FEDERAL COURT OF AUSTRALIA

Bakri v Minister for Immigration and Border Protection [2016] FCA 396

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to file an appeal is dismissed.

2.    The applicant pay the first respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GILMOUR J:

1    This is an application for an extension of time to file a notice of appeal against orders of the Federal Circuit Court made on 1 October 2015: Alaa Bakri v Minister for Immigration & Anor [2015] FCCA 3059. The notice of appeal was not filed within 21 days of the Federal Circuit Court's judgment as required under R 36.03(a) of the Federal Court Rules 2011 ("Rules"). Accordingly, the applicant requires an extension of time under r 36.05 of the Rules.

2    It is well established that the factors to be taken into account when considering whether an extension of time should be granted include the extent of the delay, the explanation for the delay, any prejudice to the respondent and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348-349]; Quan v Minister for Immigration and Border Protection [2013] FCA 1239 at [22].

3    The length of the delay in this case is 14 days. This, as the Minister accepts, is not excessive. The Minister does not claim to be prejudiced by reason of the delay.

4    In support of his application, the applicant has filed an affidavit affirmed by him on an unspecified date. Therein, the applicant suggests that he sought to lodge his appeal on 13 October 2015 but that he was asked for "further information" by the Court and that the delay has been for reasons beyond his control. It is unclear exactly what caused the delay and in those circumstances, the Minister does not accept that it has been for reasons beyond the applicant's control.

5    I am prepared to accept the applicant’s explanation for the delay.

6    In any event, the Minister submits that the proposed appeal has no reasonable prospect of success and for this reason alone the application for an extension of time ought to be refused.

Background

7    The following background is substantially drawn from the Minister’s submissions. The applicant did not file submissions.

8    The applicant, a citizen of Lebanon, applied for a Temporary Business Entry (Class UC) visa on 27 February 2013. On 26 June 2013, a delegate of the Minister refused to grant the visa on the basis that the applicant did not satisfy cl 457.223(4)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) ("Regulations"). This was because the delegate was not satisfied that the position associated with the nominated occupation was genuine.

9    On 27 June 2013, the Migration Review Tribunal ("Tribunal") received an application for review of the delegate's decision. On 10 September 2014, the applicant attended a hearing before the Tribunal, with his representative, to give evidence and present arguments. On 17 February 2015, the Tribunal affirmed the delegate's decision.

10    The applicant sought judicial review of the Tribunal's decision by the Federal Circuit Court. The application was heard and dismissed by Judge Smith on 1 October 2015.

Tribunal decision

11    The Tribunal noted that the relevant visa stream against which the applicant had made claims was that contained in cl 457.223(4), which applied to sponsorship for employment in an occupation by a standard business operator. In particular, the Tribunal considered the issues in the present case to be whether the applicant met the requirements of cl 457.223(4)(a) and (d).

12    The Tribunal found that the applicant met the requirement in cl 457.223(4)(a), as at the time of the Tribunal's decision there was an approved nomination of an occupation in relation to the applicant by a standard business sponsor and the approval of the nomination had not ceased. This finding was made on the basis of evidence before the Tribunal that on 4 September 2014, a delegate of the Minister approved a nomination in relation to the applicant by a security company named Zenith Combined Services Pty Ltd for the occupation of Program or Project Administrator (Australian and New Zealand Standard Classification of Occupation (ANZSCO) 511112).

13    The Tribunal proceeded to consider cl 457.223(4)(d), which requires the decision-maker to be satisfied that the applicant's intention to perform the occupation is genuine and that the position associated with the nominated occupation is genuine.

14    The Tribunal took into account the applicant's oral evidence that he had a diploma in hospitality, that he was working as a security guard at the sponsor company, that the sponsor was looking for a person to fill the position of Program or Project Administrator, and that the applicant had told the sponsor that he could do the job. The applicant claimed that the reason he was not already doing this job was that the employer wanted someone permanent. He further claimed that his diploma was relevant to his nominated position because he studied Hospitality Management, dealing with hotels, which was the same as managing a security company. The applicant did not know whether the employer had advertised the vacancy in question.

15    The Tribunal also took into account the oral evidence of Mr Ghamraoui, the managing director of the sponsor company. It noted his evidence that the applicant had not been working in the nominated position because Mr Ghamraoui did not want to spend his time and resources training someone unless that person gave him some assurance that they wanted to be in that position at least in the short to medium term. Mr Ghamraoui claimed that the company's business had expanded and that he needed someone to fill the nominated position. However, he confirmed that he did not advertise the position locally and had made no attempts to find an Australian citizen or permanent resident for the position.

16    The Tribunal allowed the applicant until 24 September 2014 to provide further evidence. It subsequently received documentary evidence suggesting that the sponsor's business had expanded over the past year.

17    The Tribunal noted that in approving the nomination for the position on 4 September 2014, the Minister's delegate was clearly satisfied that r 2.72(10)(f) of the Regulations, which requires that the position associated with the nominated occupation is genuine, was satisfied. However, the Tribunal considered that it was not bound by the delegate's decision on the nomination when considering a visa application against the Subclass 457 criteria and that the requirement in cl 457.223(4)(d)(ii) that the nominated position is genuine must be separately considered. It noted that if the legislature had intended that the criterion in cl 457.223(4)(d)(ii) of Schedule 2 should not be considered separately from r 2.72(10)(f), it could have removed the former criterion from Schedule 2.

18    The Tribunal accepted that the job description provided to the applicant by the sponsor was in line with the duties set out in ANZSCO for the nominated position. The Tribunal also accepted that the applicant had a Diploma from an Australian education provider. However, the Tribunal set out several concerns which it had as to whether the position associated with the nominated occupation was genuine.

19    The Tribunal noted that the applicant had never worked in the nominated position, despite the nomination being first approved on 25 June 2013 and approved again on 4 September 2014. The Tribunal also noted Mr Ghamraoui's evidence that he was the only person working in the office, that the business was expanding and that he worked long hours causing a decline in his health. In those circumstances, the Tribunal found it surprising that the sponsor did not employ the applicant in the position that the sponsor claimed was necessary to the business, given that the applicant worked full time for the sponsor as a security guard and had an approved nomination to work in the nominated role. The Tribunal observed that the sponsor appeared to have made little effort to fill the position of Program/Project Administrator and that despite the claimed suitability of the applicant, the sponsor had not employed him in that position. Based on that evidence, the Tribunal was not satisfied that the sponsor had a genuine need for a full-time Program or Project Administrator.

20    The Tribunal considered the sponsor's evidence that the reason the applicant was not already employed in the nominated role was that the sponsor was unwilling to expend considerable resources without certainty on the applicant's visa. However, it rejected that explanation given that the applicant claimed to be qualified to fill the position, he already worked for the sponsor and the sponsor claimed that the position was needed. The Tribunal therefore found that the applicant did not satisfy the requirement in cl 457.223(4)(d)(ii), and accordingly, that the requirements of cl 457.223(4)(d) were not.

Proceedings in the Federal Circuit Court

21    In the Court below, the applicant advanced four grounds of review. Centrally, the applicant's complaint was that he did have a genuine intention to perform the occupation and that the position associated with the nominated position was genuine.

22    Judge Smith held that the applicant's complaint was, in effect, no more than a statement of disagreement with the conclusion of the Tribunal's "qualitative assessment", and that such a disagreement did not support a finding of jurisdictional error. His Honour proceeded beyond the pleaded grounds to consider whether the Tribunal properly understood its task by reference to the legislative provisions. Citing Cargo First Pty Ltd v Minister for Immigration & Anor (2015) 298 FLR 138, His Honour noted that in assessing whether cl 457.223(d)(ii) was satisfied, the Tribunal was required to undertake "a qualitative analysis of the position as against the circumstances and evidence given in support of its existence" and that this was fundamentally a task left by the legislation to the Tribunal. His Honour held that the Tribunal understood this in assessing the genuineness of the position and reached a conclusion that was open on the material before it.

The draft Notice of Appeal

23    The draft Notice of Appeal filed with the extension of time application advances three grounds which essentially contend that the primary Judge failed to understand the applicant’s case and assumed that the position was not genuine, despite the fact that he had a good sponsor who had been approved and an approved nomination, and that the decision of the primary Judge was "unfair and unjust". These grounds for the reasons which follow are devoid of merit.

24    The Minister submits that the applicant's proposed grounds do not identify any appealable error in the decision of the Court below. As the primary Judge held, the applicant's complaint is, in essence, no more than a disagreement with the Tribunal's conclusion. I agree. It amounts to impermissible merits review of the Tribunal's findings: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [35-36]; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

25    The applicant does not articulate in what way the primary Judge's misunderstood his case nor the injustice and unfairness of his Honour's decision. The primary Judge correctly identified the nature of the Tribunal's task in assessing whether cl 457.223(4)(d)(ii) was satisfied. This has recently been confirmed by this Court concerning an identically phrased provision in the Regulations: Cargo First Pty Ltd particularly at [22]-[25] & [34] (per Flick J).

26    The genuineness or otherwise of the position was a matter for the Tribunal to assess, not the Court. The primary Judge was correct in so finding. His Honour made no assumption that the position was not genuine. Rather his Honour correctly concluded that this enquiry was not part of the Court's function on judicial review.

27    To the extent that the applicant relies on the approval of the nomination to support his contention that he satisfies the requirement in cl 457.223(4)(d)(ii), this is not an argument that was raised in the Court below. Nonetheless, the Tribunal was correct to consider that it was not bound by the delegate's decision on the nomination and that it was required to consider for itself whether the requirement in cl 457.223(4)(d)(ii) was satisfied. I accept the Minister’s submission that to hold otherwise would render cl 457.223(4)(d)(ii) redundant.

28    Insofar as the applicant's proposed grounds may be said to assert illogicality or irrationality, these too lack merit. The Tribunal's conclusions cannot be said to be illogical or irrational simply because one conclusion has been preferred to another possible conclusion: Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 at [131].

Conclusion

29    The application for an extension of time to file a notice of appeal will be refused, with costs in favour of the Minister.

Associate:

Dated:    22 April 2016