Rehan v Minister for Home Affairs

[2019] FCCA 1948

FEDERAL CIRCUIT COURT OF AUSTRALIA

REHAN & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1948

Catchwords:
MIGRATION – Review of Administrative Appeal Tribunal decision – subclass 457 visa – no matter of principle.

Legislation:

Migration Act 1958, ss.140GB, 359A

Federal Circuit Court of Australia Act 1999, s.17A

Migration Regulations 1994, reg.2.72(1), sch.2 cl.457.223
Federal Circuit Court Rules 2001, r.13.10

First Applicant: MUHAMMAD REHAN

Second Applicant: RAMSHA REHAN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 687 of 2019

Judgment of: Judge Cameron

Hearing date: 24 June 2019

Date of Last Submission: 24 June 2019

Delivered at: Sydney

Delivered on: 24 June 2019

REPRESENTATION

The first applicant appeared in person.

Solicitors for the respondents: Mr A. Markus of Australian Government Solicitors

ORDERS

1. Pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001, the application filed on 18 March 2019 be dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $3,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 687 of 2019

MUHAMMAD REHAN

First Applicant

RAMSHA REHAN

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The first applicant is a citizen of Pakistan who lodged an application for a Temporary Business Entry (Class UC) (subclass 457) visa on 25 December 2016.  His wife, the second applicant, was included in the application as a member of his family unit.  On 20 October 2017 the application was refused by a delegate of the first respondent (“Minister”).  On 9 November 2017 the applicants applied to the second respondent (“Tribunal”) for a review of that departmental decision.  They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision. 

2. On 4 June 2019 the Minister filed an application in a case seeking summary dismissal of the proceeding on the basis that it has no reasonable prospects of success. In that regard he relied on r.13.10(a) of the Federal Circuit Court Rules 2001 (“Rules”). The matter is before the Court for consideration of that interlocutory application.

3. For the reasons which follow, the applicants’ application will be dismissed and the Minister will have the orders which he seeks in his application in a case.

RELEVANT PROVISIONS

1. Section 17A of the Federal Circuit Court of Australia Act 1999 relevantly provides:

   17A  Summary judgment

   …

   (2)  The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:

   (a)  the first party is defending the proceeding or that part of the proceeding; and

   (b)  the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

   (3)  For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

   (a)  hopeless; or

   (b)  bound to fail;

   for it to have no reasonable prospect of success.

2. Rule 13.10 of the Rules relevantly provides:

   13.10  Disposal by summary dismissal

   The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:

   (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

   …

3. At the time of the first applicant’s visa application, clause 457.223(4)(a) of sch.2 to the Migration Regulations 1994 (“Regulations”) relevantly provided:

   Standard business sponsorship

   (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; and

BACKGROUND FACTS

1. The history of the applicant’s application for a Temporary Business Entry (Class UC) visa was summarised by the Tribunal in its decision as follows:

   a)on 25 December 2016 the applicant applied for a Temporary Business Entry (Class US) (Subclass 457)  visa;

   b)the applicant applied for the visa on the basis of a nomination by Yellow Trading Pty Ltd.  The nomination was refused by the Department;

   c)on 20 October 2017 the ministerial delegate refused to grant the visas on the basis that cl.457.223(4)(a) of sch.2 to the Regulations was not met because the nomination in respect of the first applicant was not approved;

   d)On 9 November 2017 the applicants applied to the Tribunal for a review of the departmental decision;

   e)on 20 November 2018 the Tribunal wrote to the applicants pursuant to s.359A of the Migration Act 1958 (“Act”) and invited them to provide comments on information it considered to be relevant.  The Tribunal noted that departmental records had indicated that the most recent nomination in relation to the applicant, for the purposes of the 457 visa, made by Yellow Trading Pty Ltd, had been withdrawn on 27 November 2017;

   f)on 4 December 2018, the applicant had written to the Tribunal and advised that his Australian employer was willing to sponsor him and requested an extension of time to provide evidence of a new nomination;

   g)the applicant appeared before the Tribunal on 5 February 2019;

   h)at the hearing the Tribunal noted that since the legislative amendments that had come into effect on 18 March 2018, there was no provision in the legislation for someone in the first applicant’s circumstances to obtain a nomination that could support a pending application for a subclass 457 visa;

   i)The Tribunal also noted that the applicant had given evidence at the hearing noting that his spouse and children had travelled outside Australia and were not able to return due to the visa status of the children.

2. In his affidavit affirmed 4 June 2019, filed in support of the Minister’s application in a case, Mr Markus the Minister’s solicitor deposed:

   4.Insofar as the application is purported to have been brought by the second applicant … departmental [Department of Home Affairs] records show that the second applicant departed Australia on 17 January 2018, is presently offshore, and has no current rights to re-enter Australia. …

The Tribunal’s decision and reasons

1. The Tribunal found that the first applicant did not meet the requirements of cl.457.223(4)(a) of the Regulations for the standard business sponsor stream. In this regard, the Tribunal noted that the first applicant was not the subject of a current, approved nomination for the purpose of a 457 visa and could not meet the requirements of cl.457.223(4)(a).

2. The Tribunal also noted that because the first applicant had not met the requirements for the granting of a visa it had to affirm the decision in respect of the second applicant.

THE PROCEEDING IN THIS COURT

1. In the application commencing these proceedings the applicants alleged:

   1.Delegate/Decision makers Failed to recognise and consider visa applicants (me and my family members) ongoing circumstances

   2.Applicant’s (My) Character throughout the stay in Australia

   3.Applicants past study history and hardship faced by Applicant and his family during the premature birth of his twins in Sydney Australia.

   4.Delegate failed to consider and recognize the visa applicant as been victim of the 457 visa program - as visa applicants (we – Me and My family) were at the receiving end of the injustices done by the previous employers and their agents. (Errors included)

CONSIDERATION

1. As the Minister argued in support of his interlocutory application, the grounds pleaded in the initiating application do not engage with the basis upon which the Tribunal found that the delegate’s decision had to be affirmed.  In the application commencing this case, a number of matters relating to the particular circumstances of the applicant and his family were raised, but the only thing which was relevant to the Tribunal in the applicant’s circumstances was the absence of a nomination. 

2. In the absence of a nomination, there was no chance that his visa application could be approved and there was no alternative for the Tribunal but to affirm the delegate’s decision.  As I have said, the grounds raised by the applicants in the initiating application do not engage with that reality, and for that reason, the application has no prospects of success as currently pleaded. 

3. In any event, as the Tribunal noted, the regulations changed in March last year and it is now no longer possible under the regulations for a person to obtain an approved nomination under s.140GB of the Act, and most critically reg.2.72(1) of the Regulations, to support a 457 visa application which remains to be finally determined. So the applicants’ situation, even were the matter to be returned to the Tribunal, would be no better than it is now.

4. In the circumstances, I accept the Minister’s argument that the application has no reasonable prospects of success and in the circumstances it must be dismissed pursuant to r.13.10 of the Rules.

COSTS

1. As the application is to be dismissed, the Minister has sought an order for his costs.  There is nothing in the conduct of this proceeding or anything which has been put to me that would suggest that costs should not follow the event as they would in the ordinary course.  The Minister seeks the amount of $3,100 and that seems to me to be a reasonable sum in the circumstance, particularly noting that it is, as I understand from Mr Markus, less than scale.

CONCLUSION

1. Consequently the orders today will be that:

   (1)the application filed on the 18 March 2019 be dismissed; and

   (2)the applicants pay the first respondent’s costs fixed in the amount of $3,100.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  17 July 2019