Salam v Minister for Immigration and Border Protection
[2014] FCA 1263
•12 November 2014
FEDERAL COURT OF AUSTRALIA
Salam v Minister for Immigration and Border Protection [2014] FCA 1263
Citation: Salam v Minister for Immigration and Border Protection [2014] FCA 1263 Appeal from: Salam v Minister for Immigration & Anor [2014] FCCA 1799 Parties: ABDUL SALAM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: NSD 860 of 2014 Judge: NICHOLAS J Date of judgment: 12 November 2014 Legislation: Migration Regulations 1994 (Cth) Sch 2, cls 856.213 and 856.221 Date of hearing: 12 November 2014 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 10 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms A Wong of DLA Piper Australia Solicitor for the Second Respondent: The second respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 860 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: ABDUL SALAM
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
12 NOVEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 860 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: ABDUL SALAM
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
12 NOVEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant applied for an Employer Nomination (Residence) (Class BW) (Subclass 856) visa. A delegate of the Minister refused the application. Following a review, the Migration Review Tribunal (the Tribunal) affirmed the delegate’s decision. The appellant then brought a proceeding in the Federal Circuit Court seeking judicial review of the Tribunal’s decision. After a hearing of the proceeding, the primary judge (his Honour Judge Manousaridis) dismissed the appellant’s application with costs. The appellant now appeals against the primary judge’s orders.
The appellant lodged his application for a visa on 26 October 2011. The Tribunal’s decision was given on 19 December 2013. The criteria that the appellant was required to satisfy if he was to obtain a Subclass 856 visa included:
·that at the time of the application, the appellant had been nominated by an employer, in accordance with sub-regulation 5.19(2) for an appointment in the business of that employer (see cl 856.213(a) of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations); and
·that at the date of the decision, such appointment:
(a) has been approved;
(b) has not been withdrawn;
(c) continues to satisfy the criteria for approval; and
(d) is still available to the appellant
(see cl 856.221 of Sch 2 to the Regulations).
In this case the appellant was nominated by a company called Flame Tree Vietnamese Restaurant Pty Ltd (Flame Tree) which lodged an application nominating the position of cook as an approved appointment and identifying the applicant as nominee. However, Flame Tree’s application was refused by a delegate of the Minister on 26 October 2012.
As a result of the refusal of Flame Tree’s application (which was not the subject of any application for review) the appellant was unable to satisfy the requirements of cl 856.221 because the proposed appointment of the appellant by Flame Tree was not an approved appointment. The delegate rejected the appellant’s application, and the Tribunal affirmed the delegate’s decision, on account of the appellant’s inability to satisfy the requirements of cl 856.221.
The primary judge referred to the two grounds of review relied upon by the appellant and concluded that neither stated any arguable grounds of review. The grounds of review are reproduced in para [12] of the primary judge’s reasons. I do not propose to set them out here. As his Honour pointed out, both grounds were directed to errors said to have been made by the delegate.
However, the primary judge read the grounds of review as if they attributed error to the Tribunal rather than the delegate. So read, the grounds of review suggested that the Tribunal had misunderstood the requirements of cl 856.221.
Having referred to cl 856.213 and cl 856.221 of Sch 2 of the Regulations, his Honour concluded:
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.
The appellant’s notice of appeal merely states “[t]hat the Federal Circuit Court made an error in finding that there is no jurisdictional error”. This proposition was not developed in any written or oral submission.
There is no basis for finding that the primary judge’s decision was affected by error or that the Tribunal misunderstood the requirements of cl 856.221. I agree with his Honour’s conclusion and the reasons given by him.
The appeal will be dismissed. The appellant must pay the first respondent’s costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 21 November 2014
0
0
1