Syed v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 112
Federal Circuit and Family Court of Australia
(DIVISION 2)
Syed v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 112
File number: SYG 1154 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 17 February 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) visa – whether Tribunal failed to consider compelling and exceptional circumstances – whether Tribunal acted contrary to evidence – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) cl 187.233 of Schedule 2
Cases cited: KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4
WZAVW v Minister for Immigration [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of last submissions: 7 February 2023 Date of hearing: 7 February 2023 Place: Parramatta Counsel for the Applicants: The First Applicant appeared in person. Solicitor for the Respondents: Ms Meaney. ORDERS
SYG 1154 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABU SAYEED SYED
First Applicant
FATIMA ZEENAT
Second Applicant
ABUZAR SYED (and another named in the Schedule)
Third 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 applicants are citizens of India. The first applicant is the husband of the second applicant, and the third and fourth applicants are their children.
On 28 February 2018, the first applicant applied for a Regional Employer Nomination (Permanent) (Class RN) visa (“Regional Employer visa”). The second third and fourth applicants were joined to the first applicant’s visa application as secondary applicant, being members of a family unit. On 20 April 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicants their Regional Employer visa.
On 3 May 2019, the applicants sought merits review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”). On 1 June 2021, the Tribunal affirmed the delegate’s decision not to grant the applicants their Regional Employer visa.
The applicants now seek 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 provide the background to the applicants’ Regional Employer visa application.
Paragraph 8 and 9 provide the legislative requirements for the grant of a Regional Employer visa. The applicable provision, cl 187.233 to Schedule of the Migration Regulations1994 (Cth) (“the Regulations”), requires that the position to which the visa application relates be the subject of an application for approval of a nomination in the Direct Entry stream.
At paragraph 10, the Tribunal states that in a letter dated 5 May 2021 it invited the applicant to comment on or respond to information. The particulars of that information are as follows:
•On 22 February 2018 JESS & JAMES HAIR AND MAKEUP PTY LTD (“the Nominator”) made an application listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa). The position was said to be Hair Salon Manager and nominated you. However, on 11 March 2019 a delegate rejected the application.
•The nominator sought a review of that decision, but the Tribunal fund that it did not have jurisdiction because the company had been deregistered.
•This means that there is no approved nomination, and no review of that nomination refusal pending, that concerns you.
At paragraph 11, the Tribunal records that they received a response from the first applicant on 18 May 2021 stating that “I need a time extension because my employer had a baby born last week and he is unable to provide me with the relevant documents relating to my case”. On 19 May 2021, the Tribunal provided an extension of time to 28 May 2021. The first applicant provided the Tribunal with a further statement as follows:
… That’s the reason he wants to hire someone who can at least stick to his employment for few years. However due to staff shortage and business already running very slow due to Drought followed by bushfire and then covid19which was very unfortunate for the business as Hair Salons were one of the hardest hit businesses in this Pandemic forced Mr Mubasheer to close his business. However, he is hopeful that once the pandemic finishes he can plan to open his business again.
At paragraph 13, the Tribunal noted that at the hearing, the first applicant said that when he applied for the position it had been genuine, however many businesses had been affected because of the COVID-19 pandemic. He stated that the nominator had an intention to offer the first applicant work as soon as possible, and that he wanted another chance and had done nothing wrong.
At paragraph 14, the Tribunal records Mr Mubasheer appeared as a witness and spoke to the difficulties he had with his business and the staffing issues. He said that he was sorry that he had not been able to nominate the applicant.
At paragraph 15, the Tribunal states that it advised the first applicant that the review application could not succeed and recommended that he consult with a migration agent or the Department of Immigration regarding other visa applications.
At paragraph 16, the Tribunal found that the nomination had not been approved, and has there had been no approved nomination, or review of that nomination refusal, cl 187.233 of Schedule 2 to the Regulations could not be met.
At paragraph 17, the Tribunal notes that the first applicant had only sought to satisfy the criteria for the grant of a Subclass 187 visa in the Direct Entry stream and that no claims had been made in relation to any other visa stream. As the requirements for the grant of a visa in the Direct Entry stream had not been met, the decision under review had to be affirmed.
Grounds of judicial review
The applicants’ grounds of judicial review are contained within an Initiating Application filed with the Court on 22 July 2021. The grounds are reproduced below as they appear in the application verbatim:
1. The Tribunal failed to consider the compelling and exceptional circumstances provided and such failure is serious.
2. The Tribunal also failed to accept that the position is still available to me and acted contrary to the evidence provided in writing or verbally.
No particulars were provided in respect of the above grounds.
The applicants’ submissions
The first applicant appeared before the Court on behalf of himself, his wife and his children. The first applicant appeared by videoconference facility and was unrepresented. The first applicant did not seek the assistance of an Interpreter and the Court was satisfied that the first applicant had sufficient English-language skills to be able to meaningfully participate in the hearing, present evidence and make arguments.
Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books together with a copy of the first respondent’s written submissions. The Court also ensured the first applicant had access to a pen and paper so that he could make notes during the course of the hearing should he so wished 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 process by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was filed upon the first applicant in support of their case. The first applicant complained that the case officer of the Department was unfair to him. The Court explained that it had no jurisdiction to review the case officer’s decision or action.
The applicant told the Court that his employer had been forced to shut down due to the effects of the pandemic. The applicant felt that the Tribunal hearing had been unfair as the applicant had attended by telephone. The first applicant employer had attended the hearing before the Tribunal and given evidence. The Court explained that, given the applicant did not have an approved employer sponsor, as required by the Regulations for the type of visa he sought, it was difficult to see how the Tribunal could have arrived at any different result other than to affirm the decision not to grant the applicant his visa. Having an approved employer sponsor was an essential requirement for an employer sponsored visa.
The first respondent’s submissions
Evidence was tendered to the Court that confirmed that the employer sponsor, Jess and James Hair and Makeup Pty Ltd ACN 617 930 864, had been deregistered as a company on 31 October 2020.
The first respondent submitted that the first ground of judicial review alleges that the Tribunal failed to consider compelling and exceptional circumstances, however no attempt had been made by the applicant to identify the particular circumstances which required consideration. Failure to particularise a ground of judicial review is a sufficient basis for it to be dismissed: (see; WZAVW v Minister for Immigration [2016] FCA 760 (“WZAVW”) at [35]).
It was submitted that the Tribunal did expressly refer to evidence that the applicant’s position was genuine, that the Nominator had been affected by COVID-19 and that the nominator intended to offer the applicant work (Court Book page 388). However, the Tribunal was only concerned with the question of whether the application met cl 187.233 of Schedule 2 to the Regulations.
The first respondent submitted that the evidence before the Tribunal indicated that the Nominator had been deregistered and that the applicant was not the subject of an approved nomination following a differently constituted Tribunal finding that it lacked jurisdiction to review the nomination refusal (Court Book page 240).
Ground two asserts that the Tribunal failed to accept that the position was still available to the applicant. The first respondent submitted that this ground is misguided in that the Nominator was deregistered and a differently constituted Tribunal found that it lacked jurisdiction to review the decision pertaining to the Nominator. The delegate’s decision to refuse the Nominator’s sponsorship was still in force at the time of the decision and the applicant was therefore not the subject of an approved nomination.
It was also submitted that, in the event that jurisdictional error was established, the application ought to be refused on the basis of futility. The fact that the Nominator no longer exists as a legal entity and that the nomination was refused is fatal to the applicant’s case even, if it were to be remitted back to the Tribunal.
CONSIDERATION
Ground one consists of a bland assertion that the Tribunal failed to consider the compelling and exceptional circumstances provided that such failure is serious. No particulars were provided as to what compelling and exceptional circumstances were not considered. This reason alone, the ground is liable for dismissal: (see; WZAVW).
In any event, the Court is satisfied that the Tribunal considered every relevant circumstance, noting that the issue for determination in this case was whether or not the applicant satisfied the conditions required for the grant of the Visa sought pursuant to cl 187.223 of the Regulations. In this case the first applicant did not. It is common ground that the employer nomination was refused by a delegate of the Department and that subsequently, the company that sought to sponsor the applicant was deregistered. In these circumstances, the applicant could not satisfy cl 187.223(2) of the Regulations in that, he did not have an approved employer nomination. The Court accepts the submission of the first respondent that that circumstance was fatal to the applicant’s case and the Tribunal had no option other than to affirm the decision to refuse the applicant his visa. Ground one has no merit.
Ground two asserts that the Tribunal also failed to accept that the position was still available to the applicant and acted contrary to the evidence. The Court is of the view that this ground misstates the evidence that was before the Tribunal. There was evidence before the Tribunal that the nomination by his employer had been refused by a delegate. Further, there was evidence that that the nominating company had been deregistered. The Court accepts the submission that the decision to refuse the nominator’s sponsorship was still in force at the time of the decision and the applicant was therefore not the subject of an approved nomination. Ground two has no merit.
The Court notes the further submission by the first respondent that the application should be refused on the basis of futility. The fact that the nominator no longer exists as a legal entity in the nomination was refused was fatal to the applicant’s case even if there was jurisdictional error on the part of the Tribunal, which was not conceded. The Court agrees with this submission and notes that the factual circumstances in this case can be distinguished from those in KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4 at [51] – [54]. In this case, when the matter was considered by the Tribunal, the employer sponsors nomination had been refused and further, the company was subsequently deregistered. The Court is satisfied that if the matter were remitted, the Tribunal what you have no option other than to make the same decision as it did previously.
As the second, third and fourth applicants visas depend upon the first applicant being granted a visa, their applications must also fail.
CONCLUSION
In these circumstances, the application must be dismissed. The Court will hear the parties as to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 17 February 2023
SCHEDULE OF PARTIES
SYG 1154 of 2021 Applicants
Fourth Applicant:
FASEEHA RASHISA SYEDA
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