Quoraishi v Minister for Immigration
[2020] FCCA 3148
•19 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| QUORAISHI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3148 |
| Catchwords: MIGRATION – Temporary Business Entry visa – decision of the Administrative Appeals Tribunal – where sponsor’s nomination had been refused – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 476, 479, 486C Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) |
| 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 |
| First Applicant: | SAMIA QUORAISHI |
| Second Applicant: | N B M NURUNNABI |
| Third Applicant: | NAFISA NAYMA NUR |
| Fourth Applicant: | HAFSA NAYMA NUR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 51 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 18 November 2020 |
| Date of Last Submission: | 18 November 2020 |
| Delivered at: | Perth |
| Delivered on: | 19 November 2020 |
REPRESENTATION
| Applicants: | The applicants appeared in person |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 51 of 2020
| SAMIA QUORAISI |
First Applicant
| N B M NURUNNABI |
Second Applicant
| NAFISA NAYMA NUR |
Third Applicant
| SAMIA NAYMA NUR |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of Bangladesh. The first applicant arrived in Australia on a student visa on 18 May 2014 (Court Book (“CB”) 1-19 and 36). Her husband, the second applicant, had previously arrived in Australia on 30 April 2011, also on a student visa (CB 54). The couple have three children. Two of those children (the third and fourth applicants) are parties to the proceedings before this Court. Their third child (born recently in Australia) is not a party to these proceedings.
On 1 June 2016, the first applicant applied for a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa (the “visa”). She was nominated for the position of Construction Estimator by All Building Trades Pty Ltd (the “sponsor”) (CB 1-19). The second, third and fourth applicants were included as members of the family unit.
On 31 January 2017, the then Department of Immigration and Border Protection invited the applicants to comment on information that the first applicant was not the subject of an approved nomination and that, as a result, the visa application was unlikely to be successful (CB 64-66).
On 24 February 2017, the applicants’ new migration agent responded to the invitation. The agent advised that the first applicant’s sponsor had lodged a new nomination application (CB 70).
On 15 May 2017, the Department again invited the applicants to comment on information that the first applicant was not the subject of an approved nomination and that, as a result, the visa application was unlikely to be successful (CB 74-76). That invitation was sent in error to the applicants’ previous migration agent.
On 13 June 2017, the Department resent the invitation to the applicants’ new migration agent (CB 77-79).
On 14 June 2017, that migration agent wrote to the Department to inform it that the sponsor had lodged a new nomination application (CB 80-81).
On 25 August 2017, the Department sent the applicants another invitation to comment on information that the sponsor’s nomination had not been approved (CB 82-85). On 21 September 2017, the applicants’ migration agent advised the Department that the applicant was identified in a nomination that had not been finalised (CB 86).
On 5 January 2018, the Department sent another invitation to comment to the applicants which, again, advised that the first applicant was not the subject of an approved nomination and that, as a result the visa application was unlikely to be successful (CB 87-89).
On 5 February 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa. The delegate was not satisfied that the first applicant met cl.457.223(4)(a) of the Migration Regulations 1994 (Cth) (the “Regulations”) as she was not the subject of an approved nomination. As the first applicant did not satisfy the requirements of the visa, it followed that her family was also refused the visa (CB 90-99).
On 2 March 2018, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision to refuse the visa (CB 107-109).
On 19 November 2019, the Tribunal invited the applicants to attend a hearing on 3 December 2019 (CB 117-120).
Between 2 December 2019 and 3 December 2019, there was an email exchange between the applicants’ migration agent and the Tribunal. The migration agent advised the Tribunal that their “clients” (the applicants and the sponsor) no longer wished to attend a hearing because they were “not able provide the information [the Tribunal] requested on 17 October 2019” (CB 121-123).
On 10 December 2019, the Tribunal invited the applicants to comment on or respond to information. The particulars of that information were as follows (CB 124-127):
The application for approval of the nominated position made by All Building Trades Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.
On 17 January 2020, the Tribunal affirmed the delegate’s decision to refuse the visa (CB 128-135).
On 12 February 2020, the applicants sought review of the Tribunal’s decision in this Court. The application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To succeed, the applicants must establish that the Tribunal’s decision was infected by jurisdictional error.
The Tribunal’s Decision
The Tribunal’s decision is five pages long and spans 19 paragraphs.
The Tribunal began by providing details relevant to the visa. It noted that the delegate had refused the visa on the basis that the first applicant did not meet cl.457.223(4) and confirmed that the applicants were represented by a migration agent (at [1]-[5]).
The Tribunal noted that the relevant issue before it was whether the first applicant met the requirements of cl.457.223(4)(a) (at [7]), which the Tribunal summarised as follows:
8. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
The Tribunal then summarised the delegate’s reasons for refusing the sponsor’s nomination (at [9]).
The Tribunal then noted that it had invited the applicants to attend a hearing and that the applicants’ migration agent had responded that the applicants would not be attending the hearing (at [10]-[11]).
The Tribunal noted that on 6 December 2019, it had refused to approve the sponsor’s nomination (at [12]).
The Tribunal continued:
13. On 10 December 2019 the Tribunal wrote to the applicants through their representative so that the applicants were advised of the adverse information that they were not the subject of an approved nomination by All Building Trades Pty Ltd. The applicants were given an opportunity to respond by 24 December 2019 or to request an extension of time to respond. The Tribunal’s letter to the applicants advised that they would lose their entitlement to appear before the Tribunal to give evidence or provide arguments if they did not respond by the nominated date. No response or request has been received by the Tribunal.
14. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.
15. The Tribunal finds that the primary subclass 457 visa applicant is not the subject of an approved nomination of an occupation relating to the applicant by a standard business sponsor.
16. For these reasons the requirements of cl.457.223(4)(a) are not met.
As the first applicant did not meet the requirements of the visa, the Tribunal affirmed the decision in respect of the other applicants (at [17]).
The Tribunal affirmed the delegate’s decision not to grant the visa (at [19]).
Proceedings in this Court
The applicants’ application for judicial review filed 12 February 2020 contains the following grounds of review:
1.Nominating Business have gained work contracts from previous and new clients.
2.Business is in genuine need to employ Building Associate to meet the requirements of the contacts.
3.Applicant is highly experienced and has been associate with company working as building associate from May 2014.
(Without alteration)
Despite being given an opportunity to file an amended application, any affidavit evidence and any written submissions, the applicants did not do so.
The evidence before the Court is thus limited to the applicants’ application for judicial review filed on 12 February 2020, correspondence confirming service of the Court Book and the Minister’s written submissions (marked as Exhibit 1), a Court Book numbering 135 pages (marked as Exhibit 2), an affidavit of Georgina Roberta Ellis affirmed 4 September 2020 and the Minister’s written submissions filed 21 August 2020.
This matter was originally listed for hearing on 16 September 2020. On 17 August 2020, the Court received an email from a Legal Aid lawyer who asked, on behalf of the applicants, for the hearing to be delayed three months as the first applicant was pregnant. Attached to that request was a letter from a medical practitioner advising that the applicant would soon give birth to her third child.
The Court asked the parties to confer in relation to whether an adjournment was needed.
On 3 September 2020, Chambers emailed the parties requesting an update. The Minister’s solicitor advised that they had had not received any recent correspondence from the applicants.
On 12 September 2020, Chambers emailed the parties advising that the matter would be re-listed for a hearing on 18 November 2020.
The applicants appeared before this Court on 18 November 2020. The first applicant and the second applicant appeared on their own behalf. They were assisted by a Bengali interpreter. The Court is satisfied that the applicants were able to meaningfully engage with the Court.
The Court queried whether the applicants had received a copy of the Court Book and the Minister’s submissions. The first applicant (who indicated that she would speak on behalf of all of the applicants) indicated that she did not have the documents with her. The Minister provided correspondence confirming that the applicants had been sent all relevant documentation (Exhibit 1). The Court is satisfied that the applicants did receive all relevant materials. To assist the applicants, the Court asked Counsel for the Minister to summarise the Minister’s submissions in detail and, where needed, highlight any references in the Court Book.
Noting that the applicants were unrepresented, the Court also gave the first applicant an opportunity to elaborate on, and further particularise, the grounds of review as articulated and to advise the Court if there was anything she thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
The Court also explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. It was noted 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] (“SZRUI”); 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].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the visa her family seeks. Rather, the role of the Court is restricted to determining if 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.
Against this background, the first applicant detailed her employment history with the sponsor. She also indicated that she had not seen any of her sponsor’s documents. In reply submissions, the first applicant pleaded with the Court to allow her and her family to stay in Australia. She referenced the needs of her three young children and the health crisis caused by the coronavirus in Bangladesh.
Unfortunately, while the Court is sympathetic, the first applicant’s oral submissions do not identify any jurisdictional error on the part of the Tribunal. To the extent that they take issue with the sponsor’s approach to their sponsorship application before the Tribunal, this Court has no jurisdiction to review the sponsor’s decision in this Court: the Act, ss.479 and 486C. It is also the case that that application has not been appealed to this Court.
Consideration
Grounds 1 and 2 say no more than that the first applicant believes that her sponsor is in “genuine need of Building Associates”. This may well be the case. However, this is not relevant to the issues on review as this information does not relate to the Tribunal’s decision to refuse the visa in question. The visa was refused on the basis that the first applicant was not the subject of an approved nomination. As the sponsor’s need for Building Associate’s is not relevant to whether there was, in fact, an approved nomination, it does not evidence jurisdictional error on the part of the Tribunal.
Similarly, ground 3 states that the first applicant is an experienced Building Associate. Again, this is not relevant to the issue of whether the first applicant was the subject of an approved nomination and does not establish error on the part of the Tribunal.
The grounds of review are, accordingly, dismissed.
The Minister notes that the Tribunal’s decision states that the applicants lost the entitlement to attend a hearing as a result of the failure to respond to the s.359A invitation. This is incorrect. The applicants’ migration agent had indicated on 3 December 2019 that the applicants consented to the Tribunal determining the matter on the papers. In light of the applicants consenting to the Tribunal determining the matter on the papers, the applicants lost any entitlement to appear on that date – not because they failed to respond to the invitation to comment.
This error is not, however, material to the Tribunal’s ultimate conclusion. Whether it was because the applicants had consented to the matter being determined on the papers or because they had failed to respond to the invitation to comment, the applicants were not entitled to attend a hearing.
Finally, as noted by the Minister, even if there was jurisdictional error, there would be no utility in granting any relief. There is no evidence that the sponsor has sought judicial review of the Tribunal’s decision. In those circumstances (and noting that the Minister’s Department is no longer accepting sponsorship or nomination applications for this type of visa (Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)), the Tribunal would have no choice but to come to the same conclusion.
Conclusion
The applicants have failed to identify any error on the part of the Tribunal. The Court has otherwise been unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 19 November 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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