Quoraishi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 1014
•2 September 2022
FEDERAL COURT OF AUSTRALIA
Quoraishi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1014
Appeal from: Quoraishi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3148 File number: WAD 301 of 2020 Judgment of: BANKS-SMITH J Date of judgment: 2 September 2022 Catchwords: MIGRATION - appeal from Federal Circuit Court - sponsor's application to nominate appellant for occupation not approved - appellant's application for Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa refused by delegate - where application to Administrative Appeals Tribunal unsuccessful - whether Federal Circuit Court denied the appellants procedural fairness - no denial of procedural fairness or other jurisdictional error disclosed - oral application to adjourn hearing dismissed - appeal dismissed Legislation: Migration Act 1958 (Cth) ss 140GB, 359C
Migration Regulations 1994 (Cth) reg 2.72, Schedule 2 cl 457.223
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 42 Date of hearing: 30 August 2022 Counsel for the First and Second Appellants: The First and Second Appellants appeared in person Counsel for the Third and Fourth Appellants: The First Appellant appeared on behalf of the Third and Fourth Appellants as their litigation guardian Counsel for the First Respondent: Ms GR Ellis Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
WAD 301 of 2020 BETWEEN: SAMIA QUORAISHI
First Appellant
N B M NURUNNABI
Second Appellant
NAFISA NAYMA NUR
Third Appellant
HAFSA NAYMA NUR
Fourth AppellantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BANKS-SMITH J
DATE OF ORDER:
2 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The appellants' application for an adjournment of the appeal made orally at the hearing is dismissed.
2.The appeal is dismissed.
3.The appellants pay the first respondent's costs of the appeal fixed in the sum of $4,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BANKS-SMITH J:
This is an appeal from a decision of the Federal Circuit Court dismissing the appellants' application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a visa refusal decision of a delegate of the Minister. Relevantly, the first appellant, Ms Quoraishi, had sought a Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa (457 visa) under the Migration Act 1958 (Cth).
Ms Quoraishi's intended sponsor was All Building Trades Pty Ltd and her nominated occupation was 'construction estimator'.
The process for the grant of a 457 visa relevantly involved two steps. All Building Trades was required to have its own nomination application approved. Ms Quoraishi also had to have her application approved.
All Building Trades' application was not successful. It was refused by the Minister and a merits review to the Tribunal was dismissed. It inevitably followed that Ms Quoraishi's application was not successful.
For the reasons explained below, there was accordingly no error disclosed in the Tribunal's decision to affirm the delegate's visa refusal decision and no error disclosed in the Federal Circuit Court's decision to dismiss the review application.
During the hearing, Ms Quoraishi and the second appellant, Mr Nurunnabi, sought to adjourn the hearing or defer any determination on the basis that separately Mr Nurunnabi has applied for a visa and his employer is intending to bring an application to assist in that regard. It was not entirely clear on what basis Mr Nurunnabi was seeking a visa and no evidence as to these matters was provided, but I was prepared to accept for the purpose of the application his submission that he is working as a chef for a successful restaurant and that he has a general intention to pursue a visa so that his family can remain in Australia.
Ms Quoraishi and Mr Nurunnabi made what I accept were genuine submissions about their desire to remain in Australia, the fact that their children are settled in schools and Mr Nurunnabi's efforts both as a chef and to learn English. They had the assistance of a Bengali interpreter but also spoke English at times, which the Court was readily able to understand.
However, in the end, nothing in their submissions justified the grant of an adjournment. The appeal has been listed for some months; the point the subject of the appeal is simple and narrow; all parties have had the opportunity to file any evidence and submissions upon which they sought to rely; there was no evidence filed in support of the adjournment; and, most tellingly, the fact that Mr Nurunnabi may have lodged a further application to obtain a visa does not affect the determination of this appeal. This appeal concerns a decision made on 5 February 2018 to refuse a 457 visa application and is the next step in the process of review and appeals relating to that particular decision undertaken by the appellants since that time.
Having heard the appellants' submissions in support of an adjournment and having heard submissions from counsel for the Minister as to why the adjournment was opposed, I determined that the application should be dismissed, gave short reasons, and explained that I would set out those oral reasons again in these published reasons. I then heard full submissions relating to the notice of appeal.
For the reasons set out below, the appeal too must be dismissed.
The legislative framework
Schedule 2 of the Migration Regulations 1994 (Cth) contains provisions with respect to the grant of subclasses of visas, including 457 visas. At the relevant time it was a requirement for a 457 visa that the applicant should be sponsored by an employer, that the sponsorship application should, at the time of the application, have been approved by the Minister and that it relate to a recognised nominated occupation. This requirement was relevantly contained in cl 457.223(4) of Schedule 2, which provided:
(4) 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 has not ceased as provided for in regulation 2.75 …
(emphasis added)
This clause of Schedule 2 directs attention to s 140GB of the Migration Act. This section at the relevant time provided that the regulations may establish a process for the Minister to approve a person's nomination. The regulations did provide prescribed criteria at the time.
Relevantly, reg 2.72 of the Migration Regulations at the time provided:
Criteria for approval of nomination - Subclass 457 (Temporary Work (Skilled)) visa
(1) This regulation applies to a person who is:
(a) a standard business sponsor; or
(b) a party to a work agreement (other than a Minister);
who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Temporary Work (Skilled)) visa.
(2)For subsection 140GB(2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
…
(10) If the person is a standard business sponsor - the Minister is satisfied that:
…
(f)the position associated with the nominated occupation is genuine; and …
I have emphasised the words of particular importance to the circumstances of Ms Quoraishi.
As can be seen, a proper reading of those provisions indicates that unless the Minister has approved a nomination by a proposed sponsor, a visa applicant cannot satisfy the criteria of cl 457.223(4)(a) of the prescribed regulations, and cannot satisfy the primary criteria for the grant of a 457 visa.
The relevant events - the delegate's visa refusal decision
Ms Quoraishi is a citizen of Bangladesh, who arrived in Australia on a student visa on 18 May 2014. Mr Nurunnabi is her husband, and he arrived in Australia on 30 April 2011. He is also a citizen of Bangladesh. The couple have three children. Two are the third and fourth appellants respectively, and Ms Quoraishi is their litigation guardian in this proceeding. Their third child is not a party to the proceeding.
On 1 June 2016 Ms Quoraishi applied for a 457 visa. However, All Building Trades did not have an approved nomination for Ms Quoraishi at the time. This was raised with Ms Quoraishi on a number of occasions in correspondence from the Department in which she was advised to raise this issue directly with All Building Trades.
On 21 September 2017 All Building Trades filed a nomination application relating to Ms Quoraishi (this is referred to in the Tribunal's reasons, discussed further below). The second, third and fourth appellants were included in the nomination application as members of the family unit. The nomination was refused, as is apparent from the fact that a review application was apparently brought by it in the Tribunal.
On 5 February 2018 a delegate of the Minister refused to grant Ms Quoraishi's 457 visa on the basis that they were not satisfied that Ms Quoraishi met cl 457.223(2)(b) and cl 457.223(4)(a) of the Migration Regulations as she was not the subject of an approved nomination. It followed that the other appellants were also refused 457 visas as their applications depended upon the outcome of Ms Quoraishi's 457 visa application.
The Tribunal's decision to affirm
On 23 February 2018 the appellants applied to the Tribunal to review the delegate's refusal to grant the 457 visas.
On 19 November 2019 the Tribunal sent a letter to the appellants' migration agent inviting the appellants to attend a hearing on 3 December 2019. The letter explained that if the appellants could not attend the hearing it may make a decision on the review without any hearing. It appears that it was intended that the hearing comprise a combined scheduled hearing for both All Building Trades' review application and for the appellants' review application.
On 2 December 2019 the migration agent informed the Tribunal that All Building Trades and the appellants no longer wished to attend the hearing because they were not able to provide further information and so had no reason to be present at a hearing. The migration agent confirmed on the following day that All Build Trade and the appellants requested that the Tribunal decide the matters on the papers.
On 6 December 2019 the Tribunal affirmed the delegate's decision not to approve All Building Trades' nomination application. The delegate decided not to approve the nomination on the basis that it did not satisfy reg 2.72(10)(f) of the Migration Regulations. That is, the delegate did not consider the position associated with the nomination to be genuine.
On 10 December 2019 the Tribunal informed the appellants that the delegate's decision to refuse All Building Trades' nomination application had been affirmed by the Tribunal, and so its application for nomination of Ms Quoraishi was not approved. It invited the appellants to comment on that adverse information, but they provided no response. Accordingly, and having referred to s 359C of the Migration Act (failure to give information, comments or response in response to a written invitation) the Tribunal decided to proceed with its determination without taking further steps to obtain any comment.
On 17 January 2020 the Tribunal affirmed the delegate's decision to not grant the 457 visas as the requirements of cl 457.223(4)(a) were not met. No claims had been made in relation to any other visa streams, and there was no evidence that the appellants would be able to satisfy the specific criteria for those streams.
Decision of the Federal Circuit Court
On 12 February 2020 the appellants applied to review the Tribunal's decision in the (then) Federal Circuit Court. The appellants relied on three purported 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 contracts.
3.Applicant is highly experienced and have been associate with company working as building associate from May 2014.
The primary judge found that the appellants failed to identify any error on the part of the Tribunal and dismissed the review application: Quoraishi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3148. The relevant reasons of the primary judge are extracted as follows:
[40]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.
[41]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.
[42]The grounds of review are, accordingly, dismissed.
[43]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.
[44]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.
[45]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.
Grounds of appeal before this Court
The appellants rely on two purported grounds of appeal in their notice of appeal, but those grounds distil to an assertion that they were denied procedural fairness by the primary judge. During the hearing Ms Quoraishi and Mr Nurunnabi both sought to retract any criticism of the primary judge and contended that they respected his decision. However, the appeal having been instituted, and having regard to the fact that they are self-represented, I consider it appropriate to in any event address that contention. I do so by summarising the Minister's submissions, which I consider accurately collect and address any assertions that might have been made, having regard to the published reasons.
The Minister contends that procedural fairness was plainly afforded to the appellants by the primary judge, having regard to the following:
(a)the appellants were given the opportunity to file an amended application, affidavit evidence and written submissions, but they did not do so;
(b)the matter was originally listed in the Federal Circuit Court for hearing on 16 September 2020, and the appellants sought a three-month adjournment on the basis that the first appellant would soon give birth, an adjournment that was allowed with the matter then relisted to 18 November 2020;
(c)the appellants were assisted by a Bengali interpreter;
(d)although Ms Quoraishi did not have the Court Book or the Minister's submissions with her at the hearing, the primary judge was satisfied that she had received all relevant materials, and to assist the appellants, the primary judge asked the Minister's counsel to summarise their submissions in detail and highlight any references to the Court Book (a course that was undertaken); and
(e)the primary judge noted that the appellants were self-represented, gave the appellants an opportunity to elaborate and further particularise their grounds, and explained the possible categories of jurisdictional error to the appellants.
I accept those submissions. There is nothing before this Court that suggests that the appellants were denied procedural fairness by the primary judge and to the contrary, the published reasons indicate considerable care in this regard.
Having regard to the fact that the appellants are unrepresented, I have also considered whether there might be any other matter that appears in the primary judge's reasons that suggests error.
However, it is apparent that the delegate's decision on All Building Trades' application, founded as it was on the non-satisfaction of reg 2.72(10)(f), left Ms Quoraishi in a position where her own application was doomed to fail, unless the decision on All Building Trades' application was set aside by the Tribunal.
That decision was not set aside by the Tribunal. Rather, the Tribunal, affirmed the delegate's decision to reject All Building Trades' application. Although the Tribunal's reasons relating to the All Building Trades' application were not before the Court, it is apparent from the reasons relating to Ms Quoraishi's application and the communications to her from the Department and the Tribunal that it was dismissed.
All Building Trades did not seek review of the Tribunal's decision before the Federal Circuit Court.
The absence of any further review or appeal by All Building Trades means that it remains the case that it did not obtain a nomination approval for Ms Quoraishi. Absent such approval, Ms Quoraishi was unable to meet the criteria for her application. It followed that the second third and fourth appellants were similarly unable to meet the criteria for their visas.
There is no error disclosed by the primary judge's decision in circumstances where the Tribunal's decision was clearly correct, having regard to the statutory provisions.
Outcome
It follows that no jurisdictional error on the part of the Tribunal has been disclosed. It also follows that no error on the part of the Federal Circuit Court has been established.
Ms Quoraishi's appeal must be dismissed. And so it follows that the appeals of all appellants must be dismissed.
I formally note that counsel for the Minister suggested to Ms Quoraishi and Mr Nurunnabi during the hearing that in all the circumstances they might benefit from seeking advice from a properly qualified and experienced migration agent.
Costs
Costs should follow the outcome in the usual way. The Court has a broad discretion in relation to costs and it is permitted and open to fix costs in appropriate cases such as the present matter.
The Minister requested that costs be fixed at $4,000. The amount sought is less than the amount that can be claimed in a short form bill for an appeal involving a migration decision that is dismissed after hearing ($7,241 as set out in the Federal Court Rules2011 (Cth), Schedule 3, Item 15) and I accept the Minister's submission that $4,000 is reasonable and proportionate in the circumstances of the proceeding.
There will be orders accordingly.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith. Associate:
Dated: 2 September 2022
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