Sadek v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 99
•14 February 2023
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sadek v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 99
File number(s): SYG 344 of 2021 Judgment of: JUDGE LAING Date of judgment: 14 February 2023 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicants Temporary Business Entry (Class UC) (Subclass 457) visas – where proposed employer did not have an approved nomination – allegation of negligence regarding former representative – whether any contended errors by the Tribunal occurred or were material – futility – application dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 11.10, 17.02
Migration Act 1958 (Cth) s 486C
Federal Court Rules 2011 (Cth) r 36.03
Migration Regulations 1994 (Cth) cl 457.223
Cases cited: KC v the Minister of Immigration, Citizenship and Multicultural Affairs [2023] FCA 4
Mamun v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 95
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501
Minister for Immigration and Ethnic Affairs v Wu Shan Laing, Huang Cheng Jiang and Liu Jun Liang [1996] HCA 6; (1996) CLR 259
Salh & Anor v Minister for Immigration & Anor [2019] FCCA 2096
Subramaniam v Minister for Home Affairs [2021] FCCA 355
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of hearing: 14 February 2023 Place: Sydney Solicitor for the First Applicant: The First Applicant appeared in-person. Solicitor for the Second Applicant: The First Applicant appeared in-person as the litigation guardian for the Second applicant. Solicitor for the First Respondent: Mr H Gao (HWL Ebsworth) appeared in-person. Solicitor for the Second Respondent: Submitting appearance, save as to costs. ORDERS
SYG 344 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AHMAD SADEK
First Applicant
SERENA SADEK
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
14 February 2023
BY CONSENT, THE COURT ORDERS THAT:
1.Pursuant to rule 11.10(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) the first applicant be appointed the litigation guardian of the second applicant, dispensing with the requirement under rule 11.10(2) of the Rules for the filing of an affidavit.
2.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs” dispensing with the need for filing any further document in this regard.
THE COURT FURTHER ORDERS THAT:
3.The application be dismissed.
4.The first applicant pay the first respondent’s costs fixed in the amount of $5,600.
5.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), orders 3 and 4 not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced and orders made.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE LAING
introduction
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicants Temporary Business Entry (Class UC) (Subclass 457) visas (457 visas).
BACKGROUND
The first applicant in these proceedings (Applicant) is a national of Lebanon. On 20 March 2017, he applied for the 457 visas on the basis of his proposed employment with VB Built Pty Ltd (Proposed Employer). The Applicant’s wife and daughter applied as members of the family unit.
By letter dated 5 February 2018, the Applicant was invited to comment on information that the Proposed Employer did not have an approved nomination for him at the date of the letter. This, it was noted, would mean that his visa application would be unable to be approved.
The Delegate refused the application on 5 June 2018. The Delegate observed that the Employer did not have an approved nomination in place for the Applicant. Accordingly, the Delegate found that the criterion in cl 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) could not be met.
On 14 June 2018, the applicants applied for review of the Delegate’s decision by the Tribunal. The Applicant attended a hearing before the Tribunal on 10 November 2020.
By letter dated 13 January 2021, the applicants were invited to comment on information that the Tribunal had, on 11 January 2021, affirmed the decision to refuse the Proposed Employer’s application for approval of a nomination. On 27 January 2021, the applicants’ representative informed the Tribunal that the applicants had been made aware that the Tribunal would therefore be required under law to refuse their application for review and had “no further comment to make”.
On 29 January 2021, the Tribunal affirmed the Delegate’s decision.
RELEVANT CRITERION
The criterion at issue before the Tribunal was cl 457.223(4)(a) of Schedule 2 to the Regulations, which provided:
457.223
…
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…
THE TRIBUNAL’s DECISION
The Tribunal set out the background to the matter at [1]-[9] of its decision. The Tribunal observed that the matter had been heard together with review of the decision to refuse the nomination. The Tribunal noted that it had written to the applicants after the nomination decision had been affirmed, inviting their response. The Tribunal stated that their representative had “correctly acknowledge[d]” that the Tribunal was unable to set aside the visa refusal decision in circumstances where the nomination refusal decision had been affirmed.
The Tribunal then reasoned as follows:
10.The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a) which requires that that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
11. As I have affirmed the decision not to approve the associated nomination application, I find that there is not an approved nomination of an occupation relating to the primary visa applicant.
12. For this reason the requirements of cl.457.223(4)(a) are not met, and it follows that the requirements of cl.457.223(4) are not 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. As cl.457.223 is an essential criterion for the grant of the visa in Mr Sadek’s circumstances, the visa must be refused.
13. The remaining visa applicants rely on their status as members of Mr Sadek’s family unit to satisfy the secondary criteria for the grant of visas. As Mr Sadek must be refused the visa, the remaining visa applicant’s will not satisfy cl.457.321 which requires they be members of the family unit of a person who holds the visa having satisfied the primary criteria.
On this basis, the Tribunal affirmed the Delegate’s decision.
Proceedings before the court
The Applicant and his daughter, the second applicant, commenced the proceedings before this Court through an application filed on 4 March 2021. The following was stated under the heading “Grounds of application” (reproduced verbatim):
1.The Tribunal refused the nomination made by Bass Elhashem even though he argued that the nomination is genuine. The Tribunal now affirmed the decision not to grant me temporary business entry by refusing the visa application.
2.The Tribunal decision is wrong and even though my sponsor's nomination was refused I hope that the Federal Circuit Court can quash the decision of the Tribunal because the relationship and nomination is genuine contrary to previous refusal of nomination.
3.My sponsor wishes to appeal the decision of the Tribunal regarding my nomination refusal therefore if the nomination is approved by the Court then this application will be also remitted to the Tribunal to be considered according to law.
Essentially, the grounds took issue with the fact that the applicants’ application for 457 visas was refused, in circumstances where they say that the associated nomination was genuine.
When the application to this Court was filed in March 2021, the applicants indicated that the Proposed Employer wished to seek review of the Tribunal’s decision on the nomination review.
The fundamental difficulty for the applicants is that the Proposed Employer does not appear to have done so. The nomination review decision is not the decision under review by the Court. The applicants have no standing to challenge the nomination review decision: see s 486C(2)(a) of the Migration Act 1958 (Cth) and Mamun v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 95 at [40].
Even if the applicants had standing to seek review of the nomination review decision, the matters they have raised appear directed towards revisiting the merits of the Tribunal’s decision. This Court has no power to review the factual merits of the Tribunal’s decision, or to set it aside based upon disagreement alone: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [31]. For completeness, I note that this Court also has no power to “approve” a nomination, as distinct from adjudicating an application for judicial review of the Tribunal’s decision.
In circumstances where the nomination had been refused, and that decision had been affirmed, the Applicant was unable to meet cl 457.223(4)(a) of Schedule 2 to the Regulations. This was an objective criterion for the grant of the visas.
I therefore accept the Minister’s submission that the Tribunal correctly applied the law in this case and reached a finding that was open to it in the circumstances.
At the hearing, the Applicant additionally submitted that he considered that his representative before the Tribunal had been negligent. He submitted that the representative’s email to the Tribunal saying that he had no further comment to make was incorrect and that he had, in fact, wished to make further comment. As I explained at the hearing, however, there is authority to the effect that negligence on the part of a representative, without more, is incapable of providing this Court with a basis for setting aside the Tribunal’s decision: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501 at [30] and [33].
The Minister submitted that remittal to the Tribunal would in any event be futile. There is support for this proposition in a number of previous decisions of this Court, including Salh & Anor v Minister for Immigration & Anor [2019] FCCA 2096 at [36]-[43] and Subramaniam v Minister for Home Affairs [2021] FCCA 355 at [21]. Such cases have found that, absent an approved nomination, upon remittal the Tribunal would have no other option than to affirm a 457 visa refusal considering changes that have been made to the legislative regime in the intervening period. However, recently in KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4, Rares J rejected a similar argument at [51]-[54]. At the hearing before this Court, the Applicant stated that his Proposed Employer would be willing to apply to this Court for review of the nomination decision if the Applicant’s application to this Court were successful.
However, for the reasons that I have given, I have ultimately found that no jurisdictional error can be demonstrated in respect of the Tribunal’s decision. It is therefore unnecessary to determine the question of futility.
conclusion
For these reasons, the application before this Court must be dismissed.
If successful, the Minister sought costs fixed in the amount of $5,600. I accept that this amount is reasonable, noting that it is substantially below the Court’s scale.
I will also make an order staying the entry of these orders until written reasons for judgment have been published and therefore made available to the parties.
25 I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 14 February 2023
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