Uddin v Minister for Immigration

[2018] FCCA 565

FEDERAL CIRCUIT COURT OF AUSTRALIA

UDDIN v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 565

Catchwords:
MIGRATION – Migration – review of decisions – non-protection visa (Pt 5-reviewable) decisions – applications – requirements for valid application.

Legislation:

Migration Act 1958 (Cth), ss.140E, 140GB

Migration Regulations 1994, cl.457.223(4)(a)

Applicant: MOHAMMED IMAD UDDIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 790 of 2017

Judgment of: Judge Jarrett

Hearing date: 9 February 2018

Date of Last Submission: 9 February 2018

Delivered at: Brisbane

Delivered on: 9 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 17 August, 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 790 of 2017

MOHAMMED IMAD UDDIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review that seeks to have a decision of the Administrative Appeals Tribunal made on 13 July, 2017 set aside and the matter remitted to the Tribunal to be dealt with further according to law.  The Tribunal decided that it had no jurisdiction to entertain an application by the applicant to review a decision of a delegate of the first respondent to refuse the applicant a Temporary Business Entry (Class UC) subclass 457 visa.  The Tribunal concluded that there was no proper application before it and that it did not have jurisdiction to deal with the review.

2. The factual background is set out in the written submissions filed on behalf of the first respondent.  Having regard to my perusal of the material in the Court book, it appears to me that that recital of the background facts in those written submissions is accurate and I draw upon them in these reasons. 

3. The material reveals that on 20 October, 2015 the applicant applied for a Temporary Business Entry (Class UC) subclass 457 visa.  He was assisted in doing so by a migration agent.  He nominated a sponsor for the purposes of that application. 

4. On 29 November, 2016 the first respondent’s delegate invited the applicant to comment on information to the effect that the applicant’s nominated sponsor did not have an approved nomination in place for the applicant and as a result his application was unlikely to be successful.  The material shows that there was no response to that invitation from the applicant or his migration agent.  Accordingly on 9 January, 2017 the delegate refused to grant to the applicant the visa for which he had applied.  The delegate concluded that the requirements of cl.457.223(4)(a) of sch 2 to the Migration Regulations 1994 had not been met because the applicant was not the subject of an approved nomination.  The applicant applied to the Tribunal for a review of that decision. 

5. On 2 February, 2017 the Tribunal wrote to the applicant and invited him to respond to the Tribunal’s concerns that his application was not valid. The Tribunal set out its preliminary view that it did not have jurisdiction to entertain the application because it appeared that the applicant was not in the migration zone at the time the application for review was lodged. Further the applicant was not identified in a nomination for the purposes of s.140GB of the Migration Act1958 (Cth) that was approved or pending and there was no pending application for review before the Tribunal of either a decision not to approve the applicant’s nominated sponsor under s.140E of the Act or a decision not to approve the nomination under s.140GB of the Act.

6. The applicant responded to the request and pointed out that he was in Australia when he lodged his application for review.  He provided some corroboration for his assertions about that.  But he did not answer the other matter raised by the Tribunal for his comment. 

7. In its reasons for decision given on 13 July, 2017 the Tribunal indicated that it was not satisfied that it had jurisdiction to review the delegate’s decision.  Whilst it was satisfied that the applicant was in the migration zone at the relevant time, it concluded that the application was ill-founded because of the reasons set out in its letter to the applicant of 2 February, 2017.  The reasons of the Tribunal are summarised in paragraph 2 of its reasons for decision as follows:

   2. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable. A decision to refuse to grant a Class UC Subclass 457 visa is reviewable if the applicant made the visa application while in the migration zone and it is a criterion that the applicant is sponsored by an approved sponsor. It is not reviewable in the circumstances of this case because the applicant had not been identified in a nomination under s.140GB of the Act that was approved or pending. As set out in the decision record provided with the application for review, the nomination application made by Just Press Play Entertainment Pty Ltd had been refused and, when the application for review in respect of the Subclass 457 visa was lodged, there was no pending review of the nomination refusal. Therefore, this application does not meet the requirements of s.338(2)(d).

8. The applicant has sought to review the Tribunal’s decision in this Court.  There are, as the first respondent points out, said to be 15 grounds of review. 

   RECORDED:  NOT TRANSCRIBED

9. As the first respondent points out, the purported first six or so grounds, particularly those numbered 3 to 6, are a recitation of factual matters and do not constitute proper grounds of review.  Ground 7 alleges that the applicant was not provided with the Tribunal’s invitation to comment on the validity of his application dated 2 January, 2017.  But as the first respondent points out, that cannot be right because he in fact responded to the Tribunal’s invitation in an email dated 16 February, 2017.  I have already referred to his response. 

10. Ground 8 alleges that the Tribunal made a jurisdictional error by finding that it had no jurisdiction.  That really asserts the ultimate issue.  It does not set out any ground of review.  Ground 9 asserts that the applicant had provided evidence with his application that was genuine and authentic, but as the first respondent points out, the Tribunal’s decision was not a decision that was based upon its assessment of any of the material provided by the applicant.  His credit was not in issue.  The application failed for procedural and substantive reasons, given the matters set out in paragraph 2 of the Tribunal’s reasons. 

11. Ground 10 of the application for review contends that the delegate did not investigate the applicant’s prior work history with the sponsor or invite the applicant or the sponsor for “nomination application” as he puts in his application for review.  The first respondent submits that the ground is misconceived.  I agree.  The Tribunal’s decision makes it clear that it was decided on a jurisdictional issue.  And there is nothing in the material that demonstrates that the Tribunal’s assessment of the relevant jurisdictional facts was erroneous. 

12. The applicant asserts that there was a lack of procedural fairness in ground 12 of his application.  But that ground cannot be made out.  The record demonstrates that the applicant was provided procedural fairness.  The Tribunal squarely raised with him the issues that concerned it.  He responded to those that he chose.  It is difficult to envisage what it was that the Tribunal ought to have done that it did not otherwise do.  There is, in my view, no lack of procedural fairness demonstrated by the Tribunal’s reasons for decision or the material in the Court book. 

13. The balance of the application for review does not raise any substantive grounds for review but really invites the Court to revisit the application for the visa rather than to review the decision of the Tribunal. 

14. I accept the first respondent’s submissions that the application does not demonstrate the Tribunal’s decision is attended by jurisdictional error.  The application must be dismissed with costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  9 March 2018