Sadiq v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 113
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sadiq v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 113
File number: SYG 940 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 17 February 2023 Catchwords: MIGRATION – Administrative Appeal Tribunal – Regional Employer Nomination (Permanent) (Class RN) visa – whether Tribunal failed to take into account relevant information – whether Tribunal incorrectly applied law – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 48, 359A
Migration Regulations 1994 (Cth)
Cases cited: KC v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
WZAVW v Minister for Immigration [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submissions: 7 February 2023 Date of hearing: 7 February 2023 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Meaney. ORDERS
SYG 940 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WASEEM SADIQ
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
17 February 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The First Applicant is to pay the First Respondents costs, fixed in the amount of $6000.00.
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).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
introduction
The applicant is a citizen of Pakistan. He initially arrived in Australia on a Temporary Student visa.
On 28 August 2016, the applicant applied for a Regional Employer Nomination (Permanent) (Class RN) visa (“Regional Employer visa”). On 21 March 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his Regional Employer visa. The delegate refused the visa as the nomination application by the employer sponsor, Miss Masala Pty Ltd, for the position of cook had been refused
The applicant sought merits review of the delegate’s decision to the Administrative Appeal Tribunal (“the Tribunal”) in an application dated 7 May 2019. The Tribunal affirmed the delegates decision not the grant the applicant his Regional Employer visa on 27 April 2021.
The applicant now seeks judicial review of the Tribunal’s decision in this Court.
The administrative appeals tribunal decision
Paragraphs 1 to 7 of the Tribunal’s decision record detail the background to the applicant’s visa application.
At paragraph 8, the Tribunal states that the issue in the matter concerned whether the applicant’s application was the subject of an approved nomination. Paragraphs 9 and 10 explain the legislative requirements for the grant of a Regional Employer visa. Notably, cl 187.233 to Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) requires that a Regional Employer visa be the subject of an application for approval for a nomination.
At paragraph 11, the Tribunal states that on 22 February 2021 it wrote to the applicant, pursuant to s 359A of the Migration Act 1958 (Cth) (“the Act”), inviting him to comment on information relevant to the decision under review. The Tribunal noted that the application for approval of the nominated position of Cook by Miss Masala Pty Ltd (“Miss Masala”) had been refused by a delegate of the Minster for Immigration and that it had no jurisdiction to review the delegate’s decision.
At paragraph 12, the Tribunal states that the s 359A letter was sent to the applicant’s last known address. The applicant was given to 9 March 2021 to respond, otherwise a decision could be made without taking any further steps to obtain comments from the applicant, and the applicant would lose any entitlement to appear before the Tribunal in person and give evidence.
At paragraph 13, the Tribunal states that on 9 March 2021 it received a request from the applicant for an extension of time to collect “all relevant documents” in relation to his application. A copy of the applicant’s request is reproduced in the decision record.
At paragraph 14, the Tribunal states that it wrote to the applicant on the same day, granting an extension of time until 23 March 2021. The applicant was advised that the Tribunal hearing was listed for 10:00am on 26 March 2021. The Tribunal did not receive any further documents or comments from the applicant by 23 March 2021. As result, the Tribunal proceeded with the hearing based on the applicant’s comments from 9 March 2021.
At paragraph 15, the Tribunal records that the applicant stated, at the hearing, he had not provided further documents as the two weeks extension was not sufficient for him to gather the material. The applicant said that he felt that he had not been given any explanation as to why Miss Masala’s nomination application had been refused. The applicant states that the Department of Immigration (“the Department”) took too long to make its decision. He emphasised his belief that had the delegate made its decision within its advertised 4 to 6 month time frame that he would have had the opportunity to make a fresh application. The applicant referred to COVI-19 as a reason for not being able to leave offshore to make a new application and the effect of s 48 of the Act.
At paragraph 16, the Tribunal records that it told the applicant that there was no legal basis for the Tribunal to explain to him why the nomination application was refused. The applicant asked whether the Tribunal would seek an explanation from Department in relation to their processing times, however the Tribunal explained that it had no such power to enquire of the Department in that regard, and even if it did, that would not change the outcome of the nomination application.
At paragraph 17, the Tribunal noted that the applicant presented as a hard working employee who was doing his best to maintain his livelihood in Australia during the COVID-19 pandemic. The Tribunal emphasised that, whilst it was sympathetic toward the applicant, it had no discretion to go beyond the law in making its findings. The applicant conceded that he did not have an approved nomination and that he understood that this would be the reason for the Tribunal affirming the delegate’s decision under review.
At paragraph 18, the Tribunal notes that Miss Masala’s nomination application was refused by the Department and that that he did not have an approved employer nomination. As a result, the Tribunal found that the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations. At paragraph 19, the Tribunal states that in making this finding it took into account the comments made in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 that the visa application refers to a particular job with a particular employer at a particular point in time.
At paragraph 20, the Tribunal notes that because there is no approved employer nomination for the applicant’s visa application, the applicant could not satisfy cl 187.233. The Tribunal stated that Miss Masala’s nomination was linked to the applicant’s visa application under review, meaning that it could not, and now cannot be, approved.
At paragraph 21, the Tribunal notes that the applicant only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream and that no claim had been made in relation to any other visa stream. As the requirements for a visa in the Direct Entry stream had not been met the decision under review had to be affirmed.
Grounds of judicial review
The applicant’s grounds of judicial review are contained within an Initiating Application filed with the Court on 26 May 2021. They are as follows verbatim:
1. The decision of the tribunal dated 27/04/2021 is affected by the jurisdictional error because the tribunal failed to take in to account a relevant consideration.
2. The Tribunal member failed to determine that the appellant does not meet the requirements of cl.187.233(3) of the schedule 2 of the migration regulations.
No particulars were provided in respect of these grounds. In the applicant’s Affidavit however, he deposed that he “could not avail an opportunity to provide evidence in relation to the fact that the factors against [him] were beyond [his] control”.
The applicant’s written submissions
The applicant appeared before the Court unrepresented via a video conferencing facility. He told the Court he was currently offshore in Pakistan. He did not request the assistance of an interpreter. The Court was satisfied the applicant had sufficient English language skills to properly participate in the hearing present evidence and make submissions.
Prior to the hearing commencing, the Court inquired of the applicant is he had a copy of the relevant Court book and a copy of the Minister’s written submissions. He said he did not have a copy of the submissions as he was unable to access email in Pakistan. The Court adjourned for a short period to enable the First Respondent’s written submissions to be read to the applicant. Following that occurring the Court resumed. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing the Court explained it was undertaking judicial review not merits review and the difference between the two types of review. The Court also explained the manner in which the hearing would be conducted.
Despite Court orders, the applicant did not file or otherwise provide to the Court any written submissions or other material by way of affidavit evidence. The applicant told the Court that it took over two years for the Department to consider the application by his proposed sponsor and this resulted in the application being refused. Had the matter been considered promptly it may have been approved. The delay was not his fault. Had it been even refused quickly he could have made a further application for another visa.
The first respondent’s written submissions
In addition to the Court book the First Respondent tendered an affidavit of Michelle Harradine, solicitor in the employ of Mills Oakley solicitors. That affidavit annexed an extract from the ASIC data base indicating that the employer sponsor Mss Masala Pty Ltd ACN 603 866 913 was deregistered on 14 June 2020.
The first respondent submitted that neither of the applicant’s two grounds of judicial review demonstrate jurisdictional error.
It was submitted that ground one asserts that the Tribunal failed to take into account a relevant consideration, however no particulars were provided as to what information the Tribunal failed to consider. Failure to particularise is a sufficient basis for an application to be dismissed: (see; WZAVW v Minister for Immigration [2016] FCA 760 at [35]).
The first respondent submitted that the Tribunal did consider the oral evidence of the applicant but found that it had no discretion to ignore the issue of whether the applicant had met cl 187.233 of Schedule 2 to the Regulations. As the Tribunal did consider the relevant question concerning the nomination, there was no other consideration that it was required to consider. It was submitted that this ground does not more than invite the Court to engage in impermissible merits review: (see; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
The first respondent submitted that ground 2 asserts that the Tribunal failed to determine that the applicant did not meet the requirements of cl 187.233(3) of Schedule 2 to the Regulations. It was submitted that the applicant conceded at the hearing that he was not the subject of an approved nomination and this is what the Tribunal expressly found (Court Book page 101). It was submitted that this ground fails on a factual level.
The applicant’s complaint contained within his Affidavit filed 26 May 2021 is unclear and fails to establish jurisdictional error. The first applicant submitted that the Tribunal provided the applicant an extension of time to respond to the s 359A invitation, however no material was provided. It was further submitted that, considering the applicant’s own evidence that he did not have an approved nomination, the applicant could not have displaced the finding that cl 187.233(3) of Schedule 2 to the Regulations was not met.
The applicant’s Affidavit of 26 May 2021 also complains that the Tribunal had no evidence that the applicant did not meet the relevant criteria. It was submitted that the Tribunal’s finding was made relying on information that indicated that a differently constituted Tribunal found that it lacked jurisdiction to review the nomination refusal (Court Book pages 89-90) and the applicant’s own oral evidence (Court Book page 101).
The first respondent submitted that, even if jurisdictional error were to be established, relief should not be granted on the basis of futility. The applicant’s visa application cannot be assessed in relation to new nomination application lodged by a new employer: (see; Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267 at [82]-[90]). The refusal of the Nominator’s nomination application was fatal to the applicant’s case, and the Nominator has also subsequently been deregistered as a company.
Consideration
Clause 187.223 of Schedule 2 to the Regulations requires that, for the grant of a visa of the type sought by the applicant there must be an approved employer nomination that has not been subsequently withdrawn, or review that is pending, in relation to the position the subject of the visa application.
In this case the applicant did not have an approved employer nomination. The employer nomination for the position had been refused by the Department. That being the case the delegate had no option other than to refuse the visa application. Likewise, the Tribunal had no option other than to affirm the decision of the delegate.
Ground one is a bland assertion of jurisdictional error on the basis that the Tribunal failed to take into account a relevant consideration. As pointed out by the first respondent, a failure to provide particulars of the error alleged is sufficient to dismiss the ground of judicial review for that reason alone. Be that as it may be, on a fair reading of the Tribunal’s decision record, the Court is satisfied that the Tribunal considered all relevant matters and came to the only decision that was open to it, being to affirm the delegates decision. Without an approved employer nomination the applicant simply could not be granted the visa he sought. Ground 1 has no merit.
Ground two asserts that the Tribunal failed to determine that the applicant did not meet the requirements of Cl 187.223(3). This requirement is relates to the criteria that any nomination is not subsequently withdrawn. It was simply not necessary for the Tribunal to consider this requirement. The applicant conceded during the Tribunal hearing that he was not the subject of an approved nomination. There was thus no nomination that had been approved to subsequently be withdrawn. Ground 2 has no merit.
The Court notes what appears to be a third ground of judicial review contained within the applicant’s affidavit of 26 May 2021. This states that the Tribunal had no evidence that the applicant did not meet the relevant criteria for the grant of the visa he sought. I agree with the submission of the first respondent that the Tribunal was entitled to rely upon the findings of a differently constituted Tribunal that refused the employer’s nomination. This ground has no merit.
The first respondent also relies upon the ground of futility. That is, that as the applicant’s visa application was linked to a particular job with a particular employer, and the employer’s nomination has been refused and the company subsequently deregistered, the Tribunal would be bound to make the same decision. The first respondent relies upon Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267 at [82] – [90]. I am satisfied that the circumstances in this case can be distinguished from those considered by Rares J in KC v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4. In this case the employer has been deregistered. Further, no evidence has been provided as to any other employer sponsor.
conclusion
As none of the grounds of judicial review have any merit the application must be dismissed. The Court will hear the parties on the issue of costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 17 February 2023
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