SALAM v Minister for Immigration

[2014] FCCA 1799

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALAM v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1799

Catchwords:
MIGRATION – Review by Migration Review Tribunal of decision refusing applicant an Employer Nomination (Residence)(Class BW) visa (visa) – whether a nomination application by an employer must be approved at the time of decision for the granting of the visa – no jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth), regs.5.19(1), 5.19(2).
Schedule 2, cls.856.213, 856.213(a), 856.221.

Applicant: ABDUL SALAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 39 of 2014

Judgment of: Judge Manousaridis

Hearing date: 29 July 2014

Delivered at: Sydney

Delivered on: 12 August 2014

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms A Wong

DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 39 of 2014

ABDUL SALAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is not legally represented, applies for judicial review of a decision of the second respondent (Tribunal).

Background

1. On 26 October 2011 the applicant applied to the first respondent (Minister) for an Employer Nomination (Residence)(Class BW) visa (visa).

2. One of the criteria the applicant had to satisfy at the time of application was that prescribed by cl.856.213(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provides as follows:

   The applicant has been nominated by an employer, in accordance with subregulation 5.19(2), for an appointment in the business of that employer.

3. Another criterion the applicant had to satisfy, this time as at the date of decision, is that prescribed by clause 856.221. That clause provides that the appointment referred to in cl.856.213(a):

   (a)     has been approved; and

   (b)     has not been withdrawn; and

   (c)     continues to satisfy the criteria for approval; and

   (d)     is still available to the applicant.

4. Subregulations 5.19(1) and (2) of the Regulations provide:

   (1)A person (a nominator) . . . may apply to the Minister for approval of the nomination of a position in Australia.

   (2)The application must:

   (a)be made in accordance with approved form 1395; and

   (b)be accompanied by the fee mentioned in regulation 5.37.

5. In his application for the visa, the applicant identified as the nominating business “Flame Tree Vietnamese Restaurant Pty Ltd”.

6. On 4 January 2013 a delegate of the Minister informed the applicant that his application for the visa was refused; and that it was refused because on 26 October 2012 the same delegate had refused the application Flame Tree Vietnamese Restaurant Pty Ltd made for the nomination of the applicant (CB93). The delegate refused the nomination because she “was not satisfied that the nomination met the relevant criteria for approval as set out in Australian migration law”. The applicant was informed of the delegate’s decision by letter dated 26 October 2012.

7. On 7 January 2013 the applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal noted it had evidence before it that indicated that at the time the applicant applied for the visa, Flame Tree Vietnamese Restaurant Pty Ltd had lodged an application nominating the position of cook as an approved appointment and identifying the applicant as nominee. The Tribunal found, however, that that application had been refused, and there was no information to indicate that Flame Tree Vietnamese Restaurant Pty Ltd applied for a review of that decision.

The Tribunal’s decision

1. At the hearing, the applicant informed the Tribunal that Flame Tree Vietnamese Restaurant Pty Ltd no longer operated a restaurant. A little later, it appears the applicant said that the restaurant did not open, but that the owner of the proposed restaurant operated other restaurants. The applicant suggested the Tribunal take evidence from the owner about the reasons the proposed restaurant did not open, which the applicant appeared to indicate was why the nomination application made by Flame Tree Vietnamese Restaurant Pty Ltd had been refused. The Tribunal declined to take such evidence because the issue in relation to the applicant’s visa was the fact that the nomination had been refused; the reasons why it was refused were not relevant.

2. Also at the hearing, the applicant presented evidence of an alternative employment offer. The applicant applied for an adjournment to obtain a new nomination approval for his proposed new employer. The Tribunal refused the application because it found the adjournment would be futile.

   As I put to the applicant at the hearing, I consider that the legislation requires that the appointment which is approved at the time of decision is the same appointment which is relied upon to meet the time of application criteria, and there[fore] a new appointment like the one he proposed could not assist the applicant in meeting the criteria for the visa.

   Having examined the wording of the time of application criterion in cl.856.213(a) and the time of decision criterion in cl.856.221, I consider it is clear that the appointment relied upon to meet the time of decision criterion must be the same appointment which is relied upon to meet the time of application criterion. This is explicit in the text of the provisions, where cl.856.221 refers expressly to ‘the appointment mentioned in cl.856.213’. . . .

3. The Tribunal, therefore, affirmed the delegate’s decision.

Grounds of Review

1. The application for review states two grounds of review:

   1.The delegate to the Minister (DIBP) failed to understand that I meet cl.856.221 of schedule 2 to the Migration Regulation 1994.

   2.The delegate to the Minister (DIBP) failed to justified [sic] that the application by Flame Tree Vietnamese Restaurant Pty Ltd for approval of a nominated position as an approved appointment under r 5.19and the applicant as a nominee.

2. At the hearing, each of these grounds was interpreted to the applicant. The applicant said he could not understand the first ground. As to the second ground, the only additional submission the applicant made was that he had an offer of employment from another employer, and he wished to have the opportunity to apply under the nomination of that employer. In response to that submission, I informed the applicant the Court did not have jurisdiction to grant the applicant a visa, and that its role was to consider whether the Tribunal made its decision relating to the applicant according to law.

3. The grounds of review contained in the application do not state any arguable grounds of review. They are directed to what the delegate did, not to what the Tribunal did. I will read the grounds, however, as being a claim that the Tribunal misunderstood or misapplied cl.856.221 of Schedule 2 to the Regulations.

4. Paragraph (a) of clause 856.213 of Schedule 2 to the Regulations requires that the “applicant has been nominated by an employer, in accordance with subregulation 5.19(2), for an appointment in the business of that employer”. That is a requirement that must exist at the time an application for the visa is made. Applying this criterion to the circumstances of this case, the applicant had to show that at the time he applied for the visa, an employer had made an application under r.5.19(2) of the Regulations to nominate the applicant for an appointment in the business of that employer. The applicant did satisfy this criterion. Flame Tree Vietnamese Restaurant Pty Ltd nominated the applicant for an appointment in its business.

5. Paragraph (a) of cl.856.221, on the other hand, requires that “the appointment mentioned in paragraph 856.213(a)” “has been approved”. The “appointment mentioned in paragraph 856.213(a)” refers to the appointment in the business of an employer for which the employer applied as at the time the applicant applies for a visa. Paragraph (a) of cl.856.221 requires that, at the time of decision, the application for the nomination of such appointment has been approved. Applying this criterion to the circumstances of this case, the applicant had to show that the application made by Flame Tree Vietnamese Restaurant Pty Ltd to nominate the applicant for an appointment in the business of Flame Tree Vietnamese Restaurant Pty Ltd position was approved. And the applicant had to show this was the case as at the date of decision. That criterion was not satisfied.

6. In my opinion, the Tribunal was correct to conclude that, as at the time it decided the application for review, it was necessary for the applicant to show that the application made by Flame Tree Vietnamese Restaurant Pty Ltd to nominate the applicant for an appointment in the business of Flame Tree Vietnamese Restaurant Pty Ltd had been approved and that, because the applicant could not show this, the applicant was not entitled to be granted the visa.

Disposition

1. In my opinion, the applicant has not established any jurisdictional error by the Tribunal.

2. I propose to order that the application be dismissed, and that the applicant pay the Minister’s costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 12 August 2014