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:
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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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1412960 (Migration) [2016] AATA 4193
Case
[2016] AATA 4193
Decision Date
CaseChat Overview and Summary
This matter concerned a decision made under Part 5 of the *Migration Act 1958* (Cth). The specific issue before the court was whether a particular decision was a "Part 5-reviewable decision" as defined by section 338(2) of the Act. The court was required to interpret the criteria set out in section 338(2) and relevant regulations, including Regulation 4.02(1A) and 4.02(1AA), to determine if the decision in question fell within the scope of reviewable decisions.
The court's reasoning focused on the statutory definition of a "Part 5-reviewable decision" and the meaning of "sponsored" and "nominated" as provided by the *Migration Regulations 1994* (Cth). It examined the conditions under which a decision to refuse to grant a visa is reviewable, particularly concerning the applicant's location in the migration zone, their immigration clearance status, and sponsorship requirements for certain temporary visas, such as the Subclass 457 visa. The court also addressed the application of the doctrine of precedent, specifically the *ratio decidendi* of Federal Circuit Court judgments in migration matters, outlining the criteria for such judgments to be binding.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.” 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.