Sadek v Minister for Immigration and Anor

[2014] FCCA 2932

FEDERAL CIRCUIT COURT OF AUSTRALIA

SADEK v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2932

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

PRACTICE AND PROCEDURE – Observations on the interplay between migration law and industrial law.

Legislation:

Fair Work 2009 (Cth), ss.342, 362, 550

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.359A

Migration Regulations 1994 (Cth)

Applicant: FARID SADEK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1139 of 2014

Judgment of: Judge Driver

Hearing date: 12 December 2014

Delivered at: Sydney

Delivered on: 12 December 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Hooper of DLA Piper

INTERLOCUTORY ORDERS

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

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1139 of 2014

FARID SADEK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is a case with some troubling features.  It shows the potential for collision between migration law and industrial law.  The Migration Review Tribunal (Tribunal) was not in a position to deal with that potential collision. Neither can this Court, in these proceedings, resolve the problem.  There are, however, remedies available to the applicant, Mr Sadek, as I will explain.

2. On 2 April 2014, the Tribunal made a decision to affirm a decision of a delegate of the Minister not to grant Mr Sadek an employer nomination visa.  Mr Sadek applied for the visa on 10 February 2010, on the basis of proposed employment in the position of carpenter, with a business called MFS Building Construction Pty Ltd (MFS).  The position had been nominated for approval, as an approved appointment under regulation 5.19 of the Migration Regulations 1994 (Regulations).

3. The Minister’s delegate refused the visa application on the basis that Mr Sadek did not meet the visa criteria.  Mr Sadek sought review before the Tribunal and attended a hearing on 2 April 2014.  The Tribunal made its decision on the same day. 

4. Mr Sadek came to Australia from Lebanon.  He commenced work with MFS on 1 September 2006 as a carpenter.  MFS was approved by the Minister’s Department as Mr Sadek’s sponsor on 18 January 2010. 

5. Mr Sadek’s visa application had been initially rejected on the basis that he did not meet the English language requirement.  That decision, however, was set aside by the Tribunal, differently constituted.  When the matter returned to the Minister’s Department, because of the passage of time, the Department checked with Mr Sadek’s sponsor, whether he remained sponsored.

6. Mr Fred Ayoub of MFS replied to the Department by email in the following terms.  “We do NOT support the nomination for permanent visa for Mr Sadek.”[1] Mr Ayoub provided no explanation for that decision. On 25 February 2014, the Tribunal wrote to Mr Sadek, pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act), seeking comment on adverse information. In very simple terms, that information was that MFS was no longer available as his sponsor.

   [1] Court Book (CB) 78

7. On 10 March 2014, the Tribunal received a response to its request.  The response was that Mr Sadek had been injured at work and had sought workers’ compensation.  This had upset Mr Ayoub, who insisted that Mr Sadek withdraw his workers’ compensation claim or he (Mr Ayoub) would withdraw the nomination.  Mr Sadek continued with his claim and Mr Ayoub followed through with his threat and withdrew the nomination.  The letter also dealt with Mr Sadek’s personal and family circumstances. 

8. The explanation was confirmed in a statutory declaration made on 10 March 2014 by Mr Sadek.  Mr Sadek, at the Tribunal hearing he attended on 2 April 2014, confirmed the story.  The Tribunal did not challenge the information provided by Mr Sadek.  There would have been no basis for it to do so, without making some enquiry of Mr Ayoub.  It appears that no enquiry was made.

9. The Tribunal approached the matter on the simple basis that clause 856.221 of Schedule 2 to the Regulations required Mr Sadek to maintain his sponsor at the time of the decision on the visa.  Plainly, Mr Sadek could not meet that criterion.  Accordingly, the Tribunal affirmed the decision of the delegate.  It appears that Mr Sadek asked the Tribunal to refer his case to the Minister.  The Tribunal stated, at [33] of its reasons[2], that it had a discretionary power to do so, under guidelines issued by the Minister. The Tribunal elected not to exercise that discretion and noted that Mr Sadek could seek ministerial intervention, pursuant to s.351 of the Migration Act.

   [2] CB 134

10. These proceedings began with a show cause application, filed on 28 April 2014.  Mr Sadek continues to rely upon that application.  There are three grounds in the application:

    1. The Migration Review Tribunal was bias[ed] and did [not] see or accept the bad treatment of my original sponsor.

    2. The Migration Review Tribunal failed to give me a chance to have another sponsor and another chance to be approved.

    3. The Migration Review Tribunal did not see my compelling circumstances and failed to refer my case to the minister.

11. The application is supported by a short affidavit, which I received.  I also have before me the court book filed on 28 May 2014.  The parties made oral submissions.

12. I gave directions for the conduct of this matter on 2 July 2014.  Mr Sadek attended with the assistance of an Arabic interpreter.  I listed the matter for a hearing, pursuant to rule 44.12 of the Federal Circuit Rules 2001 (Cth) (Federal Circuit Court Rules) today.  Two days later, the Minister’s solicitor wrote to Mr Sadek at his nominated address for service, confirming the hearing arrangements[3]. 

    [3] See exhibit R1

13. Mr Sadek did not attend today’s hearing in person.  The Court was, however, successful in contacting him by telephone.  He told me that he was expecting a letter confirming the hearing arrangements.  He told me that he did not receive the letter from the Minister’s solicitors.  He took up the opportunity I afforded him to attend today’s hearing by telephone.  He confirmed the information he provided to the Tribunal about his employment history.  He is aggrieved that he was refused a visa in the circumstances.

14. I understand Mr Sadek’s grievance, but I am not persuaded that there is an arguable case that the Tribunal fell into jurisdictional error. 

15. The Tribunal was correct in identifying the issue it had to answer.  Relevantly, that issue was whether Mr Sadek was able to satisfy, at the time of the decision, the criterion he satisfied at the time of his visa application.  That was whether he continued to enjoy the sponsorship of MFS.  His problem was that he had lost that sponsorship.  The Tribunal was not concerned about the reason why he had lost that sponsorship.

16. In terms of the Tribunal’s obligations under the Migration Act, that lack of interest is explicable. While it appears the Tribunal has a discretion in ministerial guidelines to refer a problem case such as this to the Minister, it is under no statutory obligation to do so and indeed, the discretion does not appear to have a statutory basis.

17. Accordingly, Ground 3 in the application cannot succeed. 

18. Ground 2, similarly, must fail because the Regulations did not permit the Tribunal to afford Mr Sadek with the opportunity to change sponsors on the visa application in issue.

19. As to Ground 1, there is no substance to the allegation of bias. 

20. As I explained to Mr Sadek during the course of argument, there are two ways in which he can address his problem.  The first would be to take proceedings against his sponsor under the Fair Work 2009 (Cth).  It seems to me to be at least arguable that the withdrawal of employment sponsorship would constitute adverse action for the purposes of that Act[4].  I do not rule out the possibility that the Commonwealth of Australia could be joined as a respondent to such an action if it could be established that an agency of the Commonwealth, be it the Minister’s Department or the Tribunal, had been knowingly concerned in a breach of that Act[5]. 

    [4] See s.342 of the Fair Work Act

    [5] See ss.362 and 550 of the Fair Work Act

21. Secondly, it would be open to Mr Sadek to seek the Minister’s permission to make a second visa application with a new sponsor.  I understand that he has been continuously employed with various employers, save for periods when he was unable to work because of his injury.

22. In the circumstances of this case, I conclude that Mr Sadek has not established an arguable case of jurisdictional error by the Tribunal. 

23. Accordingly, I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules.

24. In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $3,400. 

25. Mr Sadek asked questions about Ministerial intervention and indicated that he might need to pay the costs by instalments.  He did not oppose the making of a costs order, in principle.

26. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,400.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  16 December 2014