Paramba v Minister for Immigration and Border Protection
[2019] FCA 231
•6 February 2019
FEDERAL COURT OF AUSTRALIA
Paramba v Minister for Immigration and Border Protection [2019] FCA 231
Appeal from: Paramba v Minister for Immigration & Anor [2018] FCCA 2161 File number: VID 1305 of 2018 Judge: CHARLESWORTH J Date of judgment: 6 February 2019 Legislation: Migration Act 1958 (Cth) ss 31, 65, 140GB, 474
Migration Regulations 1994 (Cth) cll 457.22, 457.223, Sch 2
Cases cited: Paramba v Minister for Immigration & Anor [2018] FCCA 2161
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Date of hearing: 6 February 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 23 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr C Hibbard Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
VID 1305 of 2018 BETWEEN: ASHRAF ALINGA PARAMBA
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
6 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The name of the first respondent be amended to read Minister for Home Affairs.
3.The appellant pay the first respondent’s costs of the appeal, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
This proceeding was commenced by an application for leave to appeal filed on 10 October 2018. On 16 January 2019, I made an order granting leave to appeal to the extent that leave was required. I also made an order that the draft notice of appeal taken to have been filed in the Court on 10 October 2018 be treated as the notice of appeal for the purposes of this proceeding.
On 6 February 2019 I made an order dismissing the appeal on its substantive merits. Oral reasons for that order were given at the hearing. What follows are written reasons to substantially the same effect.
The appeal is from orders made by the Federal Circuit Court of Australia (FCCA) on 1 October 2018: Paramba v Minister for Immigration & Anor [2018] FCCA 2161. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection, as then-named, to refuse to grant the appellant a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa under the Migration Act 1958 (Cth).
Section 31 of the Act provides that there are to be prescribed classes of visa. The Migration Regulations 1994 (Cth) may prescribe the criteria for a visa of a particular class. If the Minister is satisfied that a visa applicant fulfils the criteria for the grant of the visa, the Minister must grant the visa: s 65(1)(a) of the Act. Conversely, if the Minister is not so satisfied the Minister must refuse to grant the visa: s 65(1)(b) of the Act.
The essential criteria for the visa for which the appellant applied included those prescribed in cl 457.22 of Sch 2 to the Regulations. That clause is titled “Criteria to be satisfied at time of decision”. As that title suggests, in order to be eligible for the grant of the visa it was necessary that the Minister be satisfied that the appellant fulfilled the criterion in cl 457.22 as at 18 November 2014, being the date on which the visa application was lodged. In reviewing the Minister’s decision it was necessary for the Tribunal to examine the circumstances as they existed on that date, not as at the date of its own decision.
Clause 457.223(1) of Sch 2 to the Regulations provides that the appellant must meet the requirements of subcl (2) or (4). The Tribunal focused on subcl (4) and the Court will do the same. The criterion in that subclause will be fulfilled if, among other things:
(i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
…
A decision made pursuant to s 140GB of the Act is a decision that, of itself, may be subject to review by the Tribunal.
In support of his visa application, the appellant provided a nomination of an occupation pursuant to s 140GB(1). The Minister by his delegate, refused to approve the nomination. That decision was reviewed by the Tribunal.
On 12 January 2017 the Tribunal affirmed the decision of the Minister’s delegate to refuse the nomination. Critically, the appellant did not seek judicial review of the Tribunal’s decision made on 12 January 2017.
In a separate and distinct decision, the delegate refused to grant the appellant the visa on the basis that he did not satisfy cl 457.223(4)(a)(i). In its reasons for decision, the Tribunal concluded that the nomination for an occupation in relation to the appellant had not been approved under s 140GB of the Act. The decision to refuse the visa was made on 16 February 2017. It was that decision (and only that decision) that was the subject of the application for judicial review by the learned primary judge.
On the material before me it seems that the appellant, on his own behalf and through the assistance of an agent, made submissions to the Tribunal to the effect that the nomination should have been approved. However, the decision subject to review by the Tribunal at that time was the delegate’s decision to refuse to grant the visa under s 65 of the Act, not the earlier decision to refuse to approve the nomination under s 140GB of the Act. As I have mentioned the appellant did not at any time seek judicial review of the Tribunal’s decision of 12 January 2017 affirming the delegate’s decision to refuse to approve the nomination.
In the proceedings before the primary judge the onus was on the appellant to show that the Tribunal’s decision to affirm the visa refusal decision was affected by jurisdictional error: s 474 of the Act, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In his reasons for dismissing the application for judicial review, the primary judge said (at [26]):
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.
(footnote omitted)
The primary judge was correct to conclude that at the time of the Tribunal’s decision there was no approved nomination. The reason that there was no approved nomination happened to be because the delegate had refused a nomination under s 140GB, and that decision had been affirmed by the Tribunal in an earlier exercise of its review functions. The remedy that ought to have been sought by the appellant in those circumstances was to seek judicial review of the decision to affirm the refusal of the nomination, but that had not been done.
The primary judge was also correct to conclude that the question of whether or not there was error affecting the refusal of the nomination was not a matter that was before him. The decision subject to judicial review before his Honour was, as I have said, the decision made on 16 February 2017 to refuse to grant the visa.
The learned primary judge was also correct to find that it was not open for the Court to substitute its own decision for that of the Tribunal. The learned judge did not err in rejecting the submissions of the appellant to the effect that he ought to be granted a visa.
There are two grounds of appeal now before me. The first is that the learned judge erred in law and therefore fell into jurisdictional error by failing to properly consider the evidence, particularly by:
1)… discounting the evidence that indicated that Minister’s delegate had incorrectly assessed Applicant’s eligibility for a Temporary Business Entry (Subclass 457) visa;
2) … failing to consider the evidence in totality and cumulatively;
3)… failing to properly and/or adequately investigate and assess the claims of the Applicant.
The second ground of appeal is that:
The learned judge in the Federal Circuit Court erred in law and therefore fell into jurisdictional error by failing to identify the bias displayed against the Applicant by the Minister’s delegate.
The second ground may be dealt with shortly. An allegation of actual or apprehended bias was not raised in the grounds for judicial review argued before the learned primary judge, nor has it been shown that such an argument was raised in the course of oral submissions in a way that would oblige the primary judge to deal with it.
Furthermore, if there was bias displayed against the appellant by the Minister’s delegate, that was not a matter in respect of which the primary judge had jurisdiction to consider and deal with. The task of the primary judge was to identify jurisdictional error affecting the Tribunal’s decision, not the decision of the Minister’s delegate. I will not grant the appellant leave to introduce this new argument in the course of the appeal as it does not have any reasonable prospect of success. That leaves the first ground of appeal.
In his submissions made to the Court today, the appellant relied upon a document titled Notification of Approval for Nomination, dated 10 September 2018. The document demonstrates that if the appellant were to apply for a visa today he would satisfy the criterion in cl 457.223(4)(a)(i). However, demonstration of the fulfilment of the criteria as of today’s date does not assist the appellant to demonstrate that there was jurisdictional error affecting the Tribunal’s decision made on 16 February 2017.
The submissions made by the appellant and by his support person on his behalf on the appeal were to the effect that there were reasons why a visa should now be granted to the appellant, particularly in relation to his employment circumstances and again by reference to the fact that he has now secured an approved nomination. The task of this Court on the appeal is to identify appealable error affecting the decision of the learned primary judge. The circumstance that a nomination has been approved on 10 September 2018 does not demonstrate appealable error by the primary judge, whether of the kind alleged in the grounds of appeal or otherwise.
It follows from what I have said that the appeal must be dismissed as neither of the grounds of appeal before me are established.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 6 February 2019
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