Federal Court of Australia
Kamruzzaman v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 523
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The name of the first respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs.
2. The application for leave to appeal the orders of the primary judge made on 17 August 2021 be dismissed.
3. The first and second applicants 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.
(Revised from Transcript)
NICHOLAS J:
1 Before the Court is an application for leave to appeal against an order of the Federal Circuit Court of Australia (as it then was) dismissing an application brought by the applicants for a review of a decision of the second respondent (“the Tribunal”) dated 12 June 2019 affirming a decision of a delegate of the first respondent (“Minister”) made on 8 March 2018 not to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (“the Act”).
2 The order for dismissal was made pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) which relevantly provided:
(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.
3 The second applicant is the first applicant’s partner and the third applicant is their child. The applicants applied for visas on 26 June 2017. The class of visa sought was Sub-Class 186 (Employer Nomination Scheme).
4 The relevant criteria for the grant of a Sub-Class 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). Relevantly, the criteria specified in cl 186.223 requires (inter alia) that the position to which the visa application relates is nominated in an application for approval of the nomination, that the nomination be approved, and that the nomination not have been subsequently withdrawn.
5 The first applicant applied for the visa on the basis of a nomination of a position made by Tasne Enterprise Pty Ltd (“Tasne”) which nomination was identified in the first applicant’s visa application.
6 The Tribunal found that the nomination was refused by the Department on 2 February 2018. The Tribunal found that Tasne lodged an application for review of the decision not to approve the relevant nomination, but that the application for review was subsequently withdrawn.
7 In its reasons, the Tribunal refers to submissions made by the first applicant to the Tribunal at a hearing held on 11 June 2019 which was conducted by the Tribunal with the assistance of an interpreter in the Bengali and English languages.
8 The Tribunal noted what it considered to be the difficult circumstances in which the applicants find themselves. It accepted that the first applicant had worked for Tasne in the nominated position. However, the Tribunal noted that the approval of the nomination had been refused and that Tasne’s application for review of that decision had been withdrawn. On that basis the Tribunal concluded that the first applicant had no prospect of meeting the requirements of cl 186.223.
9 The Tribunal noted that the second and third applicants applied for their visas on the basis that they were members of the first applicant’s family unit. It noted that in circumstances where the first applicant did not meet the requirements for the visa, and where there was no evidence that the other applicants met those requirements, the Tribunal was required to affirm the decision in respect of the second and third applicants also.
10 The applicants applied for judicial review of the Tribunal’s decision. A “show cause” hearing was held pursuant to r 44.12 on 17 August 2021. The first applicant appeared before the primary judge on behalf of the other applicants. They were not legally represented.
11 The primary judge referred in his reasons for judgment to the sole ground of review relied on by the applicants in their application which asserted that the Tribunal failed to consider all aspects of the first applicant’s claims. The primary judge noted that the particulars supplied did not identify any particular matter which the Tribunal failed to take into account. Moreover, as the primary judge found, the Tribunal was bound to affirm the Delegate’s decision because the nomination on which his visa application was based had not been approved. In those circumstances, the primary judge considered that the application for review of the Tribunal’s decision was bound to fail.
12 The primary judge said that he was satisfied that this was an appropriate case in which to exercise the Court’s power under r 44.12 to dismiss the application. His Honour’s decision to dismiss the application pursuant to that rule was in my opinion correct and not affected by any material error.
13 The applicant’s draft notice of appeal annexed to the application for leave to appeal includes the following ground of appeal:
The Tribunal failed to comply with s 359AA and/or s 359A of the Migration Act 1958 in respect of information that was to be the reason, or part of the reason, for affirming the decision under review.
Particulars
The Tribunal failed to provide information regarding the refusal of nomination of his employment company under section 359AA and/or s359A of the Migration Act.
14 This is not an argument that was raised before the primary judge. The draft notice of appeal does not identify the information which the applicants say the Tribunal failed to provide to them. The information that formed the basis for the Tribunal’s decision to affirm the decision under review could only be the information that the nomination had not been approved.
15 On 26 March 2019 the Tribunal wrote to the applicants inviting them to comment on certain information. It is unnecessary to set out the letter in full. Most relevantly, it stated:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
• The application for approval of the nominated position made by Tasne Enterprise Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration.
The nominator sought a review of that decision but that application for review has now been withdrawn. This means that the nominator’s application for the nominated position has not been approved.
This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.
If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 9 April 2019. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 9 April 2019, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 9 April 2019 and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
(original emphasis)
There is material before the Court to indicate that this letter was given to the applicants in accordance with the requirements of s 359B(2) of the Act and subregulation 4.17(4) of the Regulations.
16 There does not appear to be any basis for finding that the letter of 26 March 2019 failed to identify the relevant information. In my opinion, the invitation contained in the letter of 26 March 2019 complied with the requirements of s 395A of the Act. Section 359AA of the Act, which is concerned with the Tribunal’s power to give information to the applicant orally at a hearing conducted under s 360 of the Act, was not engaged in this case because the relevant information, and the invitation to comment on that information, had been communicated in writing in accordance with s 395A of the Act.
17 The applicants’ proposed appeal has no prospects of success. In those circumstances, leave to appeal should be refused. The first and second applicants must pay the first respondent’s costs of the application.
18 Orders accordingly.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. |
