Ahmad v Minister for Immigration & Anor
[2015] FCCA 1486
•29 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHMAD v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1486 |
| Catchwords: MIGRATION – Migration Review Tribunal – Class UC Subclass 457 visa – whether the Tribunal lacked jurisdiction – approved nomination – definition of sponsor – no jurisdictional error – application dismissed. |
| Legislation: Acts Interpretation Act 1901 ss.15AA, 15AB |
| Damore & Anor v Minister For Immigration & Anor [2015] FCCA 1289 Minister for Immigration and Citizenship v Islam (2012) 202 FCR 46 Minister For Immigration v Lee & Ors [2014] FCCA 2881 |
| Applicant: | RANA MUKHTAR AHMAD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 896 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 29 May 2015 |
| Date of Last Submission: | 29 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr O. Jones |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr M. Smith |
| Solicitors for the Respondent: | Mills Oakley Lawyers |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 869 of 2015
| RANA MUKHTAR AHMAD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 11 March 2015, in which it found that it lacked jurisdiction in the application to review the refusal to grant the applicant a Class UC Subclass 457 visa by the delegate. The application identifies the following ground:
1. The Second Respondent made a jurisdictional error by failing to exercise jurisdiction.
Particulars
a. The Second Respondent misconstrued s 338(2)(d)(ii) of the Migration Act 1958 (Cth) (Act).
b. The Second Respondent reasoned that an "application for review of a decision not to approve the sponsor" within the meaning of s 338(2)(d)(ii) of the Act did not include an application for review of a decision not to approve an application by the sponsor for approval of a nomination of an occupation in relation to the Applicant under s 140GB of the Act when read with reg 2.72 of the Regulations.
c. An "application for review of a decision not to approve the sponsor" within the meaning of s 338(2)(d)(ii) of the Act:
i. is not confined to an application for review of a decision not to approve an application by the sponsor to be approved as a standard business sponsor under s 140E of the Act when read with reg. 2.59 of the Migration Regulations 1994 (Cth.) (Regulations); and
ii. includes an application for review of a decision not to approve an application by the sponsor for approval of a nomination of an occupation in relation to the Applicant under s 140GB of the Act when read with reg.2. 72 of the Regulations.
Immediately prior to the lodging of the application for review of the delegate’s decision to the Tribunal, there was in fact filed an application for review of a decision by the Minister under s.140GB to refuse to approve a nomination within reg.4.02(4)(d). That regulation also provides a right of review as a MRT-reviewable decision for a decision under s.140E(1) of the Act to refuse a person’s application for approval as a sponsor in relation to one or more classes of sponsor under reg.4.02)(4)(a).
It was common ground that, at the time of the application for review, the applicant was not an approved nomination by the Minister under s.140GB(2) in respect of the applicant. To the extent that there was a construction argument advanced in the grounds identified in respect of s.338(2)(d)(i), Mr Jones accepted that this Court would follow the decision in Minister For Immigration v Lee & Ors [2014] FCCA 2881, which, to the extent relevant, is consistent with the principles identified by Robertson J in Minister for Immigration and Citizenship v Islam (2012) 202 FCR 46 and has been applied in this Court in Damore & Anor v Minister For Immigration & Anor [2015] FCCA 1289.
Mr Jones of counsel skilfully sought to advance the argument that on its proper construction, s.338(1)(d)(ii) implicitly included a decision not to approve a sponsor nomination. Mr Jones acknowledged the effect of his construction was one in respect of which, as a practical matter, it would give rise to the provision being read in a way in which that extended the provision effectively to include words:
or not to approve the sponsor’s nomination.
Mr Jones, however, maintained that he was not seeking to read in words, but was advancing an implication on the proper construction of the concept of “not to approve the sponsor”, taking into account two alternative arguments. The first was an argument based on the proposition that the regulation is consistent with s.337 under Part 5, Division 1, which says:
Sponsored has the same meaning as in the regulations.
This, Mr Jones pointed out, picks up reg.4.02(1AA) that says:
For section 337 of the Act, sponsored includes being identified in a nomination under section 140GB of the Act.
Mr Jones has sought to advance that the use of the term “sponsor” in s.338(1)(d)(ii) was a use of another part of speech or grammatical form of the word “sponsored” and thereby s.338(1)(d)(ii) could be read as including the existence of an application for review of a decision refusing to approve the nomination under s.140GB. I reject that construction.
The reference to “the sponsor” is not one that picks up the meaning of 4.02(1AA) “sponsored”. The Act must be read as a whole and it is necessary to take into account the structure, context and text meaning, the headings and subheadings and subdivisions of the Act. Relevantly, in Part 2, subdivision 3A, entitled Sponsorship, there is a subdivision headed Approving Sponsors and Nominations; see s.13 of the Acts Interpretation Act. That heading identifies two different processes.
It is clear from the text of s.140E and s.140GB that there are two different processes involved in the decision of a Minister to approve a sponsor and in the decision of a Minister to approve the nomination. Section 338, found in Division 1 of Part 5 Review of Decisions, defines, for the purpose of the Migration Review Tribunal, what is an MRT-reviewable decision. Subsection (2) of s.338, in its context, refers to circumstances where there is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor.
It is clear that the reference in s.338(2)(d)(ii), to the requirement that there be on foot an application to review a decision not to approve the sponsor, is referring to a person who has applied to be an approved sponsor under s.140E, to the extent that the language found in s.338(2)(d)(ii) uses the definite article that is in contrast to the use of the indefinite article found in s.140E where it refers to sponsor.
It is clear that the reference in s.338(1)(d)(ii) to the sponsor is a reference to the person who was an approved sponsor consistent with the definition in s.5 of the Act, which provides as follows:
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.
Section 5 identifies a cumulative requirement in respect of a person within paragraph (a) and distinguishes between the concept of the approval under s.140E and circumstances in which the approval has effect under s.140GB. To the extent that s.18A is of assistance, in my opinion it supports the meaning of “approved sponsor” as defined in s.5 as being the person to whom the “the sponsor” is referring in s.338(2)(d)(ii). The definition in s.5 of the Act , whilst qualified in respect of unless the contrary intention appears, in my opinion in respect of s.338 (2)(d)(ii), where it is clear that the contrary intention does not appear and, in those circumstances, the provisions of the Act prevail over the regulations.
Mr Jones developed a second argument, through the lens of s.15AA of the Acts Interpretation Act, in identifying the object or purpose of s.338. Mr Jones identified the following passage in an explanatory memorandum:
44. …
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.
Mr Jones advanced that the second sentence identified that the provision was directed at redressing a mischief and that that mischief would in no way be violated by a construction that extended and included in the meaning of s.338(2)(d) a refusal to approve a nomination by an approved sponsor. The difficulty with this construction is that the explanatory memorandum gave reference to s.338(2)(d) the first sentence is what is being referred to in the second sentence and it does not, in my opinion, in any way address the issue of a nomination being refused under s.140GB.
Mr Jones defendant the second argument by using the Second Reading Speech in the House of Representatives Hansard, 4 June 2003, page 15922, and, also, from the Senate on 25 June 2003, page 12555, to the following effect:
45. Essentially the same point was made by the Minister in his Second Reading speech to the House of Representatives (Hansard, House of Representatives, 4 June 2003, p 15922; sec also Senate, 25 June 2003, p 12555):
In addition, the bill seeks to prevent abuse of the merits review process by cc1tain temporary visa applicants who are required to have a sponsor but who, at the time of applying for review, do not have a sponsor or have not attempted to obtain one.
In these cases, the decision to refuse to grant the visa cannot ever be overturned by the tribunal, because the requirement that the applicant be sponsored is simply not satisfied.
This amendment will effectively close off a loophole that has led to visa applicants pursuing what are clearly unmeritorious claims
The difficulty facing this second argument is that the mischief which is addressed in respect of the approved sponsor, refers to s.140E, and that there is no basis to infer a reference to s.140GB.
Mr Jones argued that the purpose or object was to provide a right of review in circumstances where it was not hopeless and there was no person who was an approved sponsor and that to include a refusal to approve a nomination would be consistent with that purpose. The language, context and structure of the Act does not support a purpose to that effect. To the extent that Mr Jones relied on s.15AB(i) (b) it cannot be said that the operation, given where the construction of s.328(2)(d)(ii) bears on its face, is one which was manifestly absurd or unreasonable, nor is it a construction that does not advance the identified purpose and the identified mischief consistent with the explanatory memorandum and with the Second Reading Speech. I reject the second argument
The Tribunal relevant said:
8. The Tribunal has considered the submissions, but is not satisfied that they provide a basis for finding that a valid review application has been made. As indicated above, and as raised in the Tribunal’s letter of 6 March 2015, the Tribunal does not have jurisdiction where an application for review of a decision to refuse a nomination was pending at the time the review application was lodged, as s.338(2)(d)(ii) only refers to review of a decision not to approve the sponsor.
9. The Tribunal finds that at the time the review application was lodged on 22 May 2014, there was no nomination of an occupation relating to the applicant that was approved under s.140GB of the Act and was in force. At that time, there was also no application for review of a decision not to approve the sponsor, which was pending before the Tribunal.
10. The Tribunal therefore finds that the requirements of s.338(2)(d) are not met.
11. Accordingly, the Tribunal finds that the decision to refuse the applicant a Subclass 457 visa is not an MRT reviewable decision in accordance with s.338(2)(d) and r.4.02(1A). As the delegate’s decision is not MRT-reviewable, in these circumstances it follows that the application for review was not properly made under s.347 for review of an MRT-reviewable
decision for the purposes of s.348 and the Tribunal does not have jurisdiction in this matter
The Tribunal was correct in holding that it had no jurisdiction and correct in holding that s.338(2)(d)(ii) had no application in the present case. The application is dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 4 June 2015
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