Rana v Minister for Immigration

[2020] FCCA 2605

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANA & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2605

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of skills residence visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.360, 425, 476

Cases cited:

NAIS v Minister for Immigration (2005) 228 CLR 470
SZBEL v Minister for Immigration (2006) 228 CLR 152

First Applicant: NAVEED AKHTAR RANA

Second Applicant: SHAZIA RANA

Third Applicant: ANOOSH RANA

Fourth Applicant: MAHEEN RANA

Fifth Applicant: HAMNA RANA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 277 of 2020

Judgment of: Judge Driver

Hearing date: 16 September 2020

Delivered at: Sydney

Delivered on: 16 September 2020

REPRESENTATION

Solicitors for the Applicant: Mr Warraich of Huk Legal

Solicitors for the Respondents: Ms Saunders of Minter Ellison

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The first and second applicants, being the adult applicants, are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 277 of 2020

NAVEED AKHTAR RANA

First Applicant

SHAZIA RANA

Second Applicant

ANOOSH RANA

Third Applicant

MAHEEN RANA

Fourth Applicant

HAMNA RANA

Fifth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. The principal applicant, Mr Rana, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 January 2020.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants business skills residence visas.  There were five applicants before the Tribunal, the principle applicant being Mr Rana and the other applicants being members of his family group.  All of the visa applicants are applicants before this Court.

2. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 1 September 2020, which  I adopt.

3. Mr Rana is a male citizen of Pakistan, the second applicant is his wife and the third, fourth, and fifth applicants are their daughters. On 4 September 2015, the applicants applied for a Business Skills (Residence) (Class DF) Business Owner (subclass 890) visas (business skills visas).[1] In that application, the applicants nominated National Protection Group Australia Pty Ltd (NPG) as his main business, which was a security services company.[2]

   [1] Court Book (CB) 26-48

   [2] CB 121

4. On 31 May 2018, the Minister’s Department wrote to the applicants inviting them to comment on adverse information received by the Minister’s Department,[3] namely that the purported employees provided information about the running of the business which was inconsistent with the information provided by the applicants in respect of the applicant's management role in the business. On 27 June 2018, the applicants provided a response.[4]

   [3] CB 171-175

   [4] CB 176-187

5. On 12 January 2019, the delegate refused to grant the applicants business skills visas, finding that Mr Rana did not maintain direct and continuous involvement in the management of the business and therefore did not meet clause 890.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Migration Regulations).[5]

   [5] CB 201-210

6. On 23 January 2019, the applicants sought review of the delegate's decision with the Tribunal.[6]

   [6] CB 211-213

7. On 28 October 2019, the applicants were invited to a hearing before the Tribunal on 26 November 2019 in order to provide evidence and make arguments in support of their application.[7]

   [7] CB 252-253

8. On 25 November 2019, Mr Rana’s representative provided the Tribunal with a bundle of supporting documents which was in excess of 500 pages.[8] Within these supporting documents was a statutory declaration from Mr Rana which indicated that he had sold NPG as the business required a Master Security Licence which could only be held by an Australian permanent resident or Australian citizen.[9] The person who had been nominated to hold the licence on behalf of Mr Rana surrendered the licence after the delegate's decision and accordingly, Mr Rana was unable to continue the business.

   [8] CB 275

   [9] CB 281

9. The hearing was subsequently adjourned until 13 January 2020 to allow the Tribunal to meaningfully consider the documents provided.[10]

   [10] CB 293

10. On 3 January 2020, the Tribunal sent Mr Rana “Pre Hearing Correspondence”[11] in which it advised that the evidence before it suggested that Mr Rana was unable to satisfy the requirements of clause 890.221 of Schedule 2 to the Migration Regulations as the business had been sold and that it was of the view that the representative's submissions which stated that Mr Rana continued to meet the legislative requirements due to the Minister’s Department's delay was wrong in law. Mr Rana's representative provided a response to this correspondence on 6 January 2020.[12]

    [11] CB 312-314

    [12] CB 320

11. On 13 January 2020, the applicants appeared before the Tribunal[13] and on 14 January 2020, the Tribunal affirmed the decision under review.[14]

    [13] CB 322-324

    [14] CB 401-408

Tribunal decision

1. The Tribunal noted that the evidence before it indicated that the main business nominated by Mr Rana, NPG, was sold by him in 2019 due to the extended time it took for the processing of the business skills visa and the resultant loss of security contracts critical to the business operation.[15]

   [15] CB 407 at [28]

2. The Tribunal was accordingly not satisfied that Mr Rana continued to have an ownership interest in one or more actively operating main businesses in Australia at the time of the Tribunal decision and therefore found Mr Rana no longer met clause 890.211, and thus failed to meet clause 890.221 of Schedule 2 to the Migration Regulations.[16] The Tribunal found that on the material before it, Mr Rana did not satisfy the requirements of the other subclasses in Class DF.[17]

   [16] CB 407 at [29]

   [17] CB 407 at [31]

3. The Tribunal considered whether it should refer the matter to the Minister for intervention, noting that it could not comment on what appeared to be an inordinate delay in the processing of the visa application.[18] The Tribunal accepted that this delay had an adverse impact on the nominated business,[19] but nonetheless found, having considered the evidence before it, this delay was not an unintended consequence of the legislative regime that would ground a referral to the Minister.[20]

   [18] CB 407 at [33]

   [19] CB 407 at [34]

   [20] CB 408 at [35]-[38]

The current proceedings

1. These proceedings began with a show cause application filed on 10 February 2020.  There is one particularised ground in that application: 

   The Tribunal denied the Applicant procedural fairness and / or breached s425 of the Migration Act.

   Particulars

   1. The Tribunal failed to consider all the relevant factors particularly the extended period of time the case officer took to decide the application. The application was delayed without any explanation and refused without proper reason.

   2. The applicant provided corroborative evidence of his absence from work on the date of immigration officers visit but tribunal and case officer failed to take the evidence into account.

   (errors in original)

2. The application was supported by a short affidavit filed with it.  I have before me as evidence the Court Book filed on 24 April 2020. 

3. Procedural orders were made by a Registrar in this matter on 5 March 2020.  The parties were given the opportunity to file and serve additional evidence and submissions.  While the Minister filed a Court Book and an outline of submissions, nothing further was filed by or on behalf of the applicants until the beginning of this month when a notice of address for service was filed by Mr Rana’s new legal representative.

4. The representative appeared on behalf of the applicants at today’s show cause hearing and sought an adjournment of eight to 12 weeks in order to research and file an amended application which would have directed close attention at the lengthy delay between the visa application and the Tribunal decision.  While that delay is acknowledged, the adjournment sought would not, in my view, serve any purpose.

5. It was plain before the Tribunal that Mr Rana could not qualify for the class of visa he sought.  Even if some error going to jurisdiction could be identified as a result of the delay in the visa assessment process, Mr Rana’s inability to qualify for the visa would remain.  That would, in my view, render remittal to the Tribunal futile. 

6. The Minister’s submissions deal with the ground of review advanced in the application as filed.  I agree with those submissions and adopt them. 

7. The sole ground alleges that the Tribunal denied the applicants procedural fairness and / or breached s.425 of the Migration Act 1958 (Cth) (Migration Act). This should be a reference to s.360 of the Migration Act.

8. To the extent the ground is a broad allegation of non-compliance with s.360, this is be unfounded for the following reasons:

   a)the applicants were clearly invited to, and attended, a hearing before the Tribunal to present arguments and evidence in compliance with s.360;[21] and

   b)furthermore, while the dispositive issue before the delegate was different to the dispositive issue before the Tribunal, the applicants were clearly put on notice of this.[22] Notably, the Tribunal advised Mr Rana in the pre-hearing correspondence that it considered Mr Rana was unable to meet clause 890.221 of Schedule 2 of the Migration Regulations in light of NPG being sold[23] and further, the decision record indicates that this issue was discussed during the hearing in referring to the pre-hearing correspondence.[24]

   [21] CB 322-324

   [22] SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ

   [23] CB 312

   [24] CB 405 at [14]

9. Particular 1 alleges that the Tribunal failed to consider all the relevant factors, particularly the extended delay. The Tribunal gave extensive consideration to the delay by the Minister’s Department,[25] and furthermore considered the evidence provided by the applicants as to whether the matter should be referred to the Minister.[26] This ground ultimately overlooks the dispositive issue before the Tribunal which was that Mr Rana was unable to meet clause 890.221 of Schedule 2 to the Migration Regulations. Further, circumstances where delay will vitiate the Tribunal's decision are rare.[27] The Minister’s Department's delay in this instance could not be said to have vitiated the Tribunal's decision.

   [25] see [9], [18], [33]-[34], and [38]

   [26] at [15]-[26] and [35]-[36]

   [27] NAIS v Minister for Immigration (2005) 228 CLR 470; [2005] HCA 77 at [5] per Gleeson CJ

10. Particular 2 alleges that the delegate and Tribunal failed to take into account evidence in respect of Mr Rana’s absence from work on the day of a site visit in 2017. To the extent Mr Rana is seeking to review the delegate's decision, this Court has no jurisdiction in respect of this decision under s.476 of the Migration Act. In respect of the Tribunal's decision, the Tribunal considered this evidence at [36], but ultimately, correctly, found Mr Rana was unable to meet clause 890.221 of Schedule 2 to the Migration Regulations.

11. As I put to Mr Rana’s representative this morning, only the Minister can solve Mr Rana’s problem.  The Minister is unconstrained by the visa criteria and could, for example, grant a visa based upon a new business proposal.  Much has changed in this country since the Tribunal decision on 14 January 2020.  Australia, like the rest of the world, has been grappling with the economic consequences of the COVID-19 pandemic.  If Mr Rana were able to present a new business opportunity generating employment it would, in my view, be highly appropriate for the Minister and his Department to give close attention to that proposal in the context of Mr Rana’s visa application.  That is, of course, beyond the scope of this proceeding. 

12. I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

13. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicants did not make any submissions on costs.

14. I will order that the first and second applicants, being the adult applicants, are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

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

Associate: 

Date: 21 September 2020