UDDIN v Minister for Immigration and Anor

[2015] FCCA 1591

FEDERAL CIRCUIT COURT OF AUSTRALIA

UDDIN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1591

Catchwords:
MIGRATION – Migration Review Tribunal – Regional Employer Nomination (Permanent) (Class RN) visa – refusal of a nomination – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – Application for adjournment – adjournment refused.

Legislation:  

Migration Act 1958 ss.31(3), 65(1)476
Migration Regulations 1994 reg.5.19

Applicant: SHAHAB UDDIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 900 of 2015

Judgment of: Judge Street

Hearing date: 9 June 2015

Date of Last Submission: 9 June 2015

Delivered at: Sydney

Delivered on: 9 June 2015

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Ms R. Graycar

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 900 of 2015

SHAHAB UDDIN

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 the respective decision of the Tribunal affirming a decision of the delegate not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

2. The grounds of the application are as follows:

   1. The member did not apply the law correctly.

   2. The member misinterpret the law CL.187.233 of Schedule 2 to the regulation.

3. On 6 June, the applicant applied to the Department for the visa, which the delegate refused on 9 January 2014. To be granted the visa, the applicant had to meet a range of criteria under ss.31(3) and 65(1)(a)(ii). Relevantly, this included cl.187.233 of Schedule 2, which is as follows:

   187.233 

   (1)  The position to which the application relates is the position:

   (a)  nominated in an application for approval that seeks to meet the requirements of:

   (i)  subparagraph 5.19(4)(h) ii); or

   (ii)  subregulation 5.19(4) as in force before 1 July 2012; and

   (b)  in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

   (2)  The person who will employ the applicant is the person who was the nominator in the application for approval.

   (3)  The Minister has approved the nomination.

   (4)  The nomination has not subsequently been withdrawn.

   (5)  The position is still available to the applicant.

   (6)  The application for the visa is made no more than 6 months after the Minister approved the nomination.

4. I note that the term application for approval was defined as “an application under reg.5.19 for approval of the nomination of a position”, pursuant to cl.187.111 of Schedule 2. Paragraph 114C(3)(d) of Schedule 1 to the regulations provides:

   An applicant seeking to satisfy the primary criteria must declare in the application that the position to which the application relates is a position nominated:

   (i) under regulation 5.19; or

   (ii) in accordance with a labour agreement that is in effect, by an employer that is a party to the labour agreement.

5. The visa application was one where the applicant declared that his visa application pertained to a position was the subject of a nomination of the identifier specified.  That specified identifier referred to an application of nomination which has been made by Wrap & Grill Pty Ltd, and identified the applicant as their nominee in the position of cook.  On 11 December 2013, the department wrote to the applicant and informed him that the Wrap & Grill nomination had been refused.  The letter indicated that as a consequence, the applicant’s visa application could not be approved.  The applicant did not respond to the letter, although invited to do so.

6. On 9 January 2014, the delegate refused the application and observed that on 11 December 2013, the Wrap & Grill nomination had been refused, and accordingly the applicant could not satisfy cl.187.233(3) of Schedule 2 of the Regulations.

7. On 28 January 2014, the applicant sought a review by the Tribunal of the delegate’s decision.  Relevantly, the Tribunal identified the real issue in para.8 as follows:

   8.      The issue in the present case is that the nomination related to the visa application has not been approved.

8. It is in these circumstances that the Tribunal found:

   11. On the visa application form, the applicant had entered details of the nomination by providing the following Nomination Transaction Reference Number: EGO34WCS22. This reference number relates to the nomination of the position of Cook made by Wrap & Grill Pty Ltd under r.5.19(4)(h)(ii). The application for approval of the position under r.5.19(4)(h)(ii) was not approved by the Department, and that decision was affirmed by this tribunal on 10 February 2015.

   12. In response to the tribunal’s invitation to comment on or respond to that information, the applicant’s representative informed the tribunal that the applicant has been sponsored by MS AUS BD PTY LTD. The representative requested that the tribunal await the Department’s decision in relation to the nomination lodged by that business in respect of the applicant and assess this case based on the current nomination. The tribunal considered the request but has decided to proceed to a decision.

   13. This is because cl.187.233 requires that any approved position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. The position which was the subject of the declaration made by the applicant was related to the nomination made by Wrap & Grill Pty Ltd (Nomination TRN: EGO34WCS22) which has not been approved, and not a nomination made by MS AUS BD PTY LTD.

   14. Therefore, even if the subsequent nomination lodged by a different employer, MS AUS BD PTY LTD, was approved, cl.187.233(1)(b) cannot be met. The visa in relation to this application cannot be granted on the basis of a nomination lodged by a different employer that was not the subject of the visa declaration. The new nomination is not relevant to the application currently before the Tribunal and the Tribunal considers it appropriate to proceed to a decision in these circumstances.  As the nomination made by Wrap & Grill Pty Ltd was not approved, the Tribunal finds that the applicant does not meet the requirements of cl.187.233.

   15. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams.  As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

   16. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

9. Insofar as ground 1 asserts that the Tribunal did not correctly apply the law, there is nothing in the Tribunal’s reasons or in the Court book that suggests that the Tribunal did not correctly apply the statutory provisions, and there is no substance in relation to ground 1.  The proposition that the Tribunal misinterpreted the Regulations is also one without substance.  The decision of the Tribunal was the only decision to which the Tribunal could come in the facts and the circumstances where the nomination had been refused.  There is no error of law by the Tribunal and the application fails to identify any proper ground for relief.

10. The applicant sought an adjournment.  The adjournment was opposed.  There was no utility in granting an adjournment in circumstances where the proceedings are deemed to failure, as it would only unnecessarily increase the cost to the parties.  I am clearly satisfied these proceedings are doomed to failure, and for that reason the adjournment is refused.  The application is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 June 2015