1412960 (Migration)
[2016] AATA 4193
•3 August 2016
1412960 (Migration) [2016] AATA 4193 (3 August 2016)
DECISION RECORD
DIVISION:Migration and Refugee Division
APPLICANT: Mr Eyal Hazan
CASE NUMBER: 1412960
DIBP REFERENCE: BCC2014/955286
MEMBERS:Deputy President Stephanie Forgie
Senior Member Miriam Holmes
PLACE OF DECISION: Melbourne
DECISION:The Tribunal decides to:
remit the application for a Temporary Business Entry (Class UC) visa to the Minister for Immigration and Border Protection for reconsideration with a direction that the applicant meets the following criterion for a Subclass 457 visa:
cl 457.321 of Schedule 2 to the Migration Regulations1994.
I, Deputy President Stephanie Forgie, certify that this is the Tribunal’s statement of decision and reasons
Statement made on 03 August 2016 at 12.20pm
CATCHWORDS – MIGRATION – application to review decision of Minister to refuse subclass 457 visa – whether applicant is a member of spouse’s family unit – decision of Minister set aside and matter remitted to Minister for further consideration of application with direction that applicant meets cl 457.321 of Schedule 2 to the Migration Regulations
PRACTICE AND PROCEDURE – whether Tribunal has jurisdiction to consider application review – Tribunal has jurisdiction
PRACTICE AND PROCEDURE – doctrine of precedent – whether decisions of Federal Circuit Court binding on Tribunal when reviewing decision in Migration and Refugee Division - doctrine applies
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth); ss 43C, 44, 44AA
County Court Act 1958 (Vic)
Constitution; s 75(v)
Federal Circuit Court of Australia Act 1999 (Cth)
Federal Court of Australia Act 1976 (Cth); ss 24, 25, 25(1AA)(a), 28
Legislation Act 2003 (Cth); s 13(1)(b)Migration Act 1958 (Cth); ss 5(1), 5F, 5F(1), 5F(2), 5F(3), 12, 29(1), 30(1), 30(2), 31(1), 31(2), 31(5), 65, 140A, 140E(3), 140GB(1)(a), 140GB(1)(b), 140GB(4), 140H(1), 150GB(3), 337, 338(2), 338(2)(d), 411, 474(7), 474A, 500, 501, 501A, 501B, 501C
Migration Regulations 1994 (Cth); rr 1.03, 1.12(1), 1.13, 1.15A(1), 1.15A(2), 1.15A(3), 1.15A(4), 1.20(1), 1.20(2), 1.20(4), 1.20H, 2.56(k), 2.57(1), 2.59, 2.72, 2.72(5), 2.72(6), 2.72(7), 2.72(7A), 2.75(2), 2.78, 2.79, 2.80, 2.81, 2.83, 4.02(1A), 4.02(1AA); Sch 1 – cll 1223A, 1223A(3), 1223A(bc), 1223A(1)(bb); Sch 2 – cll 457.2, 457.211, 457.221-457.225, 457.223, 457.223(4), 457.321, 457.324, 457.411
Migration Amendment Regulations 2009 (No. 5)
Migration Amendment Regulations 2009 (No. 9)Migration Legislation Amendment Regulation 2012 (No. 4)
CASES
Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182; (2015) 237 FCR 365
Algama v Minister for Immigration & Multicultural Affairs [2001] FCA 1884; (2001) 115 FCR 253; 194 ALR 37
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485; 112 ALR 627
Brennan v Comcare (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542
Comcare v PVYW [2013] HCA 41; 250 CLR 246; 303 ALR 1; 136 ALD 1
Commonwealth v Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49; 40 ALR 673
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; 169 ALR 400; 74 ALJR 490; 60 ALD 342; 106 LGERA 419
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; 214 ALR 92
Damjanovic & Sons Pty Ltd v The Commonwealth [1968] HCA 42; (1968) 117 CLR 390
El Masri v Minister for Immigration and Border Protection [2015] FCAFC 181
Ex parte King; Re Blackley [1938] NSWStRp 26; (1938) 38 SR (NSW) 483
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; 236 ALR 209; 81 ALJR 1107
Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580
Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16; (2007) 158 FCR 325; 239 ALR 85; 65 ATR 369; 2007 ATC 4236
Foster v Northern Territory of Australia [1999] FCA 1235
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543; 81 ALR 417
Hatzimanolis v ANI Corporation Limited [1992] HCA 21; (1992) 173 CLR 473; 106 ALR 611
Keramaniakis v Wagstaff [2005] NSWDC 14
Kim and Others v Minister for Immigration and Citizenship and Migration Review Tribunal [2007] FMCA 166
Lee v Minister for Immigration and Border Protection [2016] FCA 294
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Ogden Industries Pty Ltd v Lucas [1970] AC 113; 3 WLR 75
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490
Re Smith and Repatriation Commission [2015] AATA 27; (2015) 65 AAR 390
Re Tyler; Ex parte Foley [1994] HCA 25; (1994) 181 CLR 18; 121 ALR 153
Sharma v Minister for Immigration & Anor [2016] FCCA 1073
Sharma v Minister for Immigration and Border Protection [2015] FCAFC 180
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487; 247 ALR 467; 102 ALD 31
The Queen v Pham [2015] HCA 39; (2015) 325 ALR 400
Valentine v Eid (1992) 27 NSWLR 615
Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88; 18 ALR 257
Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 116 FCR 58Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584; 185 ALR 233
OTHER MATERIALS
Black’s Law Dictionary with pronunciations, 5th edition, West Publishing Company, St Paul, 1989
Pearce, D C; Geddes, R S, Statutory Interpretation in Australia 8th edition, LexisNexis, Butterworths, Australia, 2014
Explanatory Memorandum to the Migration Legislation Amendment (Sponsorship Measures) Bill 2003
Explanatory Memorandum to the Migration Legislation Amendment (Worker Protection) Bill 2008
STATEMENT OF DECISION AND REASONS
On 11 March 2014, Ms Shirly Fadida applied for a Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457) visa (Subclass 457 visa). Also on 11 March 2014, Schepisi on Sturt Pty Ltd as trustee for the Schepisi on Sturt Family Trust (Schepisi), which was and remains an approved standard business sponsor under the Migration Act 1958 (Migration Act) nominated Ms Fadida in relation to the occupation of Café or Restaurant Manager. On 9 April 2014, Mr Eyal Hazan applied for a Subclass 457 visa. He did so on the basis that he was a member of Ms Shirly Faida’s family unit. The sponsor’s nomination was approved on 20 May 2014 and Ms Faida’s application for a Subclass 457 visa was approved on the following day: 21 May 2014. Mr Hazan’s application was refused some weeks later on 9 July 2014 on the basis that a delegate of the Minister for the purposes of s 65 of the Migration Act was not satisfied that Mr Hazan had not met cl 457.321 of Schedule 2 to the Migration Regulations 1994 (Regulations) i.e. he was not a member of Ms Fadida’s family unit. As one criterion had not been satisfied, the delegate did not consider whether Mr Hazan met the other criteria specified in the Regulations.
There are two issues in this case. The first is whether the Tribunal has jurisdiction to consider Mr Hazan’s application for review. We have decided that it does. That raises the second issue which is whether Mr Hazan is a member of Ms Fadida’s family unit. We have decided that he is. Therefore, we have remitted the matter to the Minister with a direction that Mr Hazan satisfies criterion 457.321 of Schedule 2 to the Regulations.
DOES THE TRIBUNAL HAVE JURISDICTION TO CONSIDER Mr HAZAN’S APPLICATION FOR REVIEW?
Legislative Framework
The Minister may grant a non-citizen permission to travel to and enter in Australia or remain in Australia or both. The permission is known as a “visa”.[1] Visas may be either permanent or temporary.[2] A visa that permits its holder to remain in Australia during a specified period, until a specified event happens or while the holder has a specified status is a temporary visa.[3] Visas are further identified by reference to their class. Some classes are specified in the Migration Act itself and others are prescribed.[4] A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.[5] The Regulations may prescribe criteria for a visa or visas of a specified class.[6]
[1] Migration Act; s 29(1)
[2] Migration Act; s 30(1)
[3] Migration Act; ss 5(1) and 30(2)
[4] Migration Act; ss 31(1), (2) and (5)
[5] Migration Act; s 31(5)
[6] Migration Act; s 31(3)
A. Class 457 visa
Clause 457.511 of Schedule 2 to the Regulations provides that a Subclass 457 visa is a temporary visa[7] permitting its holder to remain in Australia for the periods it specifies. The periods are determined by reference to the circumstances of the holder at the time the visa was granted. In all cases, the visa holder is permitted to travel to, and enter, Australia on multiple occasions before the end of the relevant period.
[7] The expression “temporary visa” is defined in s 5(1) of the Migration Act to have the meaning given by subsection 30(2). That section provides that: “A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain: (a) during a specified period; or
A.1 Application for a Subclass 457 visa
Clause 1223A of Schedule 1 to the Regulations sets out the way in which an application for a Subclass 457 visa either may or, in some circumstances, must, be made. A person who applies claiming that he or she is a member of a family unit of a person who is seeking a Subclass 457 visa (primary applicant) may make an application at the same time and place as, and combined with, an application by that primary applicant.[8] Clause 1223A(1)(bb) applies to a person who applies on the basis that he or she is a member of a family unit of the primary applicant for a Subclass 457 visa but is not making a combined application with that person. He or she must make an internet application using the form specified by the Minister in an instrument in writing for the purposes of cl 1223A(1)(bb). If such an applicant has been unable to lodge in accordance with cl 1223A(1)(bb) in circumstances specified by the Minister, an application may be made in a way specified by the Minister.[9]
[8] Regulations; Schedule 1, cl 1223A(3)
[9] Regulations; Schedule 1, cl 1223A(bc)
A.2Criteria specified in relation to a Subclass 457 visa
The criteria that are specified in relation to a Subclass 457 visa are divided into two groups. They are designated as either primary criteria or secondary criteria. Each of those categories is further divided into criteria that have to be satisfied at the time of application and others that have to be satisfied at the time of decision. The primary criteria must be satisfied by at least one applicant for a Subclass 457 visa. That person is described as “the primary applicant”. If there are other applicants who are members of the family unit of that person, those other applicants do not need to satisfy the primary criteria.[10]
[10] Note to cl 457.2
A.2.1 Class 457 visa: Primary criteria
Primary criteria set out in cl 457.211 have to be satisfied at the time of application. Those in cll 457.221 to 457.225 must be satisfied at the time of decision. Of relevance in this case is cl 457.223 which provides that an applicant must meet the requirements of either cl 457.223(2) or (4). Only cl 457.223(4) is relevant:
“The applicant meets the requirements of this subclause if:
(a)each of the following applies:
(i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii)the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii)the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect; and
(ba)either:
(i)the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii)each of the following applies:
(A)the applicant is employed to work in the nominated occupation;
(B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
(C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d)the Minister is satisfied that:
(i)the applicant’s intention to perform the occupation is genuine; and
(ii)the position is associated with the nominated occupation is genuine; and
(da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation – the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(eb)If:
(i)the applicant is not an exempt applicant; and
(ii) subclause (6) does not apply to the applicant;
the applicant:
(iv)has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v)achieved within the period specified by the Minister in the instrument in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec)if the Minister requires the applicant to demonstrate his or her English language proficiency – the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f)either:
(i)there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.”
The expression “standard business sponsor” is defined in r 1.03 to mean:
“… a person who:
(a)is an approved sponsor; and
(b)is approved as a sponsor in relation to the standard business class sponsor by the Minister under subsection 140E(1) of the Act.
Note 1:Approved sponsor is defined in subsection 5(1) of the Act. A person is no longer an approved sponsor in relation to a class of sponsor if the person’s approval to be a sponsor has been cancelled under section 140M of the Act, or has otherwise ceased to have effect under section 140G of the Act.
Note 2:…
Note 3:…”
Section 5(1) of the Migration Act defines the expression “approved sponsor” to mean:
“approved sponsor means:
(a)a person:
(i)who has been approved by the Minister under section 140E in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and
(ii)whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or
(b)a person (other than a Minister) who is a party to a work agreement.
Note:A partnership or an unincorporated association may be an approved sponsor: see subsections 140ZB(1) and 140ZE(1) respectively.”
The word “sponsor” is defined in r 1.20(1) of the Regulations:[11]
“The sponsor of an applicant for a visa is a person (except a person who proposes on the relevant approved form another person for entry to Australia as an applicant for a permanent humanitarian visa) who undertakes the obligations stated in subregulation (2) in relation to the applicant.”
[11] Regulations; s 1.03 We note that, unless there is a contrary intention indicated, the expressions used in an instrument made under a particular piece of legislation have the same meaning as they have in that legislation as it is in force from time to time: Legislation Act 2003; s 13(1)(b). There is no contrary intention in the Regulations.
If it were not for r 1.20(4), to which we will come in a moment, the relevant provision in r 1.20(2) would be r 1.20(2)(b). It provides:
“Subject to subregulation (4), the obligations of a sponsor in relation to an applicant for a visa are the following:
(a)…
(b)if the application is for a temporary visa (other than a Resolution of Status (Temporary) (Class UH), Partner (Provisional) (Class UF), Partner (Temporary) (Class UK) or extended Eligibility (Temporary) (Class TK) visa) – the sponsor undertakes to accept responsibility for:
(i)all financial obligations to the Commonwealth incurred by the applicant arising out of the applicant’s stay in Australia; and
(ii)compliance by the applicant with all relevant legislation and awards in relation to any employment entered into by the applicant in Australia; and
(iii)unless the Minister otherwise decides, compliance by the applicant with the conditions under which the applicant was allowed to enter Australia;”.
Regulation 1.20, however, does not apply to a Subclass 457 visa for it is expressly excluded from the application of the regulation by r 1.20(4)(h).
Clause 457.223(4)(a)(iii) of Schedule 2 to the Regulations requires that “the approval of the nomination has not ceased as provided for in regulation 2.75”. Regulation 2.75(2) provides:
“An approval of a nomination ceases on the earliest of:
(a)the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and
(b)12 months after the day on which the nomination is approved; and
(c)the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Temporary Work (Skilled)) visa; and
(d)if the approval of the nomination is given to a standard business sponsor – 3 months after the day on which the person’s approval as a standard business sponsor ceases; and
(e)if the approval of the nomination is given to a standard business sponsor, and the person’s approval as a standard business sponsor is cancelled under subsection 140M(1) of the Act – the day on which the person’s approval as a standard business sponsor is cancelled; and
(f)if the approval of the nomination is given to a party to a work agreement (other than a Minister) – the day on which the work agreement ceases.”
A.2.2 Class 457 visa: Secondary criteria
The primary applicant does not have to satisfy any secondary criteria at the time of application. A person who is a member of the family unit of the primary applicant, who has satisfied the primary criteria, must satisfy the secondary criteria at the time that the decision is made on an application for a Subclass 457 visa. Several secondary criteria are set out in relation to a Subclass 457 visa but only two are relevant. The first is cl 457.321, which the delegate found Mr Hazan had not satisfied. It reads:
“The applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.”
The second secondary criterion that is relevant is found in cl 457.324. That clause sets out the following secondary criteria that must be satisfied at the time a decision is made on an application for a Subclass 457 visa. In so far as it has relevance in this case, it reads:
“(1) The applicant is included in any nomination that is required in respect of the primary applicant.
(2)If the applicant is not included in any nomination that is required in respect of the primary applicant:
(a)the standard business sponsor who has the most recent approved nomination under section 140GB of the Act, or under regulation 1.20H as in force immediately prior to 14 September 2009, of an occupation in relation to the primary applicant has agreed in writing that the applicant may be a secondary sponsored person in relation to the standard business sponsor; or
(b)the former standard business sponsor who has the most recent approved nomination under section 140GB of the Act, or under regulation 1.20H as in force immediately prior to 14 September 2009, of an occupation in relation to the primary applicant has agreed in writing that the applicant may be a secondary sponsored person in relation to the former standard business sponsor; or
(c)…
(d)…”[12]
[12] Regulation 1.20H was repealed by the Migration Amendment Regulations 2009 (No. 5) SLI 2009/115.
The expression “secondary sponsored person” has the meaning given by r 2.57(1).[13] Only the first meaning may have relevance in this case:
[13] Regulations; r 1.03. It was concerned with the Minister’s approval of a nomination of an activity
“secondary sponsored person
(a)in relation to a person who is or was approved as a sponsor in a class of sponsor (the approved sponsor) under subsection 140E(1) of the Act - means:
(i)a person:
(A)who holds a visa prescribed for the purposes of section 140A of the Act; and
(B)who was granted the visa on the basis of having satisfied the secondary criteria for the grant of the visa; and
(C)either:
(I)who was last identified in an approved nomination by the approved sponsor; or
(II)in relation to whom the approved sponsor was the last person to have agreed, in writing, to the person being a secondary sponsored person in relation to the approved sponsor; or
(ii)…
(b)…”
Clause 457.411 prescribes the circumstances in which a Subclass 457 visa may be granted. Those circumstances are that the applicant must not be in immigration clearance. Otherwise, he or she may be inside or outside Australia.
B.Nomination as a sponsor
The process of approving a sponsor is set out in Division 3A of Part 2 of the Migration Act. In summary, a person must apply to be approved as a sponsor in relation to one or more classes of visa prescribed by the Regulations. Those visas include the Subclass 457 (Temporary Work (Skilled)) visa.[14] The Minister must approve that person as a sponsor if he or she satisfies prescribed criteria. Different criteria may be prescribed for different classes of visa.[15]
[14] Migration Act; s 140A and see also Regulations; r 2.56(k)
[15] Migration Act; s 140E(3)
Once approved, a sponsor may nominate either a proposed occupation, program or activity[16] or a person who is an applicant, or proposes to be an applicant, for a visa of a prescribed kind in relation to:
“(i) the applicant or proposed applicant’s proposed application; or
(ii)the program to be undertaken by the applicant or proposed applicant; or
(iii)the activity to be carried out by the applicant or proposed applicant; …”.[17]
[16] Migration Act; s 140GB(1)(b)
[17] Migration Act; s 140GB(1)(a)
Under the authority of s 140GB(3), the Regulations establish a process for the Minister to approve an approved sponsor’s nomination. Different criteria and processes may be prescribed for different kinds of visa and different classes in relation to which a person may be approved as a sponsor.[18]
[18] Migration Act; s 140GB(4)
Part 2A of the Regulations is relevant to sponsorship under Division 3A of Part 2 of the Migration Act. Regulation 2.59 sets out the criteria to be met for approval as a standard business sponsor. Schepisi met those criteria and was approved.
C.Approval of nomination of standard business sponsor in relation to a proposed applicant for a Subclass 457 visa
Under s 140GB of the Migration Act, an approved sponsor may nominate an applicant, or proposed applicant, for a visa of the prescribed kind, including a Subclass 457 visa, in relation to that person’s proposed occupation, the program to be undertaken by the person or the activity he or she is to carry out or a proposed occupation, program or activity.[19] Subject to exceptions that do not apply in this case, the Minister must approve an approved sponsor’s nomination if the prescribed criteria are met.
[19] Migration Act; s 140GB(1)
In relation to a Subclass 457 visa, those criteria are set out in r 2.72 of the Regulations. Among others, they refer to a standard business sponsor and set out the criteria that the sponsor must meet. Among them is the requirement that the sponsor has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.[20] Regulations 2.72(6), (7) and (7A) refer to criteria to be met when the sponsor nominates a person who is already the holder of a Subclass 457 visa. Those regulations refer to situations in which the holder of a Subclass 457 visa has been granted that visa on the basis of being a member of a family unit of another person who has been granted a Subclass 457 visa. Regulation 2.72(6), for example, requires the Minister to be satisfied that the sponsor has listed each such person on the nomination made in relation to that person. No requirement to nominate family unit members is imposed in relation to a nomination of an occupation in relation to an applicant, or proposed applicant, for a Subclass 457 visa.
[20] Regulations; r 2.72(5)
D. Sponsorship obligations
Section 140H(1) of the Migration Act provides that:
“A person who is or was an approved sponsor must satisfy the sponsorship obligations prescribed by the regulations.”
Division 2.19 of Part 2A of the Regulations sets out those obligations. They range from obligations to cooperate with inspectors[21] and to provide records and other information to the Minister[22] to obligations to ensure equivalent terms and conditions of employment.[23] The latter relates to activities of a person who is a standard business sponsor of a primary sponsored person. A “primary sponsored person” is defined in r 2.57(1) of the Regulations.[24] The expression “primary sponsored person”:
[21] Regulations; r 2.78
[22] Regulations; r 2.83
[23] Regulations; r 2.79
[24] Regulations; r 1.03
“(a) in relation to a person who is or was approved as a sponsor in a class of sponsor (the approved sponsor) under subsection 140E(1) of the Act – means:
(i)a person:
(A)who holds a visa prescribed for the purpose of section 140A of the Act; and
(B)who:
(I)was last identified in an approved nomination by the approved sponsor; or
(II)satisfied the primary criteria for the grant of the visa on the basis of the approved sponsor having agreed, in writing, to be the approved sponsor in relation to the person; or
(ii)a person:
(A)who is in the migration zone; and
(B)who does not hold a substantive visa; and
(C)whose last substantive visa was a visa prescribed for section 140A of the Act; and
(D)who:
(I)was last identified in an approved nomination by the approved sponsor; or
(II)satisfied the primary criteria for the grant of the visa on the basis of the approved sponsor having agreed, in writing, to be the approved sponsor in relation to the person; or
(b)in relation to a party to a work agreement (other than a Minister) or a former party to a work agreement (other than a Minister) – means:
(i)a person:
(A)who holds a Subclass 457 (Temporary Work (Skilled)) visa; and
(B)who was last identified in an approved nomination by the party to a work agreement or the former party to a work agreement; or
(ii)a person:
(A)who is in the migration zone; and
(B)who does not hold a substantive visa; and
(C)whose last substantive visa was a Subclass 457 (Temporary Work (Skilled)) visa; and
(D)who was last identified in an approved nomination by the party to a work agreement or the former party to a work agreement.”
Other obligations imposed by Division 2.19 of Part 2A of the Regulations relate not only to the primary sponsored person but to a secondary sponsored person. Regulation 2.80, for example, imposes an obligation on a standard business sponsor to pay the travel costs of the primary sponsored person and the secondary sponsored person in certain circumstances and for a certain period of time. An approved sponsor is also obliged to reimburse the Commonwealth if it incurs costs in locating and removing, as an unlawful non-citizen, the primary sponsored person or the secondary sponsored person.[25] We have set out the meaning of “secondary sponsored person” at [15] above.
[25] Regulations; r 2.81
Review of decision to refuse grant of Subclass 457 visa
The Migration Act makes provision for the review of certain decisions made by the Minister or his delegates. Review rights given in Part 7 of that legislation do not apply as it applies only to Part 7-reviewable decisions. They are set out in s 411 and, in general terms, may be described as decisions relating to protection type visas. Part 9 provides for review of decisions to refuse to grant or to cancel visas on particular grounds. Those grounds do not arise in this case.
That brings us to Part 5-reviewable decisions, which are the subject of Part 5 of the Migration Act. Until 1 July 2015, they were referred to as “MRT-reviewable decisions” to reflect the fact that, before its amalgamation with the Tribunal, jurisdiction to review them lay with the former Migration Review Tribunal (MRT). The change in the name given to the class of decisions that are reviewable to “Part 5-reviewable decisions” did not bring with it any change in the criteria defining that class.[26] Although there are some exceptions and qualifications to the definition of that expression, those exceptions and qualifications do not apply in this case. Of relevance in this case is s 338(2). Omitting qualifications that do not apply in this case:
[26] See further [102] below
“A decision … to refuse to grant a non-citizen visa is a Part 5-reviewable decision if:
(a) the visa could be granted while the non-citizen is in the migration zone; and
(b)the non-citizen made the application for the visa while in the migration zone; and
(c)the decision was not made when the non-citizen:
(i)was in immigration clearance; or
(ii)had been refused immigration clearance and had not subsequently been immigration cleared; and
(d)where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i)the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii)an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.”
Regulation 4.02(1A) provides that, for the purposes of s 338(2)(d), a Subclass 457 (Temporary Work Skilled)) visa is a prescribed visa. In Part 5 of the Act, the word “sponsored” is given its meaning by the Regulations.[27] Regulation 4.02(1AA) provides that, for the purposes of s 337, the word “… sponsored includes being identified in a nomination under section 140GB of the Act.” Section 337 provides that the word “nominated” is also given the same meaning as in the Regulations.[28] That word is not defined in the Regulations although the word “nominator” is given the meaning set out in r 1.13:
“(1) The nominator of an applicant for a visa is a person who, on the relevant approved form, nominates another person as an applicant for a visa of a particular class.
(2)However, a person who proposes another person for entry to Australia as an applicant for a permanent humanitarian visa is not the nominator of the other person.”
Does the tribunal have jurisdiction to consider Mr Hazan’s application for review?
[27] Migration Act; s 337
[28] Migration Act; s 337
A. To what extent is the Tribunal bound by previous authority?
We are, of course, bound by the doctrine of precedent but an initial question arises as to the identification of the particular authorities that are properly regarded as precedent. We considered that issue in Attachment A. For the reasons that we give in that Attachment, we have concluded that the doctrine of precedent, or stare decisis, requires us to apply the ratio decidendi, or the point that determined the relevant judgment, of the Federal Circuit Court when that judgment has three features. One is that the judgment relates to an AAT migration decision in relation to which the Federal Circuit Court has been given the same original jurisdiction as the High Court has under paragraph 75(v) of the Commonwealth Constitution. A second is that the judgment considers and applies the same law, be that statutory law or common law, as that under consideration by the Tribunal. A third is that it has not been superseded by a judgment of a superior court be it the Federal Court or the High Court.
There are two decisions of the Federal Circuit Court or its predecessor, the Federal Magistrates Court, which have been brought to our attention. They are: Kim and Others v Minister for Immigration and Citizenship and Migration Review Tribunal[29] (Kim) in 2007 and Sharma v Minister for Immigration & Anor[30] (Sharma) in 2016. In between those two judgments, a Full Court of the Federal Court delivered its judgment in Ahmad v Minister for Immigration and Border Protection[31] (Ahmad) in 2013. At the same time, the Full Court also delivered its judgments in Sharma v Minister for Immigration and Border Protection[32] (Manisha Sharma) and El Masri v Minister for Immigration and Border Protection[33] (El Masri). The latest relevant judgment has been that of a single Judge, Flick J, in Lee v Minister for Immigration and Border Protection[34] (Lee).
[29] [2007] FMCA 166
[30] [2016] FCCA 1073
[31] [2015] FCAFC 182; (2015) 237 FCR 365; Katzmann, Robertson and Griffiths JJ
[32] [2015] FCAFC 180
[33] [2015] FCAFC 181
[34] [2016] FCA 294; Flick J
In Attachment B, we have set out our analysis of each judgment. Included in that analysis, are the relevant provisions of the Migration Act as they applied at the time the visa applicant applied to the Tribunal or to one of its predecessor tribunals, the Migration Review Tribunal. Throughout the period from 12 December 2005, the terms of s 338(2)(d) of the Migration Act have remained the same. What has changed are the sponsorship provisions, the amendment of s 337 of the Migration Act and the variation of the criteria that must be met by a secondary applicant for a Subclass 457 visa. Those changes came after the judgment of the then Federal Magistrates Court in Kim and altered the context in which s 338(2)(d) was to be applied. Therefore, it could not be said that the law considered in Kim was that which we must consider today. As a consequence, we are not bound by that decision.
We are bound by the judgments of the Full Court of the Federal Court in Ahmad, Manisha Sharma and El Masri, all of which are to like effect. The Federal Court is a superior court whose judgments bind the Tribunal when they relate to the same subject matter, be that subject matter the common law or statutory law.
Although the Federal Circuit Court delivered its judgment in Sharma after that of the Federal Court in Ahmad, this is not a case in which the Tribunal is bound by it. It is not a judgment that considered the same subject matter as the Federal Court. The subject matter it considered was significantly different from that considered in Ahmad and could not be said to have been decided simply in ignorance of some aspect of the law or of an authority so that it must be regarded as per incuriam.[35] If it were to be regarded in that way, we would have considered ourselves bound by it but the differences are so great that we have concluded that the subject matter is not the same as that which we must consider.
[35] See SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487; 247 ALR 467; 102 ALD 31 at [42]; 500-501; 479-480; 43-44 at [79] below
We are bound by the judgment of Flick J in Lee even though it is a judgment of a single Judge and not of a Full Court of the Federal Court. That makes no difference for the judgment in Lee is consistent with that in Ahmad. The consent judgment made by the Federal Circuit Court is not relevant for a judgment entered by consent and not after a contested hearing has no place in the doctrine of precedent.
B. Application of the principles in Ahmad
In considering whether we have jurisdiction to consider Mr Hazan’s application, we have followed the reasoning of the Full Court of the Federal Court in Ahmad and particularly at [95]-[100] of its judgment in relation to the interpretation and application of s 338(2)(d) of the Migration Act. There is no question that a Subclass 457 visa is a temporary visa and that is has been prescribed for the purposes of s 338(2)(d) or that Mr Hazan is a “non‑citizen”. That leaves the central issue in the opening words of s 338(2)(d) for resolution i.e. “whether it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor”.[36] That is the first question that s 338(2)(d) requires us to address. For a person in Mr Hazan’s circumstances, that leaves the question whether it is a criterion for the grant of the visa for which he has applied that he be sponsored by an approved sponsor.
[36] See also Ahmad [2015] FCAFC 182; (2015) 237 FCR 365 at [95]; 384
We have started our search for the relevant criterion in cl 457.324(1) of Schedule 2 to the Regulations. It recognises that a secondary visa applicant may be included in any nomination required in respect of a primary visa applicant. If a secondary visa applicant is included in such a nomination, the effect of reading the definition of “sponsored” in s 337 of the Migration Act with r 4.02(1AA) of the Regulations leads to the conclusion that a person who is identified in a nomination under s 140GB will be taken to have been sponsored. Going back to s 338(2)(d), that means that criterion 457.324(1) that the “… applicant is included in any nomination required in respect of the primary applicant”, is “.. a criterion for the grant of a visa that the non-citizen is sponsored by an approved sponsor” (emphasis added).
There can be two outcomes for a secondary visa applicant who has been included in a nomination. We will look at both. In doing so, we have kept in mind that the jurisdictional provisions of s 338(2)(d) of the Migration Act refer only to situations where it is a criterion for the grant of a visa that a non-citizen is sponsored by an approved sponsor. Consistently with s 337 of the Migration Act and r 4.02(1), a person who is nominated by an approved sponsor will be taken to have been sponsored by an approved sponsor. That does not, however, lead to the conclusion that a refusal of an approved sponsors’ nomination of a person in relation to an occupation, program or activity, or proposed occupation, program or activity, plays any part in s 338(2)(d). A clear distinction is made in ss 140E and 140GB between approval of a sponsor and approval of an approved sponsor’s nomination. That same distinction is drawn in s 338(2)(d). It refers only to there being a criterion for the grant of a visa that a non-citizen is sponsored by an approved sponsor and to a decision not to approve the sponsor. It makes no reference to an approved sponsor’s nomination of a person in relation to an occupation, program or activity, or proposed occupation, program or activity. No reference is made in s 338(2)(d) to a decision refusing to approve an approved sponsor’s nomination under s 140GB.
Decision to refuse secondary visa application but no decision to refuse to approve sponsor
(1)While that sponsorship (be it described as a nomination or otherwise) continues, the Tribunal has jurisdiction to consider an application for review lodged by a secondary visa applicant.
(2)That is so because he or she will meet the requirements of s 338(2)(d)(i) i.e. that the non-citizen is sponsored by an approved sponsor at the time of the application to review the decision to refuse the grant of the visa.
(3)There might be some concern that the provisions of r 2.75 of the Regulations[37] might apply so that the nomination of the secondary visa applicant ceases when the primary visa applicant’s visa application is granted. We do not think that those regulations work in that way.
(4)Regulation 2.75 is concerned only with the nomination of an occupation in which a holder of, or an applicant or proposed applicant for, a Subclass 457 visa is identified as the person who will work in the occupation. It provides for the time at which approval of the nomination of that occupation ceases. One of the triggers for the cessation of an approval of a nomination is:
“the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Temporary Work (Skilled)) visa”.[38]
[37] Regulation 2.75A is also inapplicable in the case of a Subclass 457 visa for it applies only to a nomination of an occupation, a program or an activity in relation to a person and a visa that is either a Subclass 401, 402, 411, 420, 421, 428 or 442 visa.
[38] Regulations; r 2.75(2)(c)
(5)Certainly, the nomination of the primary visa applicant ceases on the grant of a Subclass 457 visa but r 2.75 does not purport to apply to the nomination of a secondary visa applicant. Regulation 2.75(1) states that the regulation applies only to “a nomination of an occupation in which a holder of, or an applicant or proposed applicant for, a Subclass 457 visa is identified as the person who will work in the occupation”. It does not purport to deal with the cessation of the nomination of a secondary visa applicant who will not work in the occupation but who has been nominated, and so sponsored. The nomination of the secondary visa applicant continues.
Decisions not to approve sponsor and to refuse secondary visa application
(1)If a decision were made not to approve the sponsor, the Tribunal would not have jurisdiction to review a decision refusing a secondary visa applicant’s visa application unless the following two things were satisfied.
(a)The sponsor had made an application for review of the decision not to approve him or her as a sponsor; and
(b)The sponsor made that application and its resolution was still pending when the secondary visa applicant lodged his or her application for review of the decision to refuse to grant a Subclass 457 visa.[39]
[39] Although not decided by the Full Court of the Federal Court in Ahmad [2015] FCAFC 182; (2015) 237 FCR 365 at [113]; 386 our conclusion is consistent with its reluctance to accept a broad submission that s 338(2)(d)(i) would be satisfied simply on the basis of having previously been identified in a nomination and regardless of whether the “nomination decision” were adverse. The “nomination decision” to which the Court referred was a decision to approve or not approve a nomination application by the sponsor.
We will illustrate what we have said by reference to Mr Hazan’s case keeping in mind that Schepisi had been approved as a sponsor. Had Mr Hazan been included in a nomination, cl 457.324(1) would have been a criterion he had to satisfy. He would not have had the option of satisfying any of the criteria in cl 457.324(2) for they only come into play if an applicant is not included in such a nomination. If Mr Hazan had been included in a nomination required in respect of a primary applicant under s 140GB of the Migration Act, the criterion under cl 457.324(1) would have been a criterion that he is sponsored by an approved sponsor within the meaning of s 338(2)(d). That would follow from r 4.02(1AA) of the Regulations. That regulation provides that, for the purposes of s 337, which is a definition provision, the word “… sponsored includes being identified in a nomination under section 140GB of the Act”. Going back to s 338(2)(d), had Mr Hazan been included in such a nomination, it would have followed that he would then have had to establish that either s 338(2)(d)(i) or (ii) applied. Ms Fadida has been granted a Subclass 457 visa but that would not have affected his nomination. As Schepisi’s nomination, and so sponsorship, had not been refused, he would have satisfied s 338(2)(d)(i). Section 338(2)(d)(ii) would not have come into play.
On the evidence that we do have, we are satisfied that Mr Hazan was not included in any nomination in respect of Ms Fadida, the primary visa applicant, under s 140GB. That brings us to the criteria in cl 457.324(2) and particularly the criterion in cl 457.324(2)(a). The standard business sponsor, Schepisi, has the most recent approved nomination under s 140GB of an occupation in relation to Ms Fadida. Clause 457.324(2)(a) will be satisfied in this case if Schepisi has agreed in writing to Mr Hazan’s being secondary sponsored person in relation to it, Schepisi. Can this criterion for the grant of a Subclass 457 visa be regarded as a criterion that “the non-citizen [Mr Hazan] is sponsored by an approved sponsor …” within the meaning of s 338(2)(d)?
We have started answering that question by looking at the definitions of “approved sponsor” and “sponsor”. They are set out at [9] and [10] above. If the definition of “sponsor” set out r 1.20(1) applied to a Subclass 457 visa, we would have no hesitation in finding that, in relation to Mr Hazan, Schepisi is his sponsor. We would have no hesitation in finding that a criterion for the grant of a Subclass 457 visa requires him to be sponsored by an approved sponsor. The reasoning for our conclusion would begin with the criterion in cl 457.324(2)(a) requiring, in this case, Schepisi, to agree in writing that Mr Hazan may be a secondary sponsored person in relation to it. Once Schepisi has given its written agreement, it is subject to the obligations imposed on it in relation to a secondary sponsored person by Division 2.19 of Part 2A of the Regulations. They are obligations of the sort set out in r 1.20(2)(b). It would then be a sponsor of Mr Hazan within the meaning of r 1.20(1).
None of this reasoning applies, though, for r 1.20(4) provides that the regulation does not apply to a Subclass 457 visa. Such a visa is expressly excluded by r 1.20(4)(h). Therefore, the definition of “sponsor” in r 1.20(1) has no application in the circumstances of this case. As the reasoning in our previous paragraph is dependent upon that definition’s applying, the whole of our reasoning must fall away and we must look to other places to determine whether there is a criterion for the grant of a Subclass 457 visa to Mr Hazan that he is sponsored by an approved sponsor.
In view of the provisions of r 4.02(1AA), the examination is directed not simply to a criterion that Mr Hazan be “sponsored” but is extended to a criterion that he be “identified in a nomination under section 140GB”. That follows from 4.02(1AA) that we have set out at [28] above. It provides that, for the purposes of s 337, the word “… sponsored includes being identified in a nomination under section 140GB of the Act.”
Section 140GB is concerned with a nomination by an approved sponsor of an applicant, or proposed application, in relation to his or her proposed occupation, the program he or she is to undertake or the activity he or she is to carry out. No reference is made in that section to the nomination of a member of the family unit of that applicant or proposed applicant. Where mention is made of a criterion requiring nomination of a person who is the member of the family unit of that applicant or proposed applicant is found in r 2.72(6). It arises if a standard business sponsor has identified in a nomination the visa holder who will work in a nominated occupation. If another person identifies the holder of a Subclass 457 visa, the Minister must be satisfied that the standard business sponsor has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of being a member of the family unit of the holder of the visa. Regulations 2.72(6), (7) and (7A) do not apply to a person who is applying for a Subclass 457 visa on the basis of being a member of the family unit of a person who is an applicant or proposed applicant for a visa of that class and whom the standard business sponsor has nominated.
Mr Hazan applied on the basis of being a member of Ms Fadida’s family unit. When the delegate considered his application, Ms Fadida was the holder of a Subclass 457 visa as required by the secondary criterion specified in cl 457.321 applicable to him. There was no requirement that Schepisi identify him in its nomination for, in nominating Mrs Fadida under s 140GB, who was an applicant for a Subclass 457 visa, r 2.72(6) did not apply. It follows that, applying the extended definition of “sponsored” to include “being identified in a nomination under section 140GB of the Act”, there is no criterion for the grant of a Subclass 457 visa to a person in Mr Hazan’s position that he be nominated, and so sponsored, by the standard business sponsor.
Are we able to consider the meaning of the word “sponsor” more broadly than the terms in which it is defined in r 1.03? It is said to have the “… meaning given by r 1.20.” As DC Pearce and RS Geddes write in Statutory Interpretation in Australia:[40]
“… The orthodox and, it is submitted, the correct approach to the understanding of the effect of these expressions is that ‘means’ is used if the definition is intended to be exhaustive while ‘includes’ is used if the definition to enlarge the ordinary meaning of the word …”[41]
Although the orthodox approach is not always the correct approach, we think that it is in this case. The word is carefully defined in r 1.20(1) not only by excluding certain visas from its scope but by regulating the way in which a sponsor must enter into a sponsorship in others. That meaning is continued in the interpretation provisions of s 337 in Part 5 of the Migration Act relating to Part 5-reviewable decisions. The word “sponsored” has the same meaning as in the Regulations. That is repeated in r 4.01 of the Regulations but expanded by r 4.02 to include being identified in a nomination under s 140GB. There is no room to go beyond those definitions and to consider the ordinary meanings of the word “sponsor”.
[40] 8th edition, LexisNexis, Butterworths, Australia, 2014
[41] Pearce & Geddes [6.60]
That brings us to the extended meaning of “sponsored” given in r 4.02(1AA). We have concluded that the provisions regulating the way in which an application is made by a member of a family unit do not impose a requirement to be identified in a nomination under s 140GB. Clause 1223A in Part 1 of Schedule 1 to the Regulations permits a person who claims to be a member of the primary applicant’s family to make an application that is combined with that of the primary applicant. It does not require it, though, and expressly addresses the situation in which an applicant does not make a combined application of that sort.
For these reasons, we have concluded that it is not a criterion for the grant of a Subclass 457 visa to a non-citizen, being Mr Hazan, that he is sponsored by an approved sponsor. Therefore, the condition on which the application of s 338(2)(d) is predicated is not satisfied and that provision does not come into play. As Mr Hazan satisfies ss 338(2)(a), (b) and (c), the Tribunal has jurisdiction to consider his application for review of the Minister’s decision.
IS Mr HAZAN A MEMBER OF Ms FADIDA’S FAMILY UNIT?
In view of our decision that we have jurisdiction to consider Mr Hazan’s application, we may now consider the substantive merits of his application.
Legislative framework
The expression “member of the family unit” has the meaning given by r 1.12 of the Regulations.[42] Only r 1.12(1) is relevant and it provides:
[42] Migration Act; s 5(1) and Regulations; r 1.03
“For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b)a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c)a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e)a relative of the family head or of a spouse or de facto partner of the family head, who:
(i)does not have a spouse or de facto partner; and
(ii)is usually resident in the family head’s household; and
(ii)is dependent on the family head.”
The qualifications in rr 1.12(2), (2A), (6) and (7) do not apply in this case.
Section 5F defines the word “spouse”:
“(1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as a husband and wife to the exclusion of all others; and
(c)the relationship between them is genuine and continuing; and
(d)they:
(i)live together; or
(ii)do not live separately and apart on a permanent basis.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note:Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.”[43]
[43] Section 12 of the Migration Act provides that, for the purposes of deciding whether a marriage is to be recognised as valid for the purposes of the Migration Act, Part VA of the Marriage Act 1961 applies as if s 88E of that Act were omitted. Part VA applies to and in relation to every marriage solemnised, whether before or after the commencement of this Part, in a foreign country. It has no relevance in this case as Ms Fadida and Mr Hazan married in Australia.
For the purposes of s 5F(3), r 1.15A of the Regulations provides for the “arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) exist.”[44] As a Subclass 457 visa is not a visa specified in r 1.15A(2), we may consider any of the circumstances specified in r 1.15A(3).[45] The matters prescribed are:
[44] Regulations; r 1.15A(1)
[45] Regulations; r 1.15A(4)
“(a) the financial aspects of the relationship, including:
(i)any financial ownership of real estate or other major assets; and
(ii)any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii)any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iv)any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv)whether the persons see the relationship as a long-term one.”
Is Mr Hazan a member of Ms Fadida’s family unit?
Mr Hazan has applied for a Subclass 457 visa on the basis that he is a member of Ms Fadida’s family unit. He fulfils the first of the four criteria specified in the definition of “spouse” under s 5F(2) of the Migration Act because we find that he and Ms Fadida were married in Australia on 27 December 2015 in accordance with the Marriage Act 1961.
That brings us to the other three criteria prescribed in s 5F(2) having regard to the matters prescribed by r 1.15A(3). Both Ms Fadida and Mr Hazan gave oral evidence at the hearing and we have written material, to which we will refer. On the basis of that evidence, we find that Ms Fadida and Mr Hazan first met in approximately October 2009 when both worked at a hotel in Ellat in Israel. They started dating about a month after they met and started living together in Israel about six months later.
A little over a year after they first met, we find that Ms Fadida and Mr Hazan travelled to Australia together on the same flight. Each had a student visa. Mr Hazan’s visa permitted him to study English in Australia and that issued to Ms Fadida permitted her to study hospitality. After they had been in Australia for six months, Mr Hazan was granted a visa as a secondary visa holder to Ms Fadida’s Subclass 572 student visa. Subsequently, for the period from 2011 to 15 March 2014, Mr Hazan was granted subsequent visas on the same basis.
We find that Mr Hazan and Ms Fadida opened a joint bank account shortly after they arrived in Australia in 2010. They deposit their salaries in the account and pay their daily expenses, including rent, groceries and utility bills, from it. That is so even though, in the case of the electricity, the bill is sent to Ms Fadida only. We find that the electricity was connected in her name, and not Mr Hazan’s, because she had better English language skills at the time and could communicate more easily with the utility provider.
As with the electricity bill, we find that some assets are in Mr Hazan’s name and others in Ms Fadida’s. Mr Hazan, for example, has established a separate bank account in his own name for the purpose of quarantining some of their income as savings. While the account is in his name, we find that they both plan to use those savings to purchase a home together in the future. Mr Hazan owns a car, in which they travel together. It is registered in Mr Hazan’s name because Ms Fadida does not drive the car but it is insured in their joint names. Mr Hazan took out a small flexi loan to purchase the car. Both Mr Hazan and Ms Fadida use funds from that flexi- loan to help meet their daily living costs and the costs associated with their wedding last December. They jointly own furniture for their accommodation, but have no other joint assets. They have no joint loans.
We find that Mr Hazan and Ms Fadida have lived together in five separate premises since they arrived in Melbourne. They are both shown as the tenants of the property where they currently reside together. On the basis of their evidence, we find that they share responsibility for the household chores in a way that suits them. Ms Fadida primarily undertakes the cleaning and laundry, Mr Hazan takes out the bin and washes the car and they both do the grocery shopping. Most nights they eat at their respective workplaces but eat together on Monday nights and share the cooking duties.
We accept that both told their families that they were a couple while they still lived in Israel. They met each other’s families before they came to Australia in December 2010. In 2014 Ms Fadida returned to Israel to visit her family and also visited Mr Hazan’s family. Mr Hazan was unable to accompany her because the conditions of his bridging visa did not authorise his re-entry to Australia. On the basis of their evidence, we accept that they had wanted to marry in Israel. They chose to marry in Australia because they did not wish to wait until Mr Hazan’s visa application was resolved and he could travel to Israel. Both families knew that they were marrying but could not attend. Many of their friends attended including Ms Brewer, who works with Ms Fadida and Mr Schepisi, who is the Managing Director of Schepisi.
Statutory declarations have been made by both Ms Brewer and Mr Schepisi. Both have known Ms Fadida and Mr Hazan for over three years. On the basis of their evidence as well as that of Mr Hazan and Ms Fadida, we find that Mr Hazan and Ms Fadida have always presented as a couple. Ms Schepisi has held many functions in those three years and Mr Hazan has always attended them with Ms Fadida as her partner. Mr Schepisi attended their wedding with his wife and both he and Ms Brewer have no doubt that there is a genuine and committed relationship between Mr Hazan and Ms Fadida.
Except for Mondays, their work schedules do not permit Mr Hazan and Ms Fadida to spend their free days together. Apart from other time during the working week, we find that they spend Mondays together going to the movies, going out to dinner and seeing friends, as it is their only joint day off during the week. We find that Mr Hazan and Ms Fadida provide each other with ongoing emotional support as they have no family support in Australia. They care for one another when they are unwell and help each other day to day. They see their relationship as a long term relationship.
Our findings regarding the financial and social aspects of their relationship, the nature of their household, their commitment to each other and the way in which they portray themselves to others, we find that Mr Hazan and Ms Fadida are mutually committed to sharing their lives together as husband and wife to the exclusion of all others in a relationship that is genuine and continuing. We are satisfied, therefore, that they meet the requirements of s 5F(2) and are in a married relationship for the purposes of s 5F(1) of the Migration Act. That means that we are satisfied that Mr Hazan is the spouse of Ms Fadida and, for the purposes of r 1.12(1).
In light of the findings above, we are satisfied that Mr Hazan is a “member of the family unit” of Ms Fadida as that expression is defined in r.1.12(1). Therefore, Mr Hazan is a member of the family unit of a person, who having satisfied the primary criteria, is the holder a Subclass 457 visa and the criterion in cl.457.321 is met.
DECISION
For the reasons we have given, we:
remit the application for a Temporary Business Entry (Class UC) visa to the Minister for Immigration and Border Protection for reconsideration with a direction that the applicant meets the following criterion for a Subclass 457 visa:
cl 457.321 of Schedule 2 to the Migration Regulations1994.
Stephanie Forgie
Deputy President
Miriam Holmes
Senior Member
DOCTRINE OF PRECEDENT OR STARE DECISIS
In this section of our reasons, we sketch an outline of the doctrine of precedent or stare decisis for it is necessary to determine whether we are bound by decisions of the Federal Circuit Court and its predecessor, the Federal Magistrates Court, and, if so, to what extent.
The doctrine
Barwick CJ touched on the doctrine of precedent or stare decisis when canvassing some preliminary issues as to whether the High Court should consider itself bound to follow decisions of the Privy Council.[46] In essence, Barwick CJ said that the doctrine of stare decisis, or doctrine of precedent, requires that a court or tribunal is obliged to follow and apply decisions of certain other courts when required to consider and apply the same law be that statutory law[47] or the common law. The reason for that is that:
“… The doctrine of precedent plays an important part in preserving a stable legal framework and promoting respect for law.”[48]
[46] Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580; Barwick CJ, McTiernan, Stephen, Mason and Jacobs JJ
[47] D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; 214 ALR 92; Gleeson CJ,[48] Commonwealth v Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49; 40 ALR 673; Gibbs CJ, Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ at 72; 691 per Wilson J
What are those certain other courts whose decisions others are obliged to follow? Answering that question in relation to the common law, Brennan J said in Giannarelli v Wraith[49] (Giannarelli):
“… In declaring and applying the common law to a current case, a court is bound by earlier decisions of courts above it in the hierarchy, for those decisions state what the court is bound to take the common law to be. But when the court is not so bound, it may undertake its own inquiry into the common law and it may depart from earlier decisions. The doctrine of stare decisis requires no greater adherence to precedent, though curial policy may lead a court to adhere to authority which is merely persuasive.”[50]
The same principles apply to decisions relating to statutory interpretation.[51]
[49] [1988] HCA 52; (1988) 165 CLR 543; 81 ALR 417; Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ
[50] [1988] HCA 52; (1988) 165 CLR 543; 81 ALR 417 at 584; 442
[51] See [87]-[93] below
Philosophical basis of doctrine of precedent
At the heart of the doctrine of precedent is the notion that like cases will be treated alike. That does not mean, however, that the outcome of a particular case may give rise to binding precedent. What may give rise to binding principle are the principles that underpin that outcome. Consistency of outcome follows from consistency of interpretation of the relevant law and consistency in applying the law to various factual circumstances. In other words, like cases will be treated alike. Reasoning by reference to outcomes, and not by reference to the law as applied to various factual circumstances, will only achieve it by chance it if achieves it at all. This was succinctly explained in the context of sentencing by Gaudron, Gummow and Hayne JJ in Wong v The Queen:[52]
“… [T]he sentence itself gives rise to no binding precedent. What may give rise to precedent is a statement of principles which affect how the sentencing discretion should be exercised, either generally or in particular kinds of case. …”[53]
Identifying the parameters of the doctrine
[52] [2001] HCA 64; (2001) 207 CLR 584; 185 ALR 233; Gleeson CJ, Gaudron, Gummow, Kirby, Hayne and Callinan JJ
[53] [2001] HCA 64; (2001) 207 CLR 584; 185 ALR 233 at [57]; 605; 247 per Gaudron, Gummow and Hayne JJ
A. Exclusion of two groups of decisions
Barwick CJ did not identify those certain decisions and statements by which a court or tribunal is bound to follow but he did set some of the parameters for the process of identification by excluding two groups of decisions from those to which the doctrine of precedent may require adherence. In both instances, they are decisions of courts lying outside the hierarchy in which the doctrine of precedent operates.
The first group comprises those which have been delivered by courts of such standing that it may be argued that respect should be given to their judgments unless there are sufficient reasons for departing from them. They are distinguished from the second group of decisions which have been accepted and acted upon so as to become part of the body of the law which a court has to apply. Although not technically bound to follow them, courts generally do in the interest of continuity and certainty.[54]
[54] [1976] HCA 13; (1976) 133 CLR 580 at 591-592
These exclusions have been considered more recently in cases such as Farah Constructions Pty Ltd v Say-Dee Pty Ltd[55] when the High Court said:
“… Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong … . Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. …”[56]
[55] [2007] HCA 22; (2007) 230 CLR 89; 236 ALR 209; 81 ALJR 1107; Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ
[56] [2007] HCA 22; (2007) 230 CLR 89; 236 ALR 209; 81 ALJR 1107 at [135]; 151-152; 253; 1140 (citation omitted). The High Court had expressed a similar view in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485; 112 ALR 627 at [4]; 492; 629; Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ and, in the context of sentencing, see The Queen v Pham [2015] HCA 39; (2015) 325 ALR 400 at [18]; 404 per French CJ, Keane and Nettle JJ “That contention should be accepted. As Hili v The Queen … made clear, where a State court is required to sentence an offender for a federal offence, the need for sentencing consistency throughout Australia requires the court to have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other States and Territories unless convinced that they are plainly wrong.”
B.Exclusion of per incuriam decisions only in relation to courts of equal status
A per incuriam decision is made in ignorance of some aspect of the law or of an authority which, had it been referred to, would have led the court making that decision to make a different decision.[57] Such a decision may only be ignored by the same court, even if differently constituted, or a court superior in the hierarchy. The reason was explained by Moffitt P in Proctor v Jetway Aviation Pty Ltd[58] (Proctor):
" The per incuriam rule is not available to a court in relation to a decision of a court superior in the hierarchy. It is a rule which applies only to a review by a court of its own decision. An equivalent result cannot be achieved by regarding a binding decision of the superior court as distinguishable on the basis that it did not decide the question which it did by making the order that it did, but that it only decided the question apparently argued before it or on the basis that its reasons were its decision."[59]
[57] Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 116 FCR 58 at [84]; 81 per Finkelstein J; Lee and Gyles JJ not addressing this issue
[58] [1984] 1 NSWLR 166
[59] [1984] 1 NSWLR 166 at 177
This reason was adopted and expanded upon by Priestley JA in Proctor:
“… The system of precedent requires that judges apply the law as laid down by courts to which appeals lie from them, mediately or immediately, and whether or not they agree with that law.”[60]
[60] [1984] 1 NSWLR 166 at 185
In Algama v Minister for Immigration & Multicultural Affairs[61] (Algama), Whitlam and Katz JJ, with whom French J agreed, also referred to the remarks of Moffitt P in Proctor and noted that:
“… a majority of the Judicial Committee of the Privy Council (Lords Diplock, Simon of Glaisdale and Cross of Chelsea and Sir Thaddeus McCarthy), relying on Cassell, had expressed a similar view about the operation of the per incuriam rule in Baker v The Queen [1975] AC 774 at 788 (as had the sole dissentient, Lord Salmon, at 795). The majority had pointed out that to permit the use of the per incuriam rule by a court inferior to the court the precedential effect of whose decision was in issue ‘would open the door to disregardof precedent by the court of inferior jurisdiction by the simple device of holding that decisions of superior courts with which it disagreed must have been given per incuriam’.”[62]
[61] [2001] FCA 1884; (2001) 115 FCR 253; 194 ALR 37
[62] [2001] FCA 1884; (2001) 115 FCR 253; 194 ALR 37 at [40]; 261; 45
C. Identifying the hierarchy
The hierarchy of courts in Australia begins with the High Court at its pinnacle, followed by the superior courts of record, be they Commonwealth, State or Territory. They are followed by the first tier of inferior courts be they called the County Court, as in the case of Victoria, or District Courts in the remaining States. The Federal Circuit Court occupies that position in the Commonwealth. The Magistrates’ Courts follow in the States and Territories.
When the doctrine of precedent or stare decisis comes into play, questions arise from time to time as to the status of judgments of single Judges as opposed to those of Full Courts or Courts of Appeal. We do not propose to explore the answers to every question which may arise for, in this case, we are ultimately concerned only with the place of the Federal Circuit Court in the hierarchy in relation to this Tribunal and then only in relation to a very specific group of decisions being AAT migration decisions.
We will begin with a general proposition from the judgment of Stephen J in Viro v The Queen:[63]
“ The first duty of a court is to administer justice according to law. However in the case of an inferior court operating within a system where the doctrine of precedent applies, the existence of authority binding upon it determines for it what it must understand to be the law. It must accept the law to be as that precedent authority has declared it to be, whatever may be its own inclinations in the matter. The sanction implicit in the doctrine of precedent is simple and effective: if an inferior court fails to observe the doctrine the superior court will correct its decision on appeal. Thus the existence of an appeal is inherent in and essential to the doctrine.
The position of a final court of appeal, its decisions subject to no appeal to a court superior to it, is otherwise. It too must administer justice according to law; as Isaacs J. said in Australian Agricultural Co. v. Federated Engine-Drivers’ and Firemen’s Association of Australasia … [(1913) 17 CLR 261, at p 278] ‘our sworn loyalty is to the law itself’. But it may neither surrender, nor be relieved of, its responsibility to find what is the law by any involuntary adoption of the decisions of any other court. It may impose upon itself a rule that it will accept as absolute the binding force of its own past decisions, a course which, for the several reasons referred to by Dixon J. in Attorney-General (N.S.W.) v. Perpetual Trustee Co. Ltd. … [[1952] HCA 2; (1952) 85 CLR 237, at p 244] the High Court has not done. Subject only to that possibility, it must otherwise wholly accept the responsibility of itself declaring what it regards to be the law, even if the views of other tribunals, however respected, are to a contrary effect. Their views will, of course, be of great force in the formation of its own conclusion but at the end of the day what must prevail must be its own conclusion.”[64]
[63] [1978] HCA 9; (1978) 141 CLR 88; 18 ALR 257; Barwick CJ, Stephen, Mason, Jacobs, Murphy and Aickin JJ
[64] [1978] HCA 9; (1978) 141 CLR 88; 18 ALR 257 at 129-130; 289-290
The issue was considered by Grove J in Valentine v Eid[65] In the context of whether judgments of the District Court are binding on the Magistrates Court in New South Wales. His Honour referred to the passage from the judgment of Stephen J that we have set out in the previous paragraph before addressing the practical problems of applying the doctrine of precedent in the absence of systematic law reporting. In relation to that, Grove J said:
“ The instant facts hint at potential for disorder. Judgments of the District Court are not routinely, and in practice rarely, reported in the law reports. The learned magistrate had available one decision but not another which actually conflicted with it. A Local Court learning of a decision in the District Court would seem to depend largely on chance. In Binskin [Binskin v Kangaroo v Kangaroo Transport Pty Ltd (1990) 12 MVR 499], a point was taken about production of an uncertified print of judgment. It is notorious that the formidable case load in the District Court necessarily demands frequent ex tempore judgment which does not suggest itself as a source for systematic derivation of precedent.”[66]
[65] (1992) 27 NSWLR 615
[66] (1992) 27 NSWLR 615 at 621
Grove J referred also to a passage from the text book entitled “Our Legal System” by DJ and KH Gifford in which the authors looked to the courts whose judgments could contribute to the common law and those that could not. The authors concluded that, even though a County or District Court is presided over by a Judge, only judgments of a superior court could contribute to the common law.[67] Referring to the lack of reporting of District Court judgments and to the views of Messrs Gifford, his Honour concluded that:
“… [T]he doctrine of stare decisis does not apply as between two inferior courts, the District Court and the Local Court, even though the former stands higher in the curial gradation.”[68]
[67] (1992) 27 NSWLR 615 at 622
[68] (1992) 27 NSWLR 615 at 622
The reference in Stephen J’s judgment in Viro v The Queen to the existence of an appeal being inherent in, and essential to, the doctrine of precedent general was also made in the judgment of Barwick CJ when he said:
“ The essential basis for the observance of a decision of a tribunal by way of binding precedent is that that tribunal can correct the decisions of the court which is said so to be bound. …”[69]
[69] [1978] HCA 9; (1978) 141 CLR 88; 18 ALR 257 at 93; 260
That proposition was explored further by Rein SC DCJ of the New South Wales District Court in Keramaniakis v Wagstaff.[70] He did not do so in the context of a Magistrates or Local Court and a County or District Court but in the context of the District Court in New South Wales and a judgment of a single Judge of the Supreme Court of that State. Rein SC DCJ concluded:
“… the statements of principle in Proctor and the judgments of Barwick CJ and Stephen J in Viro and Brennan J (as he then was) in Trident v McNiece [(1988) 165 CLR 107] provide sufficient authority for the view that a judge of this Court is not bound by a decision of a single judge of the Supreme Court, because even though the District Court is not a court of record and is an inferior court in the curial hierarchy to the Supreme Court, there is no appeal from a decision of this Court to a single judge of the Supreme Court. I accept, of course, that any decision of a single judge of the Supreme Court is entitled to considerable respect and ought be followed unless after due consideration of it, this Court is convinced that it is wrong, for example because some relevant matter or case was not brought to the Supreme Court judge’s attention. I would regard that principle, which might be described as a broad principle of comity, as extending to judgments of all Australian Superior Courts.”[71]
[70] [2005] NSWDC 14
[71] [2005] NSWDC 14 at [58]
The final case to which we will refer before considering the position of the Tribunal vis a vis the Federal Circuit Court is that of SZGME v Minister for Immigration and Citizenship[72] (SZGME). It determined two appeals from the then Federal Magistrates’ Court. The issue before the Full Court was the effect of s 48A of the Migration Act. That section prevented certain persons from applying for a protection visa while they were in the migration zone. One of the Federal Magistrates had not followed a conclusion on the same point reached by a single Judge of the Federal Court. While Black CJ and Allsop J agreed with the conclusion, they observed:
“… that the principles of precedent required that the Federal Magistrate follow the decision in SZECD, being a decision of this Court in the appellate jurisdiction from the Federal Magistrates Court. We do not think that it was open to her Honour to regard what was said in SZECD as obiter. In this regard the observations of Lord Simon of Glaisdale in Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 478 are apposite, though his Lordship was in dissent. His Lordship said:
It is the duty of the subordinate court to give credence and effect to the [more recent] decision of the immediately higher court, notwithstanding that it may appear to conflict with the [earlier] decision of a still higher court. The decision of the still higher must be assumed to have been correctly distinguished (or otherwise interpreted) in the decision of the immediately higher court.
See also the valuable guidance in this respect in the judgment of Moffitt P in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, in particular at 177-180.”[73]
We note that the judgment of the single Judge in that case was delivered in the exercise of the Federal Court’s appellate jurisdiction from a judgment of the Federal Circuit Court.[74]
[72] [2008] FCAFC 91; (2008) 168 FCR 487; 247 ALR 467; 102 ALD 31; Black CJ and Allsop JJ; Moore J dissenting
[73] [2008] FCAFC 91; (2008) 168 FCR 487; 247 ALR 467; 102 ALD 31 at [42]; 500-501; 479-480; 43-44
[74] Federal Court of Australia Act 1976; s 25(1AA)(a)
This passage from SZGME would seem to be based firmly on the proposition that the availability of an appeal is the important issue. That would accord with the views expressed in Keramaniakis v Wagstaff and Viro v The Queen. It does not address the issues raised in Valentine v Eid regarding publication and whether the court can contributed to the development of the common law.
Identifying the ratio decidendi of a case
The ratio decidendi of the case is “The ground or reason of decision. The point in a case which determines the judgment.”[75] There may be other reasoning but, unless it is sufficient to dispose of the issues in the case, it is not part of the ratio decidendi.
“ Of course, in considering whether a decision of the High Court is binding in a particular case, it is necessary to determine whether a decision is in point, a question on which there has been much debate: cf J Stone, Precedent and Law (1985), Ch 7. Cross and Harris describe the ratio decidendi of a case (that is, the principle for which the case is a binding precedent) as ‘any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him’ (emphasis added):
Cross and Harris, Precedent in English Law (4th ed 1991), at 72. The learned authors qualify this description by observing that ‘strictly speaking...the above formulation should speak of a “ruling on a point of law” rather than a rule of law’.”[76]
[75] Black’s Law Dictionary with pronunciations, 5th edition, West Publishing Company, St Paul, 1989
[76] Foster v Northern Territory of Australia [1999] FCA 1235; French, Tamberlin and Sackville JJ at [30]
The High Court has considered the way in which the ratio decidendi of a case is to be ascertained. In Comcare v PVYW[77] (PVYW), the issue was whether an employee’s injury had been sustained in circumstances in which it could be said to be an injury “arising out of, or in the course of, the employee’s employment” for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The injury had been sustained at the motel where the employee was staying during a work-related trip to a regional branch of a Commonwealth agency. A similar issue had arisen in the earlier case of Hatzimanolis v ANI Corporation Limited[78] (Hatzimanolis). Could an injury, which had been sustained during in an interval or interlude occurring within an overall period of work, be said to have arisen “out of or in the course of employment” for the purposes of the Workers Compensation Act 1987 (NSW)?
[77] [2013] HCA 41; 250 CLR 246; 303 ALR 1; 136 ALD 1; French CJ, Hayne, Crennan and Kiefel JJ; Bell and Gageler JJ dissenting
[78] [1992] HCA 21; (1992) 173 CLR 473; 106 ALR 611; Mason CJ, Deane, Dawson, Toohey and McHugh JJ
In relation to AAT Act migration decisions other than those we have described as excluded migration decisions, the Federal Circuit Court sits in a position above that of the Tribunal in the hierarchy. It may be an inferior court but it is clear that Parliament has intended that it has the power to set aside the Tribunal’s decisions when they are made in its Migration and Refugee Division (MRD) regardless of whether the decision is made by the President or a member whether a Deputy President, Senior Member or Member. Unless set aside on appeal by the Federal Court, the Federal Circuit Court’s judgments are final. It seems to us that it follows that, in relation to AAT migration decisions, the Tribunal must have regard to judgments of the Federal Circuit Court when applying the doctrine of precedent or stare decisis.
Whether its decisions bind the Tribunal in regard to decisions made other than in its Migration and Refugee Division is a different question. On our analysis, unless the decision is made by a presidential member, members of the Tribunal’s Social Security and Child Support Division (SSCSD) are bound to follow judgments of the Federal Circuit Court in accordance with the doctrine of precedent. As appeals from decisions made in all of the Tribunal’s Divisions other than the MRD and SSCSD are made to the Federal Court in the first instance, it would seem that Parliament has intended to differentiate them from those made by those two Divisions. Even though the Federal Court may choose to refer an appeal to the Federal Circuit Court if that decision has not been made by a presidential member or is of a kind specified in regulation. That would suggest that Parliament has intended that it is the Federal Court, and not the Federal Circuit Court, to which the Tribunal must have regard in applying the doctrine of precedent in all of its Divisions other than the MRD and, unless its jurisdiction is being exercised by a presidential member, the SSCSD.
SUMMARY OF PREVIOUS AUTHORITIES
Before considering the cases in this section of our reasons, we note that the amalgamation of the Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT) with the Administrative Appeals Tribunal with other bodies on 1 July 2015 led to a small consequential change in the review provisions of Part 5 of the Migration Act. Before 1 July 2015, provision was made for review of certain decisions by the MRT if they came within the definition of an “MRT-reviewable decision” as set out in ss 5 and 338(1). From 1 July 2015, when the MRT and RRT became the Migration and Refugee Division of the Tribunal, provision has been made for review of the same decisions but they are now described as “Part 5-reviewable decisions”.[105] There was no substantive change. The cases we consider in this Attachment were decided when the Migration Act referred to MRT-reviewable decisions but we note that, apart from the descriptor and the body upon whom jurisdiction is conferred, there is no difference between an “MRT-reviewable decision” and a “Part 5-reviewable decision”.
[105] Tribunals Amalgamation Act 2015; s 3 and Schedule 2; cl 4 deleting the definition of “MRT-reviewable decision” and adding the definition of “Part 5-reviewable decision” in s 5 of the Migration Act and cl 133 making consequential amendments
Kim and Others v Minister for Immigration and Citizenship and Migration Review Tribunal
The earliest is the case of Kim and Others v Minister for Immigration and Citizenship and Migration Review Tribunal[106] (Kim) decided by the FCC’s predecessor, the Federal Magistrates Court. The then Migration Review Tribunal (MRT) had decided that it did not have jurisdiction to entertain an application for review that had been lodged on 12 December 2005 by Ms Kim, her husband and two daughters. Ms Kim was the primary visa applicant for a Subclass 457 visa and her husband and daughters were secondary visa applicants for visas of the same subclass.
[106] [2007] FMCA 166
In her visa application, Ms Kim had identified her sponsoring employer as BDS Recruit Pty Ltd (BDS) but, on 4 October 2005, BDS had written to the Department of Immigration and Citizenship asking it to cancel Ms Kim’s application for a Subclass 457 visa due to earlier breaches of obligations and unreliable addresses given by sponsored employees from the source. On 10 October 2005, BDS confirmed that it no longer wished to sponsor Ms Kim. Following that notification, a delegate of the Minister refused Ms Kim’s visa application on the basis that she has not been nominated by an employer who is an approved business sponsor. Therefore, she did not meet the primary criterion specified in cl 457.223(4). As she was not able to satisfy the primary criteria, the delegate decided that her husband and daughters did not meet the secondary criteria specified in cll 456.311[107] and 457.321. Therefore, the delegate refused to grant Subclass 457 visas to them.
[107] Subclass 456 (Business (Short Stay))
A.Legislative framework
Clause 457.2 of the Regulations set out the primary criteria that, as the primary visa applicant, Ms Kim was required to meet. The only relevant one was that in cl 457.223(4) that had to be met at the time of decision. The relevant parts of that clause read:
“The applicant meets the requirements of this subclause if:
(a)the activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer; and
(b)the employer is:
(i)either:
(A)…
(B)a standard business sponsor approved under regulation 1.20D as in force before, on or after 1 July 2003; and
(ii)the employer mentioned in subparagraph 1223A(3)(d)(i); and
(c)the applicant is nominated, in accordance with approved form 1068, 1196 or 1196 (Internet), in relation to the activity by the employer; and
(d)the applicant has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed; and
(e)the applicant demonstrates, if so required by the Minister, that he or she has the skills necessary to perform the activity; and
(f)-(g)…
(h)for a standard business sponsor – the Minister is satisfied that the position is to be filled by the applicant has not been created only for the purposes of securing the entry of the applicant to Australia; and
(i)the applicant is sponsored by an approved sponsor within the meaning of section 140D of the Act.”
Clause 1223A(3)(d)(i) of Schedule 1 to the Regulations, to which reference is made in cl 457.223(4), provided that:
“If an applicant seeks to satisfy the primary criteria for the grant of a Subclass 457 (Business (Long Stay)) visa on the basis that the applicant satisfies the requirements of subclause 457.223 (4) of Schedule 2, the application must:
(i) specify the employer by whom the applicant proposes to be employed for subclause 457.223 (4); …”
At the time, s 338(2)(d) of the Migration Act was enacted in the same terms as it is today but a different statutory regime was in place in relation to sponsors. The sponsorship system was set out in Division 3A of Part 2A as it is now but nomination of a person for a visa was part of the process of becoming an “approved sponsor”. At that time, s 140D provided that:
“A person is an approved sponsor of another person for a visa at a particular time if:
(a)the first person has consented in writing to sponsor the second person for the visa and that consent has not been withdrawn by notice in writing to the Minister; and
(b)the first person has been approved by the Minister before that time as a sponsor of the second person for the visa, whether the second person is named in the approval or otherwise described; and
(c)the approval has not been cancelled by the Minister before that time; and
(d)a bar of a kind mentioned in paragraph 140L(c) or (d) that would affect the sponsorship of the second person is not in force at that time; and
(e)the terms on which the sponsorship was approved are satisfied at that time.”
The Minister was required to approve a person as a sponsor if prescribed criteria were satisfied. Different criteria might be prescribed for different kinds of visa.[108] Provision was made in s 140F for the Regulations to establish the process whereby the Minister approved a person as sponsor. Regulation 1.20C(1) provided that for the purposes of s 140F(1), a person may apply to the Minister for approval as a standard business sponsor in accordance with that regulation. Regulation 1.20C(2) provided that, where application was sought for approval as a standard business sponsor, an application had to be made in accordance with approved Form 1196, if the applicant operated a business outside Australia. Otherwise, it had to be made in accordance with approved Form 1196 or 1196 (Internet).
[108] Migration Act; s 140E
The Minister approved a person as a sponsor on terms of a kind prescribed in the Regulations and specified in the approval.[109] A sponsor might be required to make undertakings of the sort set out in ss 140H and 140I and there were consequences if those undertakings were breached.[110]
[109] Migration Act; s 140G
[110] Migration Act; ss 140J and 140K and see also Migration Act; ss 140L to 140U
As secondary visa applicants, Ms Kim’s husband and daughters were not required to satisfy any primary criteria.[111] The first of the secondary criteria that they were required to satisfy was:
“The applicant is a member of the family unit of a person (in this Subdivision called the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.”[112]
[111] Note to Regulations; Schedule 2, cl 457.2
[112] Regulations; Schedule 2, cl 457.321
Another criterion of relevance is that in cl 457.324:
“The applicant is included in any nomination that is required in respect of the primary applicant in accordance with approved form 1068, 1196 or 1196 (Internet).”
B. Federal Magistrates Court’s reasoning
Section 338(2)(d) of the Migration Act was enacted in the same terms as it is today. Smith FM, as he then was, found that Ms Kim was not entitled to apply for review as she did not meet the requirements of s 338(2)(d). She did not do so because she was not, at the time she lodged her application for review, sponsored by an approved sponsor.
Smith FM then turned to the position of the secondary visa applicants. He found that the relevant question to ask himself was whether one of the criteria for the visa sought by them was a criterion requiring that “the non-citizen is sponsored by an approved sponsor”. In answering that question, his reasoning was:
“On one view, the words in s. 338(2)(d): ‘where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor’ in relation to a delegate’s decision encompassing both primary and secondary visa applicants requires separate examination of the criteria directly applicable to each of them. On this interpretation, a primary visa applicant faces the jurisdictional test in that paragraph, but the secondary applicants may not. This reading would take the reference to ‘the non-citizen’ to be a reference to each applicant for review.
However, this interpretation would clearly produce an anomalous effect in relation to joint applications for review where the sponsorship criterion is a primary criterion but not a secondary criterion. In a situation where the primary applicant had lost his or her sponsor and could not appeal, the family members would have a right of appeal, but no prospects of success whatsoever. I cannot think that the regulations could have intended to confer such a futile right of appeal.
For this reason, I accept the submissions of counsel for the Minister that s.338(2)(d) should be construed so as to apply as if it said: ‘it is a criterion for the grant of the visa to the primary visa applicant that the non-citizen is sponsored’. Although this requires the reference to ‘the non-citizen’ to be read as a reference to a person who is not necessarily the applicant for review or each of them, I consider that this is required to give the intended meaning to the provision. The consequence is that s.338(2)(d) will apply to the application for review in relation both to a primary visa applicant and also to each secondary applicant, whose qualification for the visa depends upon a primary applicant meeting a sponsorship criterion.”[113]
[113] [2007] FMCA 166 at [24]-[26]
Smith FM went on to draw support for his view from the Explanatory Memorandum to the Migration Legislation Amendment (Sponsorship Measures) Bill 2003, which introduced s 338(2)(d). Relying on s 15AB(1)(b) of the Acts Interpretation Act 1901, he said that it confirmed interpretation he had taken of s 338(2)(d). The extract read that the purpose of the introducing s 338(2)(d) was:
“… to prevent abuse of the merits review process by refused visa applicants, who have no sponsor, and therefore no ability to meet the criteria for grant of the visa, seeking to extend their stay in Australia by lodging a review application.”
C.Analysis of reasoning
The extract from the Explanatory Memorandum on which Smith FM relied is part of a lengthier passage explaining the reasons for introducing s 338(2)(d) in the Migration Act. That lengthier passage puts the amendment in context but we will set out only those parts that are relevant. We have bolded the passage quoted by Smith FM:
“10. New paragraph 338(2)(d) limits the circumstances in which a decision to refuse to grant certain visas may be reviewed by the MRT under subsection 338(2). It provides that if it is a criterion for the grant of a visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa prescribed for the purposes of this paragraph, a decision to refuse to grant the visa is only reviewable by the MRT if:
·the non-citizen is sponsored by an approved sponsor at the time the application to review the decision is made (subparagraph 338(2)(d)(i)); or
·an application for review of a decision not to approve the sponsor has been made, but not finalised, at the time the application to review the decision to refuse to grant the visa is made (subparagraph 338(2)(d)(ii)).
1. The Regulations will prescribe those temporary visas, however described, that will be affected by new paragraph 338(2)(d). This means that only applicants who are seeking review of a decision to refuse to grant a temporary visa, that is prescribed in the regulations for the purpose of new paragraph 338(2)(d). …
2. …
1. …
2. The purpose of new paragraph 338(2)(d) is to ensure that only those visa applicants who have an approved sponsor, or are seeking review of a decision to refuse to approve sponsorship, may apply to the MRT for review of a decision to refuse to grant a prescribed visa. This is to prevent abuse of the merits review process by refused visa applicants, who have no sponsor, and therefore no ability to meet the criteria for grant of the visa, seeking to extend their stay in Australia by lodging a review application.”
We respectfully suggest that the lengthier passage clarifies what it is that must be established before s 338(2)(d) comes into play. What must be established is that a non‑citizen has applied for the grant of a visa that has been prescribed for the purposes of that paragraph and that it a criterion for the grant of a visa that the non-citizen is sponsored by an approved sponsor.
When the facts of that case are approached from that point of view, regard must be had to cl 457.324 as it was then drafted. It specified that the applicant be included in any nomination that is required in respect of the primary applicant in accordance with approved form 1068, 1196 or 1196 (Internet). At the time, the process of gaining approval as a sponsor and the nomination of the person to be sponsored was a single process under s 140D culminating in approval of the sponsor under s 140E. No distinction was made in the sponsorship provisions in Division 3A between a primary visa applicant and a secondary visa applicant. None was made in the procedure set out in the Regulations.
Once a person completed and lodged Form 1196, he or she became the sponsor of both primary and secondary visa applicants. Therefore, while cl 457.324 required only that a secondary visa applicant be included in any nomination required in respect of the primary visa applicant, the operation of r 1.20(2), when read with the provisions of Division 3A of Part 2 of the Act, meant that it was a criterion for the grant of the visa for a secondary visa applicant that the non-citizen be sponsored by an approved sponsor. Once BDS had withdrawn its sponsorship, none of Mrs Kim, her husband and daughters, was sponsored by an approved sponsor. Furthermore, BDS had not applied for review of any decision to refuse to approve it as a sponsor for no such decision had been made. This approach leads to the conclusion that none of Mrs Kim or her husband and daughters could meet the requirements of s 338(2)(d) and so the decisions refusing their visas were not reviewable by the MRT.
It is same outcome as that reached by Smith FM but by a different route that does not require words to be read into s 338(2)(d). At the same time, it is an outcome consistent with the approach inherent in the Migration Act and Regulations and with the Explanatory Memorandum.
Sharma v Minister for Immigration & Anor
In Sharma v Minister for Immigration & Anor[114] (Sharma), Mr and Mrs Sharma had applied for Subclass 457 visas. On 4 November 2004, a delegate of the Minister refused Mr Sharma’s application for a Subclass 457 visa as a primary visa applicant on the basis that his sponsor had not been approved as a business sponsor. On 18 February 2014, another delegate refused Mrs Sharma’s application as a secondary visa applicant for a Subclass 457 visa. That decision was made on the basis that her husband had not met the primary criteria and so she did not satisfy the secondary criterion that she be a member of the family unit of a person who is the holder of a Subclass 457 visa.
[114] [2016] FCCA 1073
On 10 March 2014, Mrs Sharma applied to the MRT for review of the delegate’s decision. The MRT relied on the decision of Kim to conclude that s 338(2)(d) should be construed as applying to both primary and secondary visa applicants. As Mrs Sharma was not sponsored by an approved sponsor at the time she applied to the MRT and as there had been no application for review of the decision not to approve the sponsor, she did not meet the requirements of s 338(2)(d). Therefore, the MRT concluded, it had not jurisdiction to hear the application.
A. Legislative framework
At the time Mrs Sharma lodged her application for review in the MRT on 10 March 2014, cl 457.321 was in substantively the same terms as it had been when Mrs Kim and her family had applied nine years earlier. The differences to that clause are only those of semantics[115] but there were more major changes. Clause 457.324 had been repealed and substituted by the Migration Amendment Regulations 2009 (No. 9)[116] (2009 Amendment Regulations) which came into operation on 14 September 2009.[117] The new clause complemented the changes to the scheme regulating the approval of sponsors that also came into effect on 14 September 2009. Clause 457.324 took its current form after further minor amendments in 2012[118] and we have set it out at [14] above.
[115] It now reads: “The applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.”
[116] FLR 2009/202; r 3 and Schedule 1, Item [31]
[117] 2009 Amendment Regulations; r 2
[118] Migration Legislation Amendment Regulation 2012 (No. 4) FLR 2012/238; r 3, Schedule 1, Items [232] and [234]. The amendments omitted the reference to Forms 1196 and 1196 (Internet) in cl 457.234.
The changes to the scheme regulating sponsor had been introduced by the Migration Legislation Amendment (Worker Protection) Act 2008 (2008 Amendment Act). It repealed ss 140B to 140D and amended ss 140E to 140M of the Migration Act and replaced them with provisions in the form we have summarised at [4]-[25] above.[119] Of particular note is that, with the repeal of s 140D, the requirement that a person seeking approval as a sponsor consent in writing to sponsor another person, was removed. At the same time, cl 57.324 allowed for the situation in which an applicant has been included in a nomination but also made provision for situations in which a person applying as a secondary sponsored person had not been included in any nomination. All that was required was that, in the case of a standard business sponsor, that sponsor has agreed in writing that the applicant may be a secondary sponsored person.
[119] 2008 Amendment Act; s 3 and Schedule 1, Items 13-29
Also coming into operation with effect from 14 September 2009 was the addition of r 4.02(1AA) to the Regulations. It now provided that:
“For section 337 of the Act, sponsored includes being identified in a nomination under section 140GB of the Act.”[120]
[120] Migration Amendment Regulations 2009 (No. 5); r 3(1), Schedule 1, Item [10A] and r 3 for commencement
B. Federal Circuit Court’s reasoning
Judge Manousaridis of the Federal Circuit Court set out the MRT’s reasoning when it relied on the decision of Smith FM in Kim. He then concluded:
“With respect, I agree with Smith FM’s construction of s 338(2)(d)) of the Act. I also agree that his Honour’s reasoning equally applies where only a secondary applicant applies for review. That only the secondary applicant applies, rather than both the primary and secondary applicants, to the Tribunal is not a circumstance that could lead to a construction of s 338(2)(d) of the Act different from Smith FM’s construction of that paragraph.”[121]
C.Analysis of reasoning
[121] [2016] FCCA 1073 at [15]
We respectfully suggest that Judge Manousaridis overlooked the amendments that had been made to the statutory regime since Kim had been decided and that applied as at the date that Mrs Sharma made her application to the MRT. We have referred to them in setting out the legislative context but will look at them further in this section of our reasons.
Among other changes brought about by the 2008 Amendment Act, the new regime brought forward the point at which a sponsor became an approved sponsor. They did that by separating the process of becoming an approved sponsor and the process of nominating a person to be sponsored. Clause 13 of the Explanatory Memorandum explains that:
“The purpose of moving forward the point at which a person becomes an ‘approved sponsor’ is to ensure that a person can be required to satisfy a sponsorship obligation from the time they meet the sponsorship approval criteria under section 140E (i.e. before a visa is granted). An example of the type of obligation that would be desirable to impose before a visa is granted could be the obligation to notify the Department of Immigration and Citizenship (the department) of any change in circumstances that may affect the sponsor’s capacity to comply with obligations; or any change to the information that contributed to the business or organisation being approved as a sponsor, or the approval of a nomination.”
The new regime broadened the regulation power to prescribe a process and criteria in relation to the nomination of a visa applicant. Those issues were no longer regulated by ss 140E and 140F as they had been when nomination was part of the process of becoming an “approved sponsor”. Nomination became part of the process under s 140GB. It provided that an approved sponsor may, in relation to a visa of a prescribed kind, nominate a person who is a visa applicant (or a proposed visa applicant), in relation to a proposed occupation, program or activity to be undertaken by the person or in relation to an occupation, program or activity. In so far as nomination related to a person, it did not make provision for the nomination of a person other than in relation to a proposed occupation, program or activity. That is to say, it did not provide for the nomination of a person who was a secondary visa applicant and a member of the primary visa applicant’s family unit.
The upshot of that was that a person in Mrs Sharma’s position could not meet the criterion in cl 547.324(1) but that did not mean that she could not meet cl 547.324 at all. Clause 547.324(1) and (2) are expressed in the alternative. If she did not have a nomination required in respect of the primary visa applicant, Mrs Sharma could still satisfy cl 547.324 if she were, for example, to have the written agreement of the standard business sponsor having the most recent approved nomination under s 140GB of an occupation in relation to her husband, being the primary visa applicant. It would seem from the facts outlined in the judgment that Mrs Sharma did not have that written agreement and so could not satisfy the criterion in cl 457.324.
Whether she could satisfy it or not is not to the point, though, for the criteria determining the MRT’s jurisdiction to entertain an application for review were set out in s 338 of the Migration Act. They were not determined by reference to whether an applicant seeking review could satisfy the criteria prescribed for the particular visa that person sought. The particular criterion that was in issue in Sharma was s 338(2)(d). It only applied if there was a criterion for the grant of the visa that the non-citizen be sponsored by an approved sponsor and that the visa concerned was a temporary visa prescribed for the purposes of s 338(2)(d). Judge Manousaridis has not considered whether Mrs Sharma was required to meet such a criterion. In particular, he has not considered whether the requirement that she have her husband’s sponsor’s written agreement that she may be a secondary sponsored person amounts to a “nomination” and so to “sponsorship”.
Ahmad v Minister for Immigration and Border Protection
In the case of Ahmad v Minister for Immigration and Border Protection,[122] the Full Court of the Federal Court considered the provisions of s 338(2)(d), the sponsorship provisions and the criteria for a Subclass 457 visa in the terms in which, apart from the references to “MRT-reviewable decisions”, they are currently drafted.
[122] [2015] FCAFC 182; (2015) 237 FCR 365; Katzmann, Robertson and Griffiths JJ
Mr Ahmad was an applicant for a Subclass 457 visa but a delegate of the Minister had refused to approve an approved standard business sponsor’s nomination of him in relation to a position. The delegate’s reason for refusal was based on a finding that the position that had been nominated was not a genuine position. That meant that Mr Ahmad could not satisfy the criterion then applying in cl 457.223(4)(a)(ii) requiring that a nomination of an occupation made by a person who was a standard business sponsor at the time the nomination was approved under s 140GB. His application for a visa was refused by a delegate of the Minister. On 22 May 2014, Mr Ahmad applied for review of the delegate’s decision.
A. Legislative framework
The relevant provisions of the Migration Act and of the Regulations were those currently in force.
B.The Full Court’s reasoning
We have set out passages from the judgment in the context of our analysis of the judgment of Flick J in Lee v Minister for Immigration and Border Protection[123] for his Honour relied upon them. We will summarise the principles from Ahmad in this section of our reasons. The Full Court decided that s 338(2)(d) applied in Mr Ahmad’s circumstances. One of the criteria for the grant of a Subclass 457 visa is that an approved sponsor had nominated Mr Ahmad in relation to a proposed occupation. Having made that decision, the Court had to decide whether Mr Ahmad satisfied either ss 338(2)(d)(i) or (ii). If he did not, the decision would not be a MRT-reviewable decision and the Tribunal would not have jurisdiction to review the decision to refuse his application for a Subclass 457 visa.
[123] [2016] FCA 294; Flick J
In relation to s 338(2)(d)(i), the Court said:
“ The definition of the word ‘sponsored’ in s 337, which applies to s 338 … , picks upon the meaning of the word ‘sponsored’ in the regulations. Regulation 4.02(1AA) states that for s 337, sponsored includes being identified in a nomination under s 140GB. It follows that ‘sponsored by an approved sponsor’ in s 338(2)(d)(i) includes not only ‘approved sponsor’ as defined in s 5(1) of the Migration Act (relevantly, a person who has been approved by the Minister under s 140E) but also includes, by virtue of reg 4.02(1AA), being identified in a nomination under s 140GB.”[124]
[124] [2015] FCAFC 182; (2015) 237 FCR 365 at [98]; 384
Later in its reasons, the Court said that, at the time he was refused a Subclass 457 visa, Mr Ahmad was “sponsored by an approved sponsor”. That followed from the fact that his approved sponsor had nominated him in its nomination application under s 140GB. Even though that nomination application had been refused, his sponsor had applied for review of that decision. The review was pending.[125] When s 338(2)(d)(ii) refers to a “decision not to approve the sponsor”, it is referring both to an approval of a sponsor under s 140E and the approval of a nomination under s 140GB. At the time that Mr Ahmad applied for review of the decision refusing him a Subclass 457 visa, his sponsor had applied for review of a decision not to approve its nomination. Review of that decision was pending. Therefore, s 338(2)(d)(ii) was satisfied. There was an MRT-reviewable decision and the Tribunal had jurisdiction.
[125] [2015] FCAFC 182; (2015) 237 FCR 365 at [106]; 385
Lee v Minister for Immigration and Border Protection
In Lee v Minister for Immigration and Border Protection[126] (Lee), Flick J considered an appeal from the Federal Circuit Court, which had dismissed an appeal from the MRT. Both the MRT and the Federal Circuit Court had decided that the MRT did not have jurisdiction to consider an application lodged by Mr Lee in April 2014 because he did not meet the requirements of s 338(2)(d). Mr Lee was a primary visa applicant who did not have a sponsoring employer. He had first nominated Mill & Penn Management Pty Ltd as his sponsoring employer only to find that it did not have an approved nomination for him. Mr Lee then changed his nominating employer to GNT Dream Pty Ltd (GNT). GNT had lodged an application for a standard business sponsorship with the Department nominating Mr Lee but its application had been refused by a delegate of the Minister on 27 March 2014. It did not lodge an application in respect of that refusal.
[126] [2016] FCA 294; Flick J
A. Legislative framework
The legislative provisions applying when Mr Lee lodged his application for review with the MRT in April 2014 are those that currently apply and that applied when Sharma was decided.
B. Federal Court’s reasoning
Flick J adopted the approach taken by the Full Federal Court at [95]-[106] in its judgment in Ahmad v Minister for Immigration and Border Protection[127] (Ahmad). It identified that approach in the following paragraphs it quoted from the judgment in Ahmad:
[127] [2015] FCAFC 182; (2015) 237 FCR 365; Katzmann, Robertson and Griffiths JJ
“95. In our opinion, the starting point must be whether, within the meaning of s 338(2)(d), it is a criterion for the grant of the visa that the non-citizen, Mr Ahmad, ‘is sponsored by an approved sponsor’.
96.It was common ground between the parties that being ‘sponsored by an approved sponsor’ is such a criterion. Clause 457.223(1) of Sch 2 to the Migration Regulations confirms that this is so, as a criterion to be satisfied at the time of decision …
97.The next question is the meaning of the words ‘sponsored by an approved sponsor’ in s 338(2)(d)(i).
98.The definition of the word ‘sponsored’ in s 337, which applies to s 338 … picks up the meaning of the word ‘sponsored’ in the regulations ….
99.Turning to s 338(2)(d)(ii), the expression ‘decision not to approve the sponsor’ includes both the approval of the sponsor under s 140E and the approval of the nomination under s 140GB.
100.On the facts of the present case, an application for review of the decision not to approve the sponsor had been made and was pending at the time the application to review the decision to refuse to grant the visa to Mr Ahmad was made.
101.It follows that the Tribunal has jurisdiction.
…
106.At the time Mr Ahmad was refused a subclass 457 visa, he was ‘sponsored by an approved sponsor’ in that his approved sponsor had nominated him in its nomination application; although that nomination application had been refused, his sponsor had applied to review that decision, and the review was pending.”
His Honour concluded:
“On the facts presented, Mr Lee did not fall within either s 338(2)(d)(i) or (ii)
because:
∙at the time he made his application to the Tribunal to review the delegate’s decision in April 2014 a decision had previously been taken in March 2014 to refuse GNT’s application for approval; and
∙at the time when Mr Lee made the application for review of the decision to refuse the visa, no application was pending to review the refusal to approve GNT as the sponsor.
The facts of the present case are thus distinguishable from those in Ahmad. On the facts of that case, and as noted by the Full Court, there was a pending application for review of the decision not to approve the sponsor. A like conclusion was also reached by the same Full Court in Sharma v Minister for Immigration and Border Protection [2015] FCAFC 180, and El Masri v Minister for Immigration and Border Protection [2015] FCAFC 181.”[128]
[128] [2015] FCAFC 182; (2015) 237 FCR 365 at [17]; 368
C. Analysis of reasoning
We have included the case of Lee at this point in our reasoning purely for chronological reasons. The date on which Mr Lee applied to the MRT for review preceded the date on which Mr Ahmad lodged his application by a few days and his Honour’s judgment post‑dated Ahmad. He relied on and applied the reasoning of the Full Court in Ahmad. Flick J also referred to the judgments delivered by the Full Court at the same time as that in Ahmad: Sharma v Minister for Immigration and Border Protection[129] (Manisha Sharma) and El Masri v Minister for Immigration and Border Protection[130] (El Masri).
[129] [2015] FCAFC 180
[130] [2015] FCAFC 181
In Manisha Sharma, Mrs Manisha Sharma was the primary visa applicant and her husband and son were the secondary visa applicants. Ms Gupta trading as KLM Imports nominated Mrs Manisha Sharma as a Project Administrator. On 15 November 2013, a delegate of the Minister refused Ms Manisha Sharma’s application for a Subclass 457 visa on the basis that the position associated with the nominated occupation was not genuine. Therefore, Ms Manisha Sharma did not meet subparagraph 457.223(4)(d)(ii) and the delegate refused her application for a Subclass 457 visa. On 3 December 2013, Ms Gupta, applied to the MRT for review of the decision to refuse her application for approval of her nomination of Mrs Manisha Sharma. Later on the same day, Mrs Manisha Sharma applied to the MRT for review of the decision to refuse to grant her a Subclass 457 visa.
On 10 February 2015, the MRT decided to set aside the delegate’s decision and substituted a decision that Ms Gupta was approved as a standard business sponsor for a three-year period commencing on 20 June 2013 and that that status remained in effect. On 1 June 2015, the MRT decided that it did not have jurisdiction to consider Ms Manisha Sharma’s application and the Federal Circuit Court reached the same conclusion dismissing an appeal from the MRT’s decision. On appeal, the Full Court allowed it and set aside the FCC’s judgment saying:
“… On the facts of this case, at the time of the making of the application for review of the decision to refuse to grant the visa to Ms Sharma, an application for review of the decision to refuse the business nomination application in relation to an occupation had been made and was pending.”[131]
That meant that the requirements of s 338(2)(d)(ii) had been met in relation to Mrs Manisha Sharma’s application and the MRT had jurisdiction.
[131] [2015] FCAFC 180 at [19]
On 23 June 2014, Mr Khaled El Masri applied for a Subclass 457 visa nominating Marx and Co Pty Ltd as his sponsoring employer. An application by Marx and Co Pty Ltd for approval as a standard business sponsor was approved on12 September 2014 with effect until 12 September 2017. On 16 September 2014, a delegate of the Minister refused to grant a Subclass 457 visa to Mr El Masri on the basis that he did not have adequate arrangements in Australia for health insurance during the period of his intended stay in Australia. Max and Co Pty Ltd’s application for approval of its nomination of Mr El Masri was refused on the same day. The basis of the decision was that the delegate was not satisfied that the position associated with the nominated occupation of Contract Administrator to be genuine. Therefore, Mr El Masri did not satisfy paragraph 2.72(10)(f) of the Regulations which required the position associated with the nominated occupation to be genuine.
On 1 October 2014, Marx and Co Pty Ltd applied to the MRT for review of the decision to refuse the nomination of an occupation in respect of the appellant. Shortly afterwards on the same day, Mr El Masri lodged an application for review of the decision refusing his application for a Subclass 457 visa. On 10 April 2015, the MRT decided that it did not have jurisdiction to consider the application by Mr El Masri. A few days later, on 15 April 2015, the MRT affirmed the delegate’s decision refusing to approve the nomination. An appeal to the Full Court from a judgment of the Federal Circuit Court upholding the MRT’s decision was allowed. The Full Court’s reasons were:
“… On the facts of this case, at the time of the making of the application for review of the decision to refuse to grant the visa to Mr El Masri, an application for review of the decision to refuse the business nomination application in relation to an occupation had been made and was pending. As noted at [13] above, the application to review the decision to refuse the business nomination application was not ultimately successful, but this did not affect the jurisdiction of the Tribunal to review the visa decision.”[132]
[132] [2015] FCAFC 181 at [17]
(b) until a specified event happens; or (c) while the holder has a specified status.”
McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ
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