Wajih v Minister for Immigration

[2020] FCCA 2550

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAJIH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2550

Catchwords:
MIGRATION – Subclass 457 Visa – decision of the Administrative Appeals Tribunal – where the applicants had no approved nomination – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), pt.3, div.1 of sch.1

Migration Act 1958 (Cth), ss.359A, 360, 476

Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)

Migration Regulations 1994 (Cth), cls.457.223, 457.321 of sch.2

Cases cited:

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Minister for Immigration v Jia Legeng (2001) 178 ALR 421

First Applicant: SYED USAMA WAJIH

Second Applicant: NOSEEN USAMA 

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2836 of 2017

Judgment of: Judge C. E. Kirton QC

Hearing date: 9 September 2020

Date of Last Submission: 9 September 2020

Delivered at: Melbourne

Delivered on: 17 September 2020

REPRESENTATION

The First Applicant in person and on behalf of the Second Applicant.

Solicitors for the Respondents: Clayton Utz

The Second Respondent: Submitting appearance, save as to costs

ORDERS

1. The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The Applicants’ Application be dismissed.

3. The Applicants pay the First Respondent’s costs fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2836 of 2017

SYED USAMA WAJIH

First Applicant

NOSHEEN USAMA 

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 22 December 2017 (Judicial Review Application), the Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 6 December 2017 (Tribunal Decision). The Tribunal affirmed a decision of a delegate of the First Respondent (Delegate) not to grant the Applicants a Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa (Visa).

2. The Application is filed pursuant to s.476 of the Migration Act 1958 (Cth) (Act). In order to obtain relief, the Applicants must show that the Tribunal has fallen into jurisdictional error.

3. The Court had before it the Judicial Review Application, a Court Book numbering 224 pages (marked as Exhibit 1), an outline of written submissions filed by the First Respondent on 26 August 2020 (Minister’s Submissions) and the First Respondent’s List of Authorities, filed 26 August 2020.

4. The First Applicant appeared before the Court without legal representation. He appeared for himself and on behalf of the Second Applicant. The Court confirmed with him that he had received a copy of the Court Book and a copy of the Minister’s Submissions.

5. This matter was heard on 9 September 2020 and proceeded by way of videoconference on Microsoft Teams as a result of the current health protocols adopted by the Federal Circuit Court in Victoria. The Applicant did not request an interpreter. The Court is satisfied that the hearing provided a meaningful opportunity for the First Applicant to engage with the Court.

Background

1. The Minister’s Submissions accurately summarise the background to this matter. The Court adopts those submissions as its own with some amendments as follows.

2. The Applicants, citizens of Pakistan, applied for the Visa on 17 May 2016.[1] The First Applicant was the primary applicant and the Second Applicant, his wife, was a member of the family unit. The Visa required the First Applicant to nominate a “sponsoring employer”. The Applicants nominated Yes FP Pty Ltd (Sponsor).

   [1] Court Book (“CB”) 1-58.

3. On 28 July 2016, the then Department of Immigration and Border Protection (Department) informed the Applicants, by email to the representative, that the Sponsor did not have an approved nomination and invited them to comment on that information.[2] No response was received.

   [2] CB 91-94.

4. On 20 September 2016, the Delegate refused to grant the Applicants the Visa.[3] The Delegate was not satisfied that the First Applicant was the subject of an approved nomination and, accordingly, found that the First Applicant did not meet cl.457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

   [3] CB 96-103.

5. By email dated 23 September 2016, the Applicants’ representative informed the Department that it appeared that the Delegate had not considered a “new nomination” application lodged on 11 August 2016 (Nomination Application).[4]

   [4] CB 106.

6. On 5 October 2016, the Applicants applied for review of the Delegate’s Decision at the Tribunal.[5]

   [5] CB 114-134.

7. On 4 September 2017, the Tribunal informed the Applicants of changes to the visa program which removed the First Applicant’s nominated occupation, being a Human Resources Adviser, from the list of eligible skilled occupations.[6] The Tribunal informed the First Applicant that his application may no longer meet the requirements in cl.457.223(4)(aa) of Schedule 2 to the Regulations and invited the First Applicant to provide submissions by 18 September 2017. No response was received.

   [6] CB 148.

8. On 6 December 2017, the Applicants attended a hearing before the Tribunal.[7] Various documents were provided to the Tribunal at the hearing by the Applicants, including timeline of the nomination process and the First Applicant’s Visa application,[8] a letter from the Department to his Sponsor, dated 25 October 2016 requesting further information,[9] a letter from the Sponsor, dated 28 October 2016 in response to this request[10] and a copy of a rates notice for an address in Victoria.[11]

   [7] CB 174-177.

   [8] CB 178.

   [9] CB 180-185.

   [10] CB 186-187.

   [11] CB 189-190.

9. That same day, 6 December 2017, the Tribunal affirmed the Delegate’s Decision not to grant the Applicants the Visa.[12]

   [12] CB 197-202.

Tribunal’s Decision

1. The Tribunal’s Decision appears at Court Book pages 197 to 202.

2. The Tribunal commenced by setting out the background to the Visa application including summarising the reason that the Delegate had refused the Visa, noting the letter sent by the Tribunal on 4 September 2017, confirming the Applicants had attended a hearing and itemising the materials that were before it.[13] The Tribunal stated:[14]

   The applicant explained that his proposed sponsor had lodged a second nomination but his 457 application was refused before the second nomination application was considered. He thinks the delegate was confused about the applications and the respective roles of financial advisers and his nominated occupation of human resource adviser. He is not working for his proposed sponsor at the moment as he is exploring other options. He said this decision has affected his career and his future and that Regulation changes should only affect new applications, not current ones. If the nomination has been approved at the start he would not be in this situation.

   [13] CB 198-199 at [1]-[9].

   [14] CB 199 at [10].

3. The Tribunal noted that cl.457.223(4)(a) requires that there be an approved nomination of an occupation relating to the First Applicant by a standard business sponsor that has not ceased.[15] The Tribunal then reasoned as follows:[16]

   14. At the hearing the Tribunal advised the applicant that the outcome of his application for review would rise or fall on the outcome of the related nomination made by ‘YES FP Pty Ltd’ which was scheduled to be heard during the same multi applicant hearing list. On 6 December 2017 the Tribunal affirmed the decision of the delegate not to approve the nomination lodged by ‘YES FP Pty’.

   15. The Tribunal accepts that the applicant is disappointed that his occupation was removed from the relevant instrument and believes that Regulation changes should only affect new applications, not applications already lodged. The Tribunal also accepts that the changes to the 457 program may have affected the applicant’s career and future, at least in the short term. However, as explained to him at the hearing, the Tribunal is constrained to making a lawful decision based on the Regulations in force at the time of its decision.

   16. As the applicant is not the subject of an approved nomination which has not ceased, the requirements of cl.457.223(4)(a) are not met.

   [15] CB 199 at [13].

   [16] CB 199 at [15]-[16].

4. As the First Applicant did not meet the primary criteria, the Tribunal found that the Second Applicant could not meet cl.457.321 of the Regulations.[17]

   [17] CB 199-200 at [17]-[18].

5. The Tribunal affirmed the decision not to grant the Applicants the Visa.

Judicial Review Application

1. The Judicial Review Application contains the following grounds of review:

   1. My visa application was incorrectly and pre-maturely refused by the delegate while my employer’s nomination application was still on foot.

   I applied for the visa on 17 May 2016 based on my nominated occupation of Human Resources Adviser. On 28 July 2016 my employer’s nomination application was refused. However, with the 28 days review period, my employer lodged a new nomination application on 11 August 2016 answering all the reasons for refusal of 28 July 2016. While this application was still on foot, the delegate refused my visa application on 20 September 2016.

   2. My application was again incorrectly and pre-maturely refused by the Tribunal while my employer still had time to apply for review of refusal of its nomination application. I applied for review with the Tribunal on 5 October 2016. My employer’s nomination application was refused by the delegate on 29 November 2016. My employer applied for review of this refusal with the Tribunal in time. My employer’s review application was refused by the Tribunal on 6 December 2017. My employer has until 10 January 2018 to lodge an application for review. However, without waiting until after 10 January 2018, the Tribunal refused my visa application on 6 December 2017. This is against procedural fairness and is denial of natural justice. It is not fair.

   3.The Tribunal did not take into account that I had been working with my employer (who has sponsored me for the visa) since 1 July 2015 as an HR Adviser.

   4. The Tribunal wrongly agreed with the delegate that my job was that of a Human Resources Clerk rather than a Human Resources Adviser. The Tribunal did not take into account that my position was that of a Human Resources Adviser as per my job description. Also, prior to joining my job, I had completed a Masters Degree in Human Resources from Swinburne University.

   5. The Tribunal wrongly agreed with the delegate that there was no requirement of a position of Human Resources Adviser with my employer.

   The Tribunal failed to take into account that my position was that of a Human Resources Adviser. When I started my work the employer had only 8 employees but that number grew to about 30 within 1 year. This included about 5-10 employees who had also left during this time. This clearly shows the need of the position of an HR Adviser within the company.

   6. Removal of my nominated occupation from the eligible skilled occupations list was not until 18 April 2017. This was 11 months after I had made my visa application. The change in April 2017 should not apply to my visa application lodged in May 2016.

   7. Refusal of my employer’s nomination application was also incorrect. The delegate and the Tribunal did not take into account the size of the company, the growth of company, the increase in number of employees of the company from 8 to 30 within 1 year of me joining the company as an HR Adviser and my role within the company.

   8. The delay by the delegate and the Tribunal in deciding my application cannot be used against me. The delay is detrimental to my case. This is against the natural justice. If the delegate had not prematurely refused my application and not wrongly refused my employer’s nomination application, my visa would have been granted before the changes to the eligible skilled occupations list in April 2017.

   9. If the change to list was to be applied retrospectively, I should have been given enough time to make another application. By not giving me time, I was denied natural justice.

   10. The Tribunal did not take into account that the delay by the delegate and Tribunal and then applying the change of list to my application lodged 11 months before the change had a very detrimental effect on my career and life. This is against procedural fairness and is denial of natural justice.

   11. At the Tribunal hearing it appeared that the Tribunal member had already made up her mind in relation to my application and did not try to fully understand my case and situation. The Tribunal member did not take into account that I had been living in Australia for 10 years and had purchased a property here during this time.

2. In addition to the grounds of review outlined above, the Court invited the First Applicant to make any oral submissions at the hearing. The Court explained to the First Applicant its role in a review of this sort and asked him to detail any additional concerns he had with the Tribunal’s Decision.

3. The First Applicant repeated matters that had been referred to in the grounds of review and did not raise any additional concerns with the Tribunal’s Decision, other than to express his concern that the Tribunal Member had not shown empathy for the Applicants’ situation.

Consideration

Ground 1

1. Ground 1 refers to the Delegate’s Decision and alleges that the Delegate erred in “prematurely” refusing the Applicants the Visa. The Court has no jurisdiction in relation to the Delegate’s Decision.[18]

   [18]Migration Act 1958 (Cth), s.476(2) and (4).

2. Ground 1 is dismissed.

Ground 2

1. In Ground 2, the Applicants appear to take issue with the Tribunal refusing their Visa on the same day as refusing the Nomination Application of the Sponsor. The Applicants allege that the Tribunal should have waited for 35 days to ensure that the Sponsor did not lodge an application for judicial review.

2. There is no error in the Tribunal not delaying its decision until the end of the statutory time limit for the Sponsor to appeal to this Court had passed. The Tribunal was at liberty to make its decision at any time. There was no statutory requirement to “wait”. The exhaustive obligations in div.5 of pt.5 of the Act do not require the Tribunal to “wait”.

3. The Applicants were afforded procedural fairness. They were invited to attend a hearing[19] and they provided various documents to the Tribunal in support of their Visa application. The Tribunal advised the Applicants at the hearing that if the Sponsor’s application failed the Applicants applications would “fall as well”. Whether this was sufficient to amount to compliance with ss.359AA (noting it was put in the hypothetical) of the Act is not entirely evident. That is, whether the Tribunal after determining it would refuse the nomination application was required to put this to the Applicants pursuant to s.359A of the Act before making the decision is arguable. However, for the reasons discussed below the denial of procedural fairness was immaterial to the outcome of the review and therefore does not amount to jurisdictional error.[20] There was no denial of procedural fairness or natural justice.

   [19] Ibid, s.360.

   [20] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3.

4. Ground 2 is dismissed.

Ground 3

1. Ground 3 argues that the Tribunal did not consider how long the First Applicant had been employed by the Sponsor. Such consideration was irrelevant to the Tribunal’s disposition of the matter. All that was relevant was whether the First Applicant was the subject of an approved nomination. He was not. How long he had been working with the Sponsor had no bearing on that issue.

2. Ground 3 is dismissed.

Grounds 4, 5 and 7

1. Grounds 4 and 5 argue that the Tribunal wrongly found that the First Applicant was not a Human Resources Adviser and that the Sponsor’s business did not require a role of that sort. Ground 7 argues that the Tribunal did not take into account the size of the Sponsor’s company and repeats parts of ground 5.

2. Grounds 4, 5 and 7 all relate to the Sponsor’s nomination application. The Court is not reviewing the sponsor’s nomination decision which each of the matters that the Applicants refer to in grounds 4, 5 and 7 appear to pertain to. The grounds do not relate to the Tribunal’s Decision in this particular matter and are not relevant to the Court in this particular application.

3. The Tribunal in this matter considered only whether the First Applicant had an approved nomination. It did not consider the First Applicant’s study history or the size of the Sponsor’s company. It did not need to do so. All the Tribunal was considering was whether the First Applicant had an approved sponsor.

4. The Applicants appear to have confused the two decisions (i.e., their Visa application and the nomination application). While related, these were two distinct applications with two separate decisions. Only one of those decisions is under review and the Court cannot consider what occurred in the other.

5. Grounds 4, 5 and 7 are dismissed.

Grounds 6 and 9

1. In ground 6, the Applicants state that legislative changes which removed the “Human Resources Adviser” from the skilled occupations list should have no effect on the First Applicant’s nomination.

2. Whether or not the legislative changes applied to the First Applicant is of no bearing as the Tribunal refused the Visa on the basis that cl.457.223(4)(a) was not met. In those circumstances, the legislative changes which removed the Human Resources Adviser position were not dispositive to the Applicants’ application. It was the lack of nomination which was dispositive.

3. While the Tribunal refers to the legislative changes, those legislative changes were relevant to cl.457.223(4)(aa) of the Regulations. It was unnecessary for the Tribunal to consider that sub-regulation in circumstances where cl.457.223(4)(a) was not met.

4. By ground 9, the Applicants state that if the legislative changes were retrospective they should have been given an opportunity to make another application. The Applicants were invited by the Tribunal to comment on the removal of the occupation from the specified list and also provided an opportunity to withdraw their application to the Tribunal. While the Court understands that withdrawing the application to the Tribunal would entail that the Applicants had been refused the Visa and certain bars on applying for other visas would be in effect, unfortunately that is not a matter the Court considers relevant to this review. As noted above, the legislative changes were of no bearing on the ultimate decision of the Tribunal and do not amount to jurisdictional error.

5. Grounds 6 and 9 are dismissed.

Grounds 8 and 10

1. The Applicants take issue with the fact that the refusal by the Delegate and the subsequent review process, in effect, caused unfairness to the Applicants.

2. The fact that there was any delay in processing the Applicants’ Visa application and their review application to the Tribunal does not amount to a denial of procedural fairness. There is no time period in which an application must be decided. The Tribunal acknowledged that the changes may result in a disruption to the First Applicant’s career and future in the “short term”. Unfortunately, there was nothing further that the Tribunal could do.

3. Grounds 8 and 10 are dismissed.

Ground 11

1. By ground 11, the Applicants allege that the Tribunal was biased. It appears that the Applicants are suggesting that the Tribunal had prejudged the matter, was not impartial and was not open to persuasion.[21]

   [21] Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72].

1. There is no basis for such an allegation in the evidence that is before the Court. The Applicants suggest that the Tribunal not taking into account that they had been living in Australia for 10 years and had purchased a property here suggests bias. This does not demonstrate bias. It was irrelevant to the Tribunal’s consideration. The Tribunal did “fully understand” the Applicants case. It accepted the Applicants disappointment at the sequence of events. However, as the Tribunal acknowledged there was nothing that it could do.

2. There is nothing to demonstrate bias, either actual or apprehended, on the part of the Tribunal. Ground 11 is dismissed.

Futility

1. Were it the case that there was a jurisdictional error on the part of the Tribunal in this matter, the Court notes that it would be futile to remit the matter to the Tribunal in any event.

2. In March 2018, the government implemented the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth). The result was that the Visa the Applicants seek is no longer available. More critically, the Applicants can no longer obtain a sponsor such that they could not meet cl.457.223(4)(a) on remittal.

3. Accordingly, in the absence of an approved Sponsor for the nominated position (which there is nothing on the evidence before the Court to suggest this is incorrect) any relief would be futile.

Conclusion

1. The Judicial Review Application fails to identify any jurisdictional error. There is also a lack of utility in awarding any relief if there was such an error.

2. The Judicial Review Application is dismissed.

3. The Minister seeks costs in the sum of $7,467, which is the scale costs allowed in pt.3, div.1 of sch.1 to the Federal Circuit Court Rules 2001 (Cth). An Order will be made that the Applicants pay the Minister’s costs fixed in the sum of $7,467.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC

Associate: 

Date: 17 September 2020