Tariq v Minister for Immigration

[2018] FCCA 212

FEDERAL CIRCUIT COURT OF AUSTRALIA

TARIQ v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 212

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), cl.457.223 of Schedule 2
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases cited:
Minister for Immigration v Li (2013) 249 CLR 332
Minister for Immigration v Stretton [2016] FCAFC 11
Kaur v Minister for Immigration and Border Protection [2016] FCA 132
Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: RABIA TARIQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2554 of 2017

Judgment of: Judge Emmett

Hearing date: 30 January 2018

Date of Last Submission: 30 January 2018

Delivered at: Sydney

Delivered on: 30 January 2018

REPRESENTATION

Applicant: The applicant appeared in person

Solicitors for the Respondents: Mr Liam Dennis (Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2554 of 2017

RABIA TARIQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 11 August 2017, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 1 August 2017 that affirmed the decision by a delegate of the first respondent (“the Delegate”) refusing to grant the applicant a Temporary Business Entry (Class UC) visa (“the Visa”).

Background

1. The applicant is a citizen of Pakistan.

2. On 14 May 2012, the applicant applied for a Temporary Business Entry (Class UC) visa. The applicant’s son was included in that application as a member of the family unit.

3. On 9 November 2015, the Delegate refused to grant the visa on the basis that the applicant did not satisfy cl.457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

4. On 16 November 2015, the Tribunal received an application for review of the Delegate’s decision.

5. On 18 January 2017, the applicant appeared at a hearing before the Tribunal.

6. On 1 August 2017, the Tribunal affirmed the decision under review.

7. On 11 August 2017, the applicant filed an application in this Court seeking judicial review of the decision by the Tribunal.

Proceeding before this court

1. The applicant attended a directions hearing before a Registrar of this Court on 4 September 2017, on which occasion she was given leave to file an amended application and any further evidence and submissions in support of her application. I note that the applicant was also provided with the contact details of legal services providers at that directions hearing.

2. At the directions hearing at the request of the first respondent the matter was set down today for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) on the basis that the grounds of the application did not disclose an arguable case for the relief claimed. 

3. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

4. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

5. The applicant also filed at the same time a document that I accept to be submissions. It is a handwritten 4 page document and it essentially discloses the history of the applicant’s time in Australia and her efforts to meet the criteria for the visa for which she had applied.

6. The applicant was unrepresented before the Court this morning.

7. I explained to the applicant that the role of this Court was very different to that of the Tribunal, and that the only issue before this Court was whether or not the decision of the Tribunal was made according to law or was affected by a mistake that goes to the Tribunal’s jurisdiction.

8. I explained that rarely does disagreement with the findings and conclusions of the Tribunal establish by itself a mistake that goes to the Tribunal’s jurisdiction. 

9. The applicant sought to tender a new approval of nomination that she now has for a new business visa application. That document was objected to on the grounds of relevance. I explained to the applicant that such a document was not relevant to the issue before this Court and it was accordingly rejected.

10. However, as the new visa application may provide the applicant with an ability to pursue an application that may have better prospects of success than the present application before the Court, I stood the matter down for a short time to give her an opportunity to speak with the solicitor for the first respondent. 

11. The applicant indicated when she came back that she may still wish to proceed with her hearing. I indicated that if the applicant did proceed with her application and was unsuccessful, she was likely to be ordered to pay costs in accordance with the relevant costs schedule.

12. I said to the applicant that if she wished to withdraw her application and file a Notice of Discontinuance in Court today, whilst the first respondent may well still seek costs in the scale amount of $3667, the Court may make an award substantially less than that. I indicated that the amount I had in mind was $500.

13. I explained to the applicant that it may be in her interests and those of her son for her to withdraw this application and to pursue her present application for a 457 visa, in respect of which she appears to have an approved nomination.

14. The applicant asked if she withdrew her application, could she still appeal. I explained that she would not be able to do so. I also explained that if the applicant did appeal and was unsuccessful then her costs were only likely to be increased.

15. However, the applicant told the Court that she wished to proceed with her application. 

16. The applicant then confirmed that she relied on the grounds of her Amended Application filed on 21 September 2017 as follows:

    “1. Nomination was approved but visa was not granted.

    2. Fight for custody being single decision did not made on time and company shutdown.

    3. Because of changes in laws occupation came out from the list and application got invalid even my case was applied before the law came through.”

    (Errors in original)

17. The applicant also had an Affidavit that she filed on 13 October 2017 that annexed two letters from the Federal Member for Macarthur, Dr Mike Freelander. Both letters were dated 8 August; one was sent to the Administrative Appeals Tribunal and the other to the Minister for Immigration and Border Protection. The letters were in the same terms and essentially requested that the applicant’s case be considered and resolved as soon as possible. 

18. That Affidavit was objected to on the grounds of relevance and rejected by me on that basis. 

19. It is clear from the Tribunal’s decision record that it considered the relevant criteria that the applicant was to meet for the visa for which she had applied.

20. In particular, cl.457.223(4)(a) of Schedule 2 to the Regulations required that there be an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased at the time of decision. Clause 457.223(4)(a) is in the following terms:

    “Standard business sponsorship

    (4)  The applicant meets the requirements of this subclause if:

    (a)  each of the following applies:

    (i)  a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)  the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)  the approval of the nomination has not ceased as provided for in regulation 2.75; and”

21. The Tribunal noted that it had pointed out to the applicant that the issue was whether she had an approved nomination, and that on 16 September 2015 the Department had refused the nomination lodged by her then-employer. 

22. The Tribunal also noted that the applicant informed the Tribunal that she was currently employed with another employer and had been so employed since December 2016. The applicant provided a copy of the letter of appointment.

23. The Tribunal further noted that the applicant said that that employer was an approved sponsor and that they just needed a little more time to lodge a nomination in relation to the position that she held of Sales and Marketing Manager.

24. The Tribunal accepted that that employer, Explore Services Pty Limited was approved as a standard business sponsor on 1 September 2016. 

25. The Tribunal noted that at the hearing on 18 January 2018 the applicant  asked for extra time to ensure that the nomination was lodged, and the Tribunal gave the applicant until 22 February 2017,  noting that the applicant’s application for review was lodged on 16 November 2015.

26. However, the Tribunal waited until 1 August 2017 before it made its decision and noted that no evidence of an approved nomination had been provided to it.

27. The Tribunal found there was nothing before it to indicate that there was an approved nomination in respect of the applicant and accordingly found that the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations were not met.

28. The Tribunal noted that there had been no other claims made in respect of other streams in cl.457.223 of Schedule 2 to the Regulations and that there was no evidence to suggest that the applicant would be able to satisfy the criteria for those other streams.

29. The Tribunal found that the requirements for the standard business sponsor stream had not been met and accordingly affirmed the decision not to grant the applicant the Visa.

30. The Tribunal’s decision record discloses that the Tribunal granted the applicant substantial extra time to satisfy the Tribunal that she could meet the criteria for the visa for which she had applied. 

31. The various requests and responses by the applicant are summarised by the first respondent in their written submissions as follows:

    “12. As noted by the Tribunal, the applicant made several requests for more time to provide evidence of an approved nomination (CB 280: [16], [18]–[19]). The first respondent notes the following details about the applicant's requests:

    (a) on 20 and 21 December 2016, the applicant emailed and called the Tribunal requesting '5–6 months extension' to provide evidence (CB 206-208);

    (b) on 21 December 2016, the applicant's request was refused and she was informed that the hearing would proceed on 18 January 2017 as scheduled (CB 224);

    (c) on 18 January 2017, at the hearing, the Tribunal agreed to allow the applicant until 22 February 2017 to provide further evidence (CB 253);

    (d) on 27 January 2017, the Tribunal confirmed that it had allowed the applicant until 22 February 2017 to provide further evidence and noted that it 'cannot wait an indefinite amount of time' (CB 255);

    (e) on 6 February 2017, the Tribunal again confirmed that it had allowed the applicant until 22 February 2017 to provide further evidence (CB 258-259);

    (f) on 10 February 2017, the applicant made a submission to the Tribunal requesting more time and attaching a nomination application from Ways Fundrasing Pty Ltd (CB 260); and

    (g) on 19 May 2017, the applicant emailed the Tribunal requesting that it await the outcome of the nomination application before making a decision (CB 268).”

32. The Tribunal’s finding that no evidence of an approved nomination was provided by the time it made its decision on 1 August 2017 would appear to be open to it on the evidence and material before it and for the reasons it gave.

33. The applicant’s grounds – such as they are – appear to be more in the nature of disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

34. There is nothing in the Tribunal’s reasons in exercising its discretion in respect of the applicant’s requests for further time to suggest that its decisions were reasonable and were not made other than in accordance with law. The Tribunal’s decision to refuse the requests to delay the hearing further were based on rational reasons that it identified and were open to it for the reasons it gave. The Tribunal noted the various extensions that had been granted, in particular that at the time it gave its decision it was more than 6 months since the hearing. The Tribunal noted that there was nothing before it at the time of decision to indicate that there was an approved nomination in respect of the applicant.

35. In all circumstances, the Tribunal’s reasons for exercising its discretion as it did were not arbitrary, capricious or unreasonable (see Minister for Immigration v Li (2013) 249 CLR 332 at [105] per Gageler J; Minister for Immigration v Stretton [2016] FCAFC 11 at [11] per Allsop CJ; Kaur v Minister for Immigration and Border Protection [2016] FCA 132 at [17] per Perry J; Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 at [38] per Griffiths, Kerr and Farrell JJ).

Conclusion

1. Whilst I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error, and none is apparent on the face of the decision record.

2. The Tribunal referred to the relevant law in affirming the decision under review and made findings that would appear to have been open to it on the evidence and material before it and for the reasons it gave.

3. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. 

4. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court commenced by way of application filed on 11 August 2017 should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  5 February 2018