Rehan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1898
•8 November 2019
FEDERAL COURT OF AUSTRALIA
Rehan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1898
Application for leave to appeal from: Rehan & Anor v Minister for Home Affairs & Anor [2019] FCCA 1948 File number: NSD 1073 of 2019 Judge: BROMWICH J Date of judgment: 8 November 2019 Catchwords: MIGRATION – appeal from orders of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – where first applicant applied for subclass 457 visa – where no error identified by the applicants – held: appeal dismissed Legislation: Migration Act 1958 (Cth) s 140GB
Migration Regulations 1994 (Cth) reg 2.72(1), reg 2.73(1), Sch 2, cl 457.223(4)(a)
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Date of hearing: 8 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Applicants: The First Applicant appeared in person for both Applicants Solicitor for the First Respondent: Mr J Hutton for and on behalf of the Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1073 of 2019 BETWEEN: MUHAMMAD REHAN
First Applicant
RAMSHA REHAN
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
8 NOVEMBER 2019
THE COURT ORDERS THAT:
1.Leave to appeal be refused.
2.The applicants pay the first respondent’s costs as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)BROMWICH J:
The first applicant, Mr Rehan, applied for, but was refused, a Temporary Business Entry (Class UC) (subclass 457) visa (457 visa). The second applicant, Mr Rehan’s wife, was included in the application as a member of his family group. She has left Australia and has not been able to return as she does not have a visa.
The decision was made on 20 October 2017 by a delegate of the first respondent, now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The reason for the refusal was that Mr Rehan did not have an approved nomination of a sponsor, an indispensable requirement for the grant of the visa. The relevant visa criterion, amongst others, was in cl 457.223(4)(a) of Sch 2 to the Migration Regulations 1994 (Cth):
(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; …
The applicants applied for merits review of the delegate’s decision by the second respondent, the Administrative Appeals Tribunal. The Tribunal confirmed with Mr Rehan in writing that he did not have an approved nomination of a sponsor, the nomination of his sponsor having been refused, and advised him at the Tribunal hearing on 5 February 2019 that he was unable to obtain a new nomination because his visa application was only pending, a consequence of legislative changes which came into effect on 18 March 2018.
It is not necessary to set out the detail of s 140GB of the Migration Act 1958 (Cth), nor reg 2.72(1) and reg 2.73(1) of the Migration Regulations as introduced with effect from 18 March 2018. Regulations 2.72(1) and 2.73(1) only allow for nomination in respect of, relevantly, a person who already holds a 457 visa. Accordingly, since 18 March 2018, it was not possible for Mr Rehan to obtain an approved nomination under s 140GB as required to be granted a 457 visa. This change was apparently due to the phasing out of 457 visas.
Mr Rehan indicated at the Tribunal hearing that he had received migration advice and was aware that without an approved nomination his merits review application would not be able to succeed. He gave an explanation for how that came about, but the reasons for that state of affairs do not affect the objective need to meet the visa criteria, for which there is no discretion, and therefore cannot have any bearing on the decision.
Unsurprisingly in these circumstances, on 25 February 2019, the Tribunal affirmed the delegate’s decision, giving the following key reasons (at [19] to [22]):
The Tribunal is sympathetic to the applicant in the circumstances, however, as explained to the applicant at the hearing, the Tribunal has no discretion in these cases and must make its decision in accordance with the legislative provisions. As the applicant is not the subject of a current approved nomination for the purposes of a 457 visa, it follows that the applicant cannot meet the requirements of cl.457.223(4)(a).
For the above reasons, the requirements of cl.457.223(4)(a) are not met.
The secondary applicant applied for the visa on the basis of being a member of the family unit of the first named applicant. As the first named applicant does not meet one of the requirements for the grant of the visa, the Tribunal must also affirm the decision in respect of the second named applicant.
For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
Undeterred by Mr Rehan’s evident knowledge that he could not obtain the visa sought by reason of not having a nomination and not being able to obtain one while his visa application was pending, on 18 March 2019 the applicants applied for judicial review of the Tribunal’s decision by the Federal Circuit Court of Australia. On 4 June 2019, the Minister applied for summary judgment. That interlocutory application was heard and granted on 24 June 2019, and the judicial review application was therefore summarily dismissed. In making that decision and making that order, the primary judge’s reasons concluded with the following (at [12] to [15]):
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.
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.
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.
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.
The applicants seek leave to appeal from the primary judge’s orders upon the basis stated in the application for leave to appeal before the Court that:
The Order of His Honour Judge Cameron is affected by error of law as His Honour failed to explain why the application filed on 18 March 2019 is dismissed. I do have an arguable case and upon receiving the judgment I will seek legal advice.
As the above reproduction of the primary judge’s reasons makes clear, his Honour clearly and succinctly explained why the judicial review application was summarily dismissed. The applicants have not provided any written submissions, nor is there any other indication of what the error by the primary judge is said to be.
In an affidavit affirmed on 6 July 2019 and filed on 8 July 2019, Mr Rehan deposes to:
(1)not being represented before the primary judge;
(2)not understanding why the judicial review application was dismissed;
(3)waiting for the judgment to seek legal advice from a barrister; and
(4)(nonetheless) asserting that he has an arguable case and asking to be able to go ahead with the (annexed draft) notice of appeal even though his wife is not in Australia.
The draft notice of appeal annexed to Mr Rehan’s affidavit and dated 1 July 2019 states as grounds of appeal:
[1]I have not yet received the judgment of His Honour Judge Cameron.
[2]When I appeared in Court I was not represented and was confused and now as soon as I receive the judgement of His Honour of the Federal Circuit Court as well as all the information from the Department of Home Affairs I will be in a position to argue my case because when I appeared before the Tribunal, the Member expressed sympathy but was unable to make a decision in my favour.
The Minister has filed written submissions, outlining the above circumstances, arguing that the proposed appeal must fail, and pointing out, correctly, that relevant factors to take into account in whether to exercise the discretion to grant leave to appeal include whether the primary decision is attended with sufficient doubt to justify its reconsideration on appeal, citing Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 as 398-9.
Mr Rehan, appearing unrepresented for himself and, without objection by the Minister, for his absent wife, was invited to explain what the error was on the part of the primary judge and also to make any submissions in response to the Minister’s written arguments. In substance, what Mr Rehan sought was a delay in the Court making a decision to facilitate him applying for a different visa, for which he said he would soon be eligible, accepting that there was no error on the part of the primary judge. I told him that this was not a proper basis for delaying my decision.
Far from there being any error on the part of the primary judge, his Honour was plainly correct. Leave to appeal must therefore be refused. The applicants must pay the Minister’s costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate:
Dated: 15 November 2019
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