I had achieved the required IELTS score.

   2.Another point of contention was that of payment. Pay rates were based on advertised industry standards and also those guidelines which are set out by Fair Work Australia. I would consider that paying industry based pay rates, which are approved a Government Authority and in concurrence with the requirements of a 457 visa ($53,900.00 per annum).

   3. I have made a number of requests for review of these matters. On each occasion I get the impression of shifting goal posts and new matters of consideration are brought before me to deny the company the re-instatement of the Nomination.

   4.I ask that these matter are correctly considered and that the nomination which was approved and given to the company on 29th November 2013 be reinstated.

2. There are additional matters raised by the Applicant, which are dealt with below.

Biryani House nomination

1. On 3 October 2017, the Applicant wrote to the solicitors for the Minister, Clayton Utz, stating as follows:

   Thank you for providing me with a copy of the court book. I notice that many of the letters in relation to the company’s request for reconsideration of sponsorship and nomination have not been included. My reason for referring this matter to the Federal Court for reconsideration is that while the company was granted sponsorship, the aspect of nomination was declined on three occasions. 

   As a result, I made representations to the Administrative Appeals Tribunal with the prospect of the company obtaining nomination so that I might obtain a 457 visa. 

   When I attended the Administrative Appeals Tribunal, I was disappointed with each hearing as the administrator advised that as the company had not obtained a nomination, I was therefore ineligible to obtain a 457 visa. I was somewhat confused on this issue as the basis of my appeal was for consideration of the aspect of nomination approval for the company. 

   I felt that I had been very badly treated and the company application for nomination had not been genuinely considered.  Perhaps my wording in the matter of my applications was not of the desired standards; however, I do request that the Federal Court reconsider the application for nomination on the merit of all the information provided. Please advise if you require further information in order to progress this matter. 

2. The First Respondent, acting as a model litigant, treated the Applicant’s letter as a written submission and responded to it in their submissions accordingly.

3. To give context to the letter, Biryani House Pty Ltd was the Applicant in an application for review of a decision made by a delegate of the Minister to refuse the Applicant’s nomination under s 140GB of the Migration Act. This decision was made 12 January 2017.

4. The Tribunal noted at [3] of its decision that the delegate decided not to approve the nomination on the basis that the Applicant did not satisfy regs 2.72(10)(c) and 10.72(10)(aa). This was because the delegate was not satisfied that the terms and conditions of employment of the nominee would be no less favourable than those that are or would be provided to an Australian citizen or permanent resident performing equivalent work at the same location.

5. The Tribunal in that case considered the delegate’s finding and stated:

   [36]I’ve taken into account the evidence regarding the business’ turnover and the number of customers. I’ve also considered the position description, the offer of employment, the organisational chart, and the financial documents.

   [37]Considering the size of the business, I’m not satisfied that the position associated with the nominated occupation is genuine.  According to his own evidence given at the hearing, Mr Paramba is performing tasks of a managing director which is not the occupation nominated in the application.

   [38]Based on the evidence before me, I’m satisfied that the main purpose of created the position of a cook within the business was to facilitate Mr Paramba’s stay in Australia. I find this to be the primary objective of the application. 

   [39]Based on the evidence before me, I am not satisfied that the position associated with the nominated occupation is a genuine position. For these reasons the requirements of regulation 7.72(10)(f) are not met. Accordingly, the decision under review must be affirmed.

6. I note that at [10] of the Tribunal’s decision in the matter of Biryani House’s nomination, the Applicant attended before the Tribunal to give evidence. He gave evidence that he was a cook working at Biryani House and that he also was the owner and managing director of that business.[1]

   [1] Tribunal decision [11].

7. That decision has not been subject of any application for review by Biryani House Pty Ltd. The decision which is the subject of review today was a decision where the Applicant was seeking review of a decision not to grant him a Subclass (457) visa.

Consideration

1. Clause 457 of Sch 2 to the Migration Regulations 1994 (Cth) outlines the criteria that must be satisfied at the time an application for the Visa is made and the criteria that must be satisfied at the time the decision is made whether to grant the Visa.

2. The Applicant must meet the requirements of cl 457.223 and specifically at the time of the decision, either subclauses (2) or (4).  Clause 457.223(4) provides that:

   The Applicant meets the requirements of this subclause if

   (a) each of the following applies:

   (i) a nomination of an occupation in relation to the Applicant has been approved under section 140GB of the Act;

   (ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

   (iii) the approval of the nomination is not ceased as provided for in regulation 2.75.

3. In the course of discussing the matter with the Applicant who appeared before the Court to make arguments, the particular circumstances of the case were discussed with the Applicant and the Court drew to his attention the substance of the submissions of the First Respondent.  The matter was stood down for a period of about 15 to 20 minutes to allow the Applicant to discuss these matters with his accountant, Mr Langford, who was present at Court. The Court understands that Mr Langford is not a legal practitioner and was not giving legal advice but attended to assist and support the Applicant.

4. The Court is of the view that there is no error in the decision of the Tribunal. It appears that the decision of the Tribunal was the only decision that was open to it at the time that the Applicant appeared before it. As there was no approved sponsor as required by the regulations. To the extent that the Applicant now wishes to reopen the decision of the Tribunal in relation to Biryani House’s nomination:

   a)that is not a matter that is before this Court; and

   b)it is not open for this Court to substitute its own decision for that of the Tribunal.[2]

   [2] Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Anor [1996] HCA 40 [40].

5. Otherwise there is nothing before the Court that suggests that the Tribunal did not apply the relevant law or that the Tribunal did not accord the Applicant procedural fairness in the way that it conducted the hearing.

Conclusion

1. In those circumstances the Court must dismiss the application. The Court is mindful that this has significant implications for the Applicant; however, it must act in accordance with law. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 1 October 2018