Ahmed v Minister for Immigration & Citizenship [2007] FCA 905

FEDERAL COURT OF AUSTRALIA

Ahmed v Minister for Immigration & Citizenship [2007] FCA 905 SARFARAZ AHMED, RUBINA AHMED, IQRA AHMED AND AKASH AHMED v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL NSD 183 OF 2007

KIEFEL J

15 JUNE 2007

BRISBANE (HEARD IN SYDNEY) (VIA VIDEO LINK)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 183 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SARFARAZ AHMED

First Appellant

RUBINA AHMED

Second Appellant

IQRA AHMED

Third Appellant

AKASH AHMED

Fourth Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: KIEFEL J DATE OF ORDER: 15 JUNE 2007

WHERE MADE: brisbane (HEARD in SYDNEY)

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The first appellant pay the first respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 183 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SARFARAZ AHMED

First Appellant

RUBINA AHMED

Second Appellant

IQRA AHMED

Third Appellant

AKASH AHMED

Fourth Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: KIEFEL J

DATE: 15 JUNE 2007

PLACE: BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT 1 The first appellant and his family applied for a permanent visa in the Class BW (Employer Nomination Scheme), subclass 856, on 11 December 2003. The Minister's delegate refused the application; the Migration Review Tribunal affirmed that decision and the Federal Magistrates Court dismissed an application to review the Tribunal's decision. The appellants appeal from that decision. 2 To obtain the visa in question the appellants needed to satisfy the criteria for a subclass 856 visa contained in the Migration Regulations 1994. Relevantly, criterion 856.213(a) and 856.221 of Sch 2 of the regulations required that the first appellant had been nominated by his employer for an appointment in the employer's business and that the appointment had been approved in accordance with regulation 5.19. The approval spoken of in that regulation is that of the Minister or delegate and must be given only if the employer nomination meets the requirements of the regulation. 3 The first appellant's application for the visa in question was made on the basis of being nominated to work for Unique Tannery as a Leather Technician (Grader). He was advised by letter dated 2 February 2004 that the application was rejected and the requirements for the visa had not been met. In the reasons for decision it was said that the employer nomination of his position had been refused. This may be taken to refer to a refusal to approve the nomination. 4 Mr Sherafzal Khan has assumed the role of employer, in connexion with the nomination of the first appellant's employment, and the spokesman for the first appellant and his family. He appeared before his Honour Raphael FM and contended that there was a valid nomination in existence and that the first appellant had not been given an opportunity to explain this to the Tribunal. It appears that the Tribunal had made its decision without a hearing, for reasons to which I will shortly refer. His Honour understood that Mr Khan's contention was that an approval of nomination had been previously been given, in connexion with a temporary subclass 457 visa and it remained current. His Honour observed that no detail was provided of the approval. In any event it was not apparent to his Honour that an approval for that visa and one for the visa in question, a subclass 856 visa, were the same thing. The first appellant simply did not have a nomination approved for the visa he sought and could never have succeeded before the Tribunal, his Honour held. 5 On the hearing of the appeal Mr Khan sought to put forward further material, in support of his contention that a further approved nomination was not required, because one had been given in connexion with the grant of the subclass 457 visa. It may be accepted that there was a valid nomination for that purpose, because the appellants were granted subclass 457 visas in 2001 and 2002. The last of those expired on 11 December 2003, where the appellants applied for the visa now in question. 6 Subclass 457 and subclass 856 visas are different in type and effect and the requirements for them differ, as his Honour had inferred. The approvals of the Minister or delegate necessary for each visa have a different focus. It is not necessary to set out their respective criteria. The approval required for a subclass 856 visa is an approval in accordance with reg 5.19. That approval had been refused in this case. 7 A copy of the letter to Mr Khan, also of 2 February 2004, advising that that approval had been refused, was not in the appeal record. It was supplied in annexure 'A' to written submissions which are filed. The first of the requirements for approval, listed in reg 5.19(2)(a), is that the employer nomination concern the need for a paid employee in a business activity lawfully operated by the employer in Australia. The decision record states that no tannery business was located at the address given for the business by Mr Khan. The premises at that address were residential units. As his Honour observed no application to review that decision was made. 8 The appellant's case, put forward by Mr Khan, also suggested a possible breach of s 425 of the Migration Act 1958 (Cth). Relevantly it required that the appellants be invited to appear before the Tribunal unless it had invited comment upon information and none had been forthcoming. It is apparent that the Tribunal proceeded to its decision upon that basis and that it was entitled to do so. 9 The correspondence discloses that Mr Khan was an 'authorised recipient' in accordance with s 494D, a person authorised by the first appellant to receive documents in connexion with the visa application. No suggestion to the contrary of this was made. On 31 March 2005 the Tribunal wrote to Mr Khan, and invited him to comment upon information which it considered to be the reason, or part of a reason, for affirming the decision under review, namely that the nomination by Unique Tannery had been refused on 2 February 2004. Mr Khan responded by facsimile on 20 April 2005 saying that he was unable to comment because he was out of the country and the file was not with him and asked for an extension of time until 10 May 2005 to make submissions. By a letter dated 21 April 2005, bearing the notation 'Delivered by hand' and addressed to the first appellant himself, the Tribunal forwarded a copy of the letter of 31 March 2005 to Mr Khan. This was said to have been 'as per your request'. The Tribunal's records show that on the same day an application was made for access to the departmental files in the appellant's case. By facsimile dated 26 April 2005 addressed to Mr Khan, the Tribunal granted an extension of 28 days from that date by which to respond to its letter of 31 March 2005. It advised that if it did not receive any additional information within that time, or as extended, it may proceed to make a decision. It included a note to Mr Khan, as authorised recipient, to advise the first appellant about the letter. The same day the Tribunal's files note that a recommendation for approval was given for access to its records. Access was apparently given on 5 May 2005. It is not disputed that the letter of 31 March 2005 was not answered by the first appellant or Mr Khan. In the absence of submissions the Tribunal made its decision and notified Mr Khan on 16 July 2005 that it had done so and that it would be formally handed down on 5 August 2005. 10 It is possible that Mr Khan was in New Zealand, as he says. There is however no evidence about that or the other events concerning the first appellant except that he did request and receive a copy of the letter of 31 March 2005. The request for access to the file may have followed upon conversations with Mr Khan. If so it might suggest that consideration was being given to a response or to some other course of action. There seems no reason to believe that Mr Khan did not have the facsimile message of 26 April 2005 brought to his attention, if he was overseas, when that of 31 March 2005 was. In any event these are matters unexplained and irrelevant to the question whether the procedural requirements of the Act have been complied with. 11 The first appellant was entitled to withdraw or vary his notice authorising Mr Khan to be his recipient (s 494D(3)). In the absence of that withdrawal the notice of 26 April 2005 is taken to have been given to the first appellant (s 494D(2)). There is nothing to suggest that he did so. Mr Khan sought to overcome this problem by suggesting that the Tribunal's letter of 21 April 2005 was evidence that the first appellant attended upon the Tribunal and requested that all future correspondence be forwarded to him, the first appellant, personally. He said that he spoke to the first appellant from New Zealand and advised him to do so. The letter serves only to show that there was some contact with the Tribunal in connexion with obtaining a copy of the letter of 31 March 2005. There is no evidence of any request or advice with respect to correspondence. It does not appear to have been a matter raised before his Honour and has the hallmarks of recent manufacture. 12 There is no merit in the appeal. The procedures required by the Act were complied with. The appellants could not meet the criteria for the visa in question for the reason that the nomination had not been approved. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.