UDDIN v Minister for Immigration

[2015] FCCA 1492

FEDERAL CIRCUIT COURT OF AUSTRALIA

UDDIN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1492

Catchwords:
MIGRATION – Migration Review Tribunal – Temporary Business Entry (Class UC) visas – no jurisdictional error – application dismissed.

Legislation:  

Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.44.12
Migration Act 1958 s.476

First Applicant: REAYD UDDIN

Second Applicant: HURUNNESA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2738 of 2014

Judgment of: Judge Street

Hearing date: 26 May 2015

Date of Last Submission: 26 May 2015

Delivered at: Sydney

Delivered on: 26 May 2015

REPRESENTATION

The applicants appeared in person

Counsel for the Respondents: Mr M. Smith

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The amended application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5,000. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2738 of 2014

REAYD UDDIN

First Applicant

HURUNNESA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal pled on 29 September 2014, affirming the decision of the delegate not to grant Temporary Business Entry (Class UC) visas.  The amended application is prolix in its alleged grounds of error all of which are without substance. This type of prolixity is not appropriate to identify jurisdictional error. None of the grounds identified in the amended application are made out.

   Grounds of application:

   The applicants claim that the Migration Review Tribunal made a jurisdictional error and error law when making the decision. Thereof the applicants appeal to the Hon. Court to directing the Migration Review Tribunal to rehear the applicants' Review Application according to law:

   Particulars:

   • Information to demonstrate you are subject of an approved business nomination which has not ceased as required: cl.457223(4)(a) of the Regulations OR

   • Information to demonstrate you will meet this requirement in the near future-for example by providing information to demonstrate that you have the current support of an approved business sponsor and that a nomination application for you is currently being processed by the Department of Immigration and border protection Ref: Court Book page: 117.

   The applicants claim that when a subclass 457 visa nomination is approved, it's followed by subclass 457 visa application within 12 months before its ceased. In the present 457 visa application the applicants lodged their visa application with the DIBP Parramatta Business Centre using the sponsorship application ID: 0625555175 that approved on applicants' name. The visa application lodged within 12 months and before 1st July 2013.

   When a subclass 457 visa is approved the business nomination is ceased automatically. But it's not explained that a nomination will be ceased too when subclass 457 visa application is refused and the applicants applied to the Migration Review Tribunal for the refusal. As the applicants applied for Migration Review Tribunal in due time so the nomination is not ceased.

   The employment contact between sponsor and the 1st applicant was for 4 years. So if the subclass 457 visa application was approved the nomination will ceased automatically and the sponsor will not apply for a new 457 visa nomination approval after 1 year for the visa applicant (for the present applicants).

   The 457 Visa Nomination was not even withdrawal by the sponsor, so the nomination was not ceased and it's an integral parts of the present subclass 457 visa that refused by the delegate of the present 1st Respondent.

   The applicant also claim that if the nomination is ceased why an internal review option is wsd advised liked Migration Review Tribunal option is provided for negative decision on a subclass 457 visa.

   Particular:

   ( 1) This regulations applies to a nomination of an occupation in which a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Temporary Work (Skilled)) visa is identified as the person who will work in the occupation.

   (2) An approval of a nomination ceases on the earliest of:

   (a) the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and

   (b) 12 months after the day on which the nomination is approved; and

   ( c) the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Temporary Work (Skilled)) visa.

   The applicants claim that Cluse 2.75 (2)(b) 12 months after the day on which the nomination is approved- its means that an application for 457 visa must be lodged before the 12 months of the nomination for subclass 457 visa is approved.

   The applicants' subclass 457 nomination was lodged in April 2013 and it approved for applicants on 28^th June 2013. Accordingly the applicants' 457 visa is not ceased as a subclass 457 visa was lodged before 12 months.

   Hence the Tribunal Member is pre-occupied in her mind before hearing to dismiss the Review Application which led to error of law and jurisdictional error thereof the Tribunal decision should be set aside.

   Particulars:

   At the time of the visa application was lodged, Class UC contained Subclass 457. The criteria for the subclass 457 visa are set out in Part 457 of Schedule 2 of the Regulations. One of the criteria to be satisfied at the time of decision is cl.457.223 which requires satisfying one of the alternatives streams for the visa.

   The applicants' claim that they applied for subclass 457 nominations followed by subclass 457 visa applications in same month and the nomination for the subclass 457 visa was approved on 28/6/2013.

   The applicants also claim that the cl 457.223(4) which is set out in the attachment to the MRT decision the applicants met the all criteria hence the delegate of the 1st Respondent advised to the

   applicants to provide health check and overseas health worker health insurance May 2013 to further process of applicants 457 visa.

   Particulars:

   While the delegate refused the application on the basis that the nomination occupation of the application was no longer specified in the relevant legislative Instrument and the applicant did not meet cl.457.223 (4)9(aa) the issue I have considered in conducting the review is the preliminary issue of whether the applicant meet cl.457.223 (4)(a) Ref: Court Book cluses 5,6 and 7 page 143.

   The applicants claim that the Instrument of 1st July 2013 is not relevant to the applicants subclass 457 visa application. The Instrument is affected on those applicants who applied subclass 457 visa on 1st July 2013 or after 1st July 2013. The applicants applicant subclass 457 visa applied before l" July 2013, thereof exclusion of Cook from Instrument of subclass 457 visa did not affect to the applicant subclass 457 visa as the Instrument did not excluded who applied subclass ~57 visa from Takeaway Restaurant or Fast-food outlet before 1st July 2013.

   Since the case officer requested to the visa applicants in May 2013 to provide the Overseas Health Insurance and Medical Test to further process of the visa application. Accordingly the applicants completed all the prerequisite requirements to approve the subclass 457 visa in May 2013.

   The applicants claim that subclass 457 application was refused by the delegate of the 1^st respondent illegally; thereof the delegate decision should be set aside.

   The applicants also claim that they made the Review Application against a decision illegally made by the delegate of the Minister on 24/10/2013 and the Tribunal upheld the wrong decision thereof the MRT decision should be set aside.

   The delegate made a mistake when making decision as the removal of the Cook position excluded from subclass 457 visa that lodged on 1st July 2013 or after 1st July 2013 and those lodged before 1 July 2013 that are not yet decided/or excluded

   The applicants' application for subclass 457 was lodged before the July 2013. There of applicants' application subclass 457 did not fall in to the Instrument that exclusion of occupation of Cook from fast food and Takeaway premises.

   The applicants claim that Member of the Migration Tribunal's decision is not sustainable in the eye of law as the decision was made on the basis of wrong information and interpretation of the applicable law and regulations.

   The applicants claim that when the Migration Review Tribunal dismissed the Review Application it's made jurisdictional error and error of law.

   The applicants also claim that the Tribunal wrongly interpreted application status and ask the applicant to show another nomination which is irrelevant with the applicants Review Tribunal ((MRT case number: 1316342). The Tribunal raised a wrong issue, which led to jurisdictional error and error law. The Tribunal failed to understand Migration Regulations cluse 2.75 and its interpretation, which led a wrong interpretation of the Migration Regulations.

   The applicants claim that in the time of making decision the Tribunal acted without jurisdiction or in excess of jurisdiction in that it failed to take into account relevant considerations and took in to account irrelevant considerations and fairness thereof the Tribunal decision should be set aside.

   The Honourable of High Court indicates that:

   Law relating to jurisdictional error, the High Court of Australia (discussed in Lu v MIMIA (2005) FCAFC240 considered what would amount to jurisdictional error and stated that:

   "As was said in Craig v South Australia, if an administrative tribunal (like the MRT Tribunal) falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it" Jurisdictional error can thus be seen to embrace a number of different kinds of error, the list of which, in the passages cited from Craig, is not exhaustive. Those different kinds of error may well overlap.  The circumstances of particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant materials. What is the important, however, is that identify a wrong issue, asking a wrong question, ignoring relevant materials or relying in irrelevant material in a way that affects the exercise of power is to make an error of law.

   In summing up, we argue that the Tribunal did not follow the law of procedural fairness and, in so doing, made jurisdictional error. The procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision were not observed.

   The Tribunal ignored the merits of the claim and the Tribunal gave the decision on the basis of wrong information gave by the delegate and did not any investigation though the tribunal was qualified to do it.

   The Tribunal failed to take relevant consideration into account in exercising its power to determine that the delegate's decision was wrong.

   The Tribunal decision was unjust and was made without taking in to account the full gravity of the circumstances and consequences of my review application.

   The decision made by the Tribunal is not justifiable by the evidence and assumption which used in the decision.

   That the information used by the 2nd Respondent indicates a clear misinterpretation of the Migration Regulations.

   Thereof the applicants plea to the Honourable Court directing to the Migration Review Tribunal to rehear the applicants' application according to the law (Migration Act 1958 and Migration Regulations 1994).

2. The first paragraph is a generalised assertion that fails to articulate any jurisdictional errors.  The particulars provided in the first dot point seek to cavil with the finding of fact made by the Tribunal, and further it was admitted by the applicants at the hearing before the Tribunal that the business nomination had ceased.  There is no substance in relation to the first dot point particular.  The second dot point particular seeks to advance a ground upon which the applicants wish to provide further information to demonstrate a current approval.  This is an impermissible challenge to the finding of fact made by the Tribunal.

3. Under the first heading of “Particulars”, there is then a heavy type paragraph which fails to identify anything that could constitute a jurisdictional error.  The next paragraph seeks to challenge the adverse finding by the Tribunal, but does not identify any jurisdictional error.  The next paragraph again fails to identify any jurisdictional error and repeats matters of history.  The next paragraph seeks to cavil with the adverse finding of fact by the Tribunal and is not a jurisdictional error.  The next paragraph is an impermissible challenge to the merits of the application.

4. Under the next heading of “Particulars”, there is set out part of the Regulations.  The following heavy print paragraph fails to identify anything that constitutes a jurisdictional error.  The next following heavy print paragraph fails to identify anything that constitutes a jurisdictional error. 

5. The next heavy print paragraph appears to make an assertion of bias by reference to the adverse decision.  That adverse decision is not a ground upon which bias can be established.  Further, there is nothing in the conduct of the Tribunal in delivering the adverse decision by reason of which a reasonable person might believe that the Tribunal failed to bring an independent and impartial mind to the determination of the matter on its merits.  There is no substance in relation to that paragraph.

6. There is then a heading, “Particulars”, which fails to identify any jurisdictional error.  The next heavy print paragraph seeks to recite a matter of history.  The next heavy print paragraph is an impermissible challenge to the finding of fact by the Tribunal.  There is then a heading of “Particulars” under which the applicants again seek to impermissibly challenge the adverse finding of fact by the Tribunal.

7. The next heavy print paragraph asserts that the Instrument which was marked Exhibit B, being the Specification of Occupations, a Person or Body, a Country or Countries, dated 28 June 2013 that commenced operation on 1 July 2013, was not relevant to the Tribunal.  It is clear from the decision of the Tribunal that the applicants fully appreciated the significance of that Instrument, and, in particular, the relevant removing in relation to the Instrument of cooks of positions in fast food or takeaway food service.  There is no substance in the proposition that the Instrument was not one which had force of law. The Instrument had to be taken into account by the Tribunal.  Accordingly, there is no jurisdictional error identified by that paragraph.

8. The next paragraph is an assertion of compliance which does not identify any jurisdictional error and is without substance.  The next two paragraphs assert illegality and there is no substance in either of those paragraphs, and there is nothing in those paragraphs that discloses any jurisdictional error. 

9. The next paragraph asserts a mistake by the Tribunal.  Whilst it is the case on one construction of the decision of the delegate that the delegate referred to the position of cook having been removed, on a proper reading of the delegate’s decision as a whole it is clear that the delegate was referring to the removal referable to the applicant’s position.  Be that as it may, there is no such error by the Tribunal, and there is no substance in the assertion of a mistake.  The assertion that the applicants’ occupation did not fall into that category is contrary to the concessions made both before the Tribunal and, indeed, before the Court today.  There is no jurisdictional error disclosed in that paragraph.

10. The suggestion that the decision was made on wrong information, or an erroneous interpretation of law and regulations, is without substance and fails to identify any jurisdictional error. The broad assertion of jurisdictional error or error of law does not make out jurisdictional error.

11. The next assertion, that the Tribunal wrongly interpreted what is said to be “application status” is without substance, and there was no error in the Tribunal requiring the applicants to meet the requirements of the Regulations.  Further, there was no erroneous issue raised by the Tribunal, and the assertion of an erroneous interpretation or failure of the Tribunal to understand its jurisdiction is without substance.

12. The generalised assertion that the Tribunal acted without jurisdiction and in excess of jurisdiction, or failed to take into account a relevant consideration, or took into account irrelevant considerations, are each completely without substance and fail to identify any jurisdictional error.  The citing decisions of the High Court of Australia or passages from the decisions of the High Court of Australia does not identify in this case any jurisdictional error.

13. The first paragraph commenced “In summing up…” asserts a want of compliance with procedural fairness, and thereby a jurisdictional error.  There is no substance in the assertion of a denial of procedural fairness.  It is clear that the Tribunal complied with the statutory requirements in respect of the hearing date that was held on 26 September 2014 and, further, complied with the statute’s obligation that required clear particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The content of the letter of 15 August 2015:

    In your visa applications, you indicate that you are applying as a person nominated by an Australian business.  It is a requirement for the grant of a Subclass 457 visa under the sponsorship of a standard business sponsor that there is an approved business nomination in relation to you that has not ceased: cl.457.223(4)(a) of the Migration Regulations 1994 (the Regulations).

14. It was that issue on which the applicants failed before the Tribunal.  It was that dispositive issue in respect of which it is clear the applicants had a genuine hearing.  To the extent that the applicants sought an adjournment of the hearing conducted on 26 September, it is apparent that the applicants had conceded that the first applicant did not currently have an approved nomination for a sponsor, and that the applicant was working in a position that could not be approved, and the Tribunal carefully considered a request for an adjournment and identified the reasons why that adjournment was declined:

    11. At the hearing, the second applicant argued that the application shouldn’t have been refused. The list of occupations changed after they made their application. They should have been able to rely on the previous list. As I explained to the applicants that the hearing, however, as it was (on their evidence) more than 12 months since the prior nomination had been approved, it was no longer valid. Even if the delegate had made a mistake as to whether the occupation was approved, the nomination had expired.

    12. At the hearing, the second applicant asked that the tribunal to allow additional time for the applicant to obtain a new nomination from his current employer. I have considered this request, but do not consider that it is reasonable to adjourn the review on this basis, in light of the applicant’s evidence that his current employer is not able to sponsor him because his current position is not in an approved occupation and they don’t have another type of position available to him. As adjournment on this basis would appear to be futile. 

    13. At the hearing, the applicant asked the tribunal to adjourn the review to 3 or 4 months to enable him to get another nomination approval from another sponsor. He claimed that as well as Halal Meat Export Pty Ltd, he had many employers willing to sponsor him. I have considered the applicant’s request, but for the following reasons have decided to proceed to a decision without granting the requested adjournment.

    14. As I raised with the applicant at the hearing, it is almost 12 months since his visa was refused because of a problem with his nomination approval. I consider that he was waiting for the tribunal hearing before taking further steps, I consider that it is reasonable for the applicant to have taken steps to meet the basic visa criteria prior to a hearing in this tribunal. I note that the applicant was represented in this matter. The tribunal spelt out the requirement for a current approved nomination in the hearing invitation sent 6 weeks prior to the hearing. Whilst I acknowledge that the subclause under which the application was refused is a different subclause to that which I am considering in making this decision, as I put to the applicant at the hearing, the issues were similar. He was aware that he had a fundamental problem with the nomination approval, but had not managed to arrange a new nomination approval (or even application) over that period. Finding a possible sponsor was only the first step in a multi-step process. The employer would need to lodge an application for sponsorship approval, meet the criteria, and be approved before a nomination application could be considered by the DIBP. In my view, the applicant is not far enough into that process to establish that he had significant prospects of success if the requested adjournment was granted, or to warrant an adjournment while that process continues. Approval of a nomination is clearly not imminent in this case.

    15. In addition, as I also raised with the applicant at the hearing, to make a valid application for a Subclass 457 visa under the standard business sponsorship stream in cl.457.223(4), as applicant must already have a sponsor. An applicant must specify in their application the employer who has nominated or who proposes to nominate an occupation in relation to the applicant, and the application must be accompanied by evidence that the employer is a standard business sponsor or has applied for approval as a sponsor: or has applied for approval as a sponsor: Item 1223A(3)(d) of Schedule 1 to the Regulations. In other words, an applicant must have secured a sponsor who has at least applied for sponsorship approval before a valid application can be made. While the applicant was in this position when his initial application was made, and therefore lodged a valid application, he is no longer in this positon. While an applicant can change sponsor during the processing of an application and still meet the visa criteria, I consider that it is fair and reasonable that an applicant might only have a limited time in which to do so.

    16. In all the circumstances of this case, and for the above reasons, I consider that it is fair and reasonable to proceed to a decision on the review.

1. That decision was clearly one that was open to the Tribunal and cannot be said to lack an evident and intelligible justification, and was proportionate in the circumstances of the case. 

2. There was clearly no jurisdictional error, and no denial of procedural fairness in the Tribunal deciding to proceed with the review.  There is no substance in the assertion of a denial of procedural fairness.  The paragraph that asserts the ignoring of the merits fails to identify any jurisdictional error.  The assertion that the Tribunal failed to take into account a relevant consideration in exercising its power again wholly fails to identify any jurisdictional error.  The assertion that the decision was unjust fails to identify any jurisdictional error.  I am satisfied the adverse findings were open on the materials before the Tribunal. 

3. The assertion that the Tribunal made the decision without taking into account the gravity of the circumstances and consequences is an impermissible challenge to the merits.  The proposition that the decision is not justifiable by the evidence is an impermissible challenge to the adverse findings of fact, and indeed, an impermissible challenge to the findings made in circumstances where the applicants conceded that the requirements were not met.  The assertion of a misinterpretation of the regulations is, for the reasons I have already given, without substance and the assertion identifies no jurisdictional error. 

4. In this case, relevantly, the Tribunal found:

   17. On the basis of the information before me, I am not satisfied that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased, as required by cl.457.223(4)(a). I am not satisfied that the applicant meets cl.457.223(4)(a) and I find that he does not meet cl.457.223(4) as a whole. The applicant has therefore not met the requirements for a visa in the standard business sponsor stream.

   18. For these reasons, I find that the applicant has not met the requirements for the standard business sponsor stream. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams. I find that the applicant does not met cl.457.223 which is a mandatory criterion for the grant of Subclass 457 visa.

   19. The second applicant has made no claims to meet the primary criteria for the grant of a Subclass 457 visa and on the information before me I find that she down not meet cl.457.223. There is no information before me to indicate that there is a current business nomination in respect of her to meet the requirements of cl.457.223(a), nor that she meets the requirements of the other streams in the other subsections of cl.457.223.

5. It was in those circumstances that the Tribunal affirmed the decision under review. 

6. The amended application is one which, in my opinion, borders on vexatious, but in any event it fails to identify any jurisdictional error. An application for a Constitutional writ should clearly identify the alleged ground of jurisdictional error, and a prolix application that fails to disclose any jurisdictional error is likely to be summarily dismissed under r.44.12 or s.17A. The Court has dealt with each of the matters raised in the amended application all of which are without substance. The amended application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  4 June 2015