1502371 (Migration) - [2015] AATA 3106

1502371 (Migration) [2015] AATA 3106 (7 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Joseph Benoit Louis Jean
Mrs Marie Nathalie Louis Jean
Mr Laval Didier Louis Jean
Mr Adriano Benoit Louis Jean
Mr Joseph Richard Louis Jean
CASE NUMBER:  1502371
DIBP REFERENCE(S):  BCC2011/254354
MEMBER:Adrian Ho
DATE:7 July 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 07 July 2015 at 1:21pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

An application was made to the Tribunal on 17 February 2015. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.
Mr Joseph Benoit Louis Jean is referred to as the applicant in this decision.
The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable.
All references to a section of an Act or to a regulation are references to the Migration Act and the Migration Regulations, respectively, unless otherwise indicated.
In the circumstances of this case, the primary decisions are reviewable if they are Part 5-reviewable decisions. They are so, if at least one of the following circumstances existed at the time the applicant attempted to make the tribunal review application:
·the applicant was sponsored by an approved sponsor – s.338(2)(d)(i); and/or
·there was a pending application to the tribunal for review of a decision not to approve the sponsor as a standard business sponsor – s.338(2)(d)(ii).
In order to be ‘sponsored’ for s.338(2)(d)(i), the applicant must be identified in an approved nomination of an occupation under s.140GB that is in force at the time the review application is lodged (see MIBP v Lee [2014] FCCA 2881).
The tribunal wrote to the applicant and informed the applicant of the requirements laid out above, suggested to the applicant that the tribunal may not have jurisdiction as it appeared that neither of the two circumstances above existed at the time the tribunal review application was received, and invited comment by a certain date.
A request for access to information held by the tribunal was accommodated.
In a written reply the applicant’s representative, Mr Michael Clothier, concedes that neither of the two threshold requirements above existed at the relevant time.
He also asserts that Lee was not correctly decided. The tribunal notes that the position in Lee has recently been confirmed in Damore (see below), and the tribunal is bound by those court decisions.

Paragraphs 338(2)(d)(i) and (ii)

The tribunal considers that since the Federal Court decision in MIAC v Islam [2012] FCA…

Grounds of appeal

[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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Details

Case: [2015] AATA 3106
Decision Date: 7 July 2015

CaseChat Overview and Summary

In the matter of 1502371 (Migration), the Federal Circuit Court addressed a dispute involving the jurisdiction of the tribunal to review certain decisions. The applicant sought to challenge primary decisions made by the Minister for Immigration, asserting that the tribunal had jurisdiction to review those decisions under section 338 of the relevant legislation. The Federal Circuit Court was tasked with determining whether the tribunal's jurisdiction was correctly engaged in this instance.

The court had to decide whether the primary decisions were "Part 5-reviewable decisions" under section 338(2)(d)(i) or (ii), which would confer jurisdiction on the tribunal. Specifically, the court needed to interpret the relevant provisions in light of previous cases, including Lee and Damore, and consider whether the applicant's situation fell within the scope of these subsections. Additionally, the court needed to examine whether there was any other basis under section 338 that could confer jurisdiction on the tribunal.

In reaching its decision, the Federal Circuit Court adopted the interpretation of the relevant provisions as set out in Ahmad v Minister for Immigration & Anor. The court held that the applicant was not "sponsored by an approved sponsor" and that there was no pending application for review of a decision not to approve the applicant’s potential sponsor. Consequently, the court found that neither subsection 338(2)(d)(i) nor (ii) applied to the applicant's situation. The court further determined that there was no other subsection of section 338 that could confer jurisdiction on the tribunal. As a result, the tribunal did not have jurisdiction to review the primary decisions in question.

The Federal Circuit Court concluded that the tribunal did not have jurisdiction in this matter. Consequently, the application for review was dismissed.

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

This is the interpretation recently adopted by the Federal Circuit Court in Ahmad v Minister for Immigration & Anor [2015] FCCA 1486[1], by which the tribunal is bound.[1] >On this construction, and applying Lee and Damore, s.338(2)(d)(i) is broad enough to admit an approved nomination under s.140GB by an approved standard business sponsor, where both approvals have not ceased, and, s.338(2)(d)(ii) is addressed to situations where the approval of the sponsor required by s.338(2)(d)(i) is lacking because there has been “a decision not to approve the sponsor” and that decision is being challenged on review and has not yet been determined by the tribunal: Ahmad.The tribunal acknowledges that when the applicant attempted to apply for review, the applicant may not have had the benefit of the court’s insight in Lee. In any event, the applicant has been given an opportunity to comment on the state of the law, and has done so, and the tribunal is nonetheless bound by and applies Lee and Damore in arriving at the above interpretation of s.338(2)(d)(i), and in determining its jurisdiction.The applicant has conceded that at the relevant time he was not “sponsored by an approved sponsor” nor was there a pending application to the tribunal for review of a decision not to approve the applicant’s potential sponsor as a standard business sponsor.On the evidence, the tribunal finds that the applicant was not the subject of an approved nomination that was in force and which had not ceased on the day the applicant attempted to make the present tribunal review application.On the evidence, there was no pending tribunal review application of a decision not to approve the applicant’s would-be sponsor as a standard business sponsor, as required by s.338(2)(d)(ii): Ahmad.There is no evidence the tribunal’s jurisdiction is engaged because of circumstances applicable to the remaining review applicants.Therefore the primary decisions are not Part 5-reviewable decisions by virtue of either subsection 338(2)(d)(i) or (ii). On the evidence, the primary decisions are not Part 5-reviewable decisions by any other subsection of s.338. The tribunal finds that the primary decisions are not Part 5-reviewable decisions. As the application for review does not pertain to any Part 5-reviewable decision, the tribunal does not have jurisdiction in this matter.DECISIONThe Tribunal does not have jurisdiction in this matter.Adrian HoMember The Tribunal does not have jurisdiction in this matter.

Ratio Decidendi

Legal Principle Established

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