Sami v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 791

Federal Circuit and Family Court of Australia

(DIVISION 2)

Sami v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 791   

File number(s):	DNG 2 of 2021
Judgment of:	JUDGE YOUNG
Date of judgment:	31 August 2022
Catchwords:	MIGRATION -  application for review of decision of the Administrative Appeals Tribunal refusing temporary residence transition stream visa – applicant failed to obtain relevant sponsorship – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 357, 359C, 360
Division:	Division 2 General Federal Law
Number of paragraphs:	11
Date of hearing:	31 August 2022
Place:	Darwin
The Applicant:	appearing on his own behalf
Solicitor for the Respondents:	Ms Vanderwolf of Clayton Utz

ORDERS

DNG 2 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ZISHAN SAMI

First Applicant

KANZA ZISHAN

Second Applicant

ARFA ZISHAN

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE YOUNG
DATE OF ORDER:	31 AUGUST 2022

THE COURT ORDERS THAT:

1.The application of 5 February 2021 be dismissed.

2.The First Applicant is to pay the costs of the First Respondent fixed in the sum of $7,853.

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
Ex Tempore

JUDGE YOUNG

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 January 2020 to affirm a decision of the Minister’s delegate (“the Delegate”) made on 12 January 2018 to refuse the applicants a temporary residence transition stream visa.  Mr Sami is the primary applicant and his wife and two children are the secondary applicants.  It is not in dispute that the issue in this case is the apparent inability of Mr Sami as the primary applicant to satisfy an essential criterion for the grant of the subclass 186 employer nomination scheme visa.

2. The background to the matter is as follows.  Mr Sami told me that he first came to Australia on a student visa in 2010.  In 2013 he obtained a 457 visa after having been sponsored by his then employer, Get Qualified, and he was employed as the manager of a call centre and in customer service.  In 2017 he decided to apply for the relevant subclass 186 employer nominated scheme visa, otherwise called a 186 visa temporary residence transition stream. 

3. Unfortunately for Mr Sami and his family, the employer went into liquidation in 2017 around about the time he applied for the visa.  The upshot of the visa application, which was made in September 2017, was that on 12 January 2018 the Delegate refused the visa application on the ground that there was not, as the migration regulations required, a position which was the subject of an employer nomination. In other words, the usual visa scheme requires sponsorship by an employer and the Delegate refused the application because Get Qualified did not nominate him for a position, presumably, as Mr Sami says, because it had gone into liquidation.  That is most unfortunate.

4. It seems that after the visa refusal in January 2018, Mr Sami moved to Alice Springs and found employment in customer service.  He told me, and I have no reason to doubt this, that he also had the agreement of his employer to sponsor him at that stage but following the COVID-19 pandemic he lost his job.  Mr Sami has found other employment. He told me that he completed a qualification as a community worker in 2019 and he is presently employed in various capacities with a community employer in Alice Springs.

5. Mr Sami also sought a review of the Delegate’s decision before the Tribunal. The Tribunal Member wrote to Mr Sami on 17 November 2020 pursuant to section 359, subsection (2) of the Migration Act 1958 (Cth) (“the Act”) inviting him to provide information. The information that he was invited to provide was, in short, evidence of a sponsor as required by one of the essential criterion for the grant of a visa. Mr Sami told the Tribunal member various things, but he did not say that he had a sponsor. He sought an adjournment of 45 days to seek sponsorship from his new employer, which I assume in 2020 was the community organisation he told me about today.

6. The Tribunal, having not received the only piece of information it required took the view pursuant to sections 359C and 360 of the Act that it was not required to hold a hearing. The reason for that being that Mr Sami, at the relevant time, was unable to provide evidence that he satisfied an essential criterion, that is, sponsorship of his position. It was unavoidable that the application would be refused or, as the Tribunal member put it, a hearing would be futile. The decision was therefore made without a hearing by the Tribunal on 11 January 2020 to affirm the decision of the Delegate and refuse the visa.

7. Mr Sami, in oral submissions to me today, told me in some detail about his past, his employment history and the unfortunate events which led to the liquidation or winding up of his previous employer.  He asked me today whether I would adjourn this matter for three months in order to obtain a sponsorship approval of the position that he presently holds with his present employer.  This request for an adjournment is some two and half years after the adverse decision of the Tribunal in order to obtain information about the very thing that all previous hearings have been about, that is, sponsorship, and lacks persuasiveness. I do not consider in the circumstances it would be appropriate to provide any adjournment or any further time, given the lack of evidence from Mr Sami to indicate there is any reasonable prospect within a reasonable time having information that would cure the deficiency in his visa application. I do not propose to adjourn the matter or give Mr Sami an opportunity to provide further information for that reason.

8. Mr Sami did not address the three grounds of review. I do not propose to read them in detail, but I will attempt to summarise each ground.  The first ground alleged that the Tribunal failed to consider relevant information and arrived at an unreasonable conclusion by overlooking the materials provided by the applicant. There was reference was made to the previous information that Get Qualified would sponsor him.  Given the fact that Get Qualified had gone into liquidation in 2017, well before the Tribunal hearing, there is no indication that the Tribunal ignored relevant information or arrived at an unreasonable conclusion.  It was obvious to the Tribunal that Mr Sami’s previous employer had gone into liquidation or for whatever reason was unable to employ him or to sponsor him.  There is no merit in the first ground.

9. The second ground alleged that the Tribunal failed to consider the circumstances beyond the applicant’s control in that the former sponsor had gone into liquidation.  It was alleged that the Tribunal should have given an adjournment to get a new sponsor and, indeed, Mr Sami asked for an adjournment of 45 days.  As a matter of reality, the Tribunal did not make a decision for another six weeks.  However, there was nothing before the Tribunal provided by Mr Sami other than assertion that he would be able, within that period, to remedy the deficiency that he did not have a sponsor.

10. In the two and a half years since the decision, Mr Sami has told me that he has been unable to obtain a sponsorship, though he asserted that if given some more time he would be able to. This alone reinforces the conclusion that, in my view, is inescapable, which is that Mr Sami did not provide any information to the Tribunal which would suggest that given a reasonable time he would be able to remedy the deficiency. The second ground is not made out.

11. The third ground is an allegation that the applicant was denied procedural fairness by denying him a hearing and it was said that the denial was in bad faith. The combination of the request for information pursuant to section 357 of the Act and the failure to provide that information, that is, information of a sponsorship led, by reason of the combination of sections 359C and 360, to the conclusion that Mr Sami was not entitled to a hearing under the Act. As there was a statutory regime which deprived Mr Sami of an entitlement to a hearing in those circumstances, there could not be procedural unfairness by virtue of the operation of the scheme. The third ground is not made out. The application is dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Young.

Associate:

Dated:       26 September 2022