Alam v Minister for Immigration
[2020] FCCA 565
•17 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALAM v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 565 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal (AAT) – Temporary Work (Skilled) (Subclass 457) Visa – where AAT found it had no jurisdiction to review decision pursuant to s.338(2)(d) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.140E, 140GB, 338(2)(d), 476 |
| Cases cited: Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182; (2015) 237 FCR 365 |
| Applicant: | KHORSHED ALAM |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1418 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 17 February 2020 |
| Date of Last Submission: | 10 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 17 February 2020 |
REPRESENTATION
| Applicant appeared in person with the assistance of an interpreter in the Bengali/Bangla language |
| Solicitors for the Respondents: | Ms A Wong, Mills Oakley |
ORDERS
THE COURT:
AMENDS the name of the First Respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
DISMISSES the application filed 21 May 2018.
ORDERS that the Applicant pay the First Respondent’s costs fixed in the sum of $5,400.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1418 of 2018
| KHORSHED ALAM |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore, Revised from Transcript)
Introduction
This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) in which the Applicant, Mr Khorshed Alam, seeks judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, made on 15 May 2018. The Tribunal concluded that it did not have jurisdiction to review a decision of a Delegate of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (then the Minister for Home Affairs), dated 9 April 2018, not to grant Mr Alam a Temporary Work (Skilled) (Subclass 457) Visa.
The Tribunal so concluded on the basis that the Delegate’s decision was not reviewable because of the requirements of s.338(2)(d) of the Act were not met at the time Mr Alam lodged his application to the Tribunal.
Background facts
Mr Alam is a citizen of Bangladesh, born in 1984. Mr Alam arrived in Australia in 2007. On 1 September 2017, Mr Alam applied for the Visa on the basis of a nomination by a sponsoring employer, DM (Aust) Pty Ltd, for the position of a Cook. The application for the Visa was made with the assistance of a migration agent, and correspondence details identified the email address of the migration agent.
DM (Aust) nominated Mr Alam for a Subclass 457 visa, and the Department of Home Affairs notified DM (Aust) that the nomination had been approved on 15 March 2017. The notice of the decision of the nomination approval stated that the period of nomination approval ceased on the earliest of a list of events. Relevantly, dot point 4 of the events listed stated:
…
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;
…
I note that the notification of approval of the nomination contained advice that the applicant listed, namely, Mr Alam, should proceed with lodging an application for a subclass 457 visa if they are not already the holder of such a visa, and that, as the approved sponsor, it was essential that DM (Aust) provide the nominee with a copy of the letter and the attached information. I note also that the letter was sent to the same person, at the same address, as Mr Alam’s migration agent listed in his application for the Visa.
Proceeding before the Delegate and the Delegate’s decision
On 20 November 2017, the Department sent a letter to Mr Alam (at his migration agent) requesting more information it required to consider the application for the Visa. That request set out a checklist of requirements: to provide proof of payments or arrangements in relation to an outstanding debt to the Commonwealth, to fulfil character requirements for Australian Federal Police national police check, and to provide police clearance certificates, and immigration health examinations. Before me, Mr Alam has assured the Court he correctly provided the information sought.
On 9 March 2018, by letter, a delegate informed Mr Alam that one of the criteria for the grant of the Visa is an approved nomination and that Mr Alam’s prospective employer, DM (Aust), did not have an approved nomination for him at that time. As a result, his Visa application could not be approved. The letter stated as follows:
One of the criteria for the grant of a Temporary Work (Skilled) (subclass 457) is an approved nomination.
The nomination for Mr Khorshed Alam for the nominated position of Cook 351411 approved on 15/03/2017, and the current sponsorship for DM (AUST) PTY LTD expired on 04/09/2017. No new sponsorship application has lodged for DM (AUST) PTY LTD. Therefore, the approval of the nomination ceases 3 months after the day on which the person’s approval as a standard business sponsor ceases.
Your prospective employer, DM (AUST) PTY LTD, does not have an approved nomination for you at this time. As a result, your visa application cannot be approved.
If you wish to seek more information regarding why your prospective employer does not have an approved nomination for you please contact them directly.
In the absence of an approved nomination from your prospective sponsor, you can either:
· provide comment on your intentions regarding your visa application
· withdraw your application in writing
· provide comment or any other information which you think is relevant in response to this adverse information.
The letter invited Mr Alam to respond in writing within 28 days. I note that letter was sent, at least by email, to Mr Alam’s migration agent. No response was provided.
On 9 April 2018, as I have said, the Delegate notified Mr Alam of refusal of his application for the Visa. In the Delegate’s decision, the Delegate informed Mr Alam of the prescribed criteria for the grant of the Visa as set out in reg.457.223(1) of the Migration Regulations 1994 (Cth), which primary criteria were required to be satisfied at the time of the decision, namely, on 9 April 2018.
The Delegate referred further to the requirement that the approval of the nomination by the sponsor has not ceased (as provided for in reg.2.75 of the Regulations), and the Delegate set out that regulation. The Delegate stated as follows:
The applicant’s prospective employer, DM (Aust) Pty Limited, has lodged a nomination application in relation to the applicant on 7 February 2017 and the nomination was approved on 15 March 2017. However, the nomination was given to a standard business sponsor approved on 4 March 2016 and ceased on 4 September 2017. Therefore, according to Regulation 2.75(2)(d), the approved nomination has ceased on 4 December 2017.
As the nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act, but the approval of the nomination has ceased, as provided for in Regulation 2.75, the applicant does not meet 457.223(4)(a)(iii). Consequently, I am not satisfied that regulation 457.223(4)(a) has been met.
The Delegate found that Mr Alam did not satisfy the criteria at reg.457.223, was not satisfied that Mr Alam satisfied the primary criteria for the grant of the Visa, and refused the application.
Proceeding before the Tribunal and the Tribunal’s decision
On 28 April 2018, Mr Alam applied for review to the Tribunal by lodging an electronic application for review and a handwritten application for review on the same day. In his handwritten application for review, Mr Alam cancelled the authorised recipient and representative authorisation. That is, he stated that he withdrew his previous authorisation of a person to receive correspondence on his behalf. He wished all correspondence to be sent to himself. Mr Alam provided his own email address, and I note that subsequent correspondence from the Tribunal was sent to that email address.
On 28 April 2018, the Tribunal, by letter, acknowledged receipt of the application, and provided some standard information. On 30 April 2018, by letter sent on behalf of the Registrar, the Tribunal informed Mr Alam that the writer was of the view that the application was not valid. The letter provided as follows:
I am of the view that your application is not valid. This is because at the time the review application was lodged the applicant was not identified in a nomination under s.140GB of the Migration Act 1958 that was approved or pending. Nor was there a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E, or a decision not to approve the nomination under s.140GB of the Act. However, this is a matter which must be determined by a Member.
The Tribunal then invited Mr Alam to make any comments in writing by 14 May 2018 on whether a valid application had been made. Mr Alam sent an email on Sunday, 13 May 2018, in which he stated (without alteration):
I'm sorry but I don't have the legal knowledge required to provide a comment to your email.
I look forward to the Tribunal's response in relation to my appeal.
Besides, I feel my Visa has Refused was not my Fault. When I Apply for Visa I provided all the Valid Papers But department took a long time to make a decision and it was a Valid Application when I applied . I Submitted all the requirements including Police Clearance, Medical Examination etc. My Visa was refused but Case Officer did not give me any chance to explain that why I don’t Submit the nomination paper as requested by the Officer more than Six months after. But when I Submitted my Application I provided to the Valid documents in Relation my Application.
Therefore, I deeply requested to look forward to the tribunal Member in relation to my appeal.
As I have said, on 15 May 2018, the Tribunal issued its reasons advising of its Decision that the Tribunal has no jurisdiction to determine Mr Alam’s application. At [2], the Tribunal set out when it has jurisdiction, namely, if an application is properly made under s.347 or s.412 of the Act, and referred to ss.338 and 411 of the Act, and reg.4.02(4) of the Regulations, which set out the range of decisions that are reviewable by the Tribunal, and the circumstances in which they are reviewable.
The Tribunal stated that a decision to refuse an application for a subclass 457 visa is reviewable and then summarised the provisions of s.338(2)(d) as it stood at the time of the Tribunal’s Decision.
At [3] and [4], the Tribunal noted the correspondence with Mr Alam on 30 April 2018 and 13 May 2018. At [5], the Tribunal stated:
It is a criterion for the grant of a Subclass 457 visa that the applicant be sponsored by an approved sponsor. There is no information before the Tribunal that at the time the review application was lodged the applicant was sponsored by an approved sponsor or that an application for review of a decision refusing a sponsorship nomination had been applied for and was pending. Accordingly, the requirements of s.338(2)(d) are not met and the application is not, therefore, a reviewable decision.
At [7], The Tribunal thus concluded it had no jurisdiction to review the Delegate’s decision.
Relevant legislative provisions
At the time of the Tribunal’s Decision, s.338(2)(d) of the Act provided:
(2)A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
…
(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.
The definition of “sponsored” under Part 5 of the Act and reg.4.02(IAA) included being identified in a nomination under s.140GB of the Act.
To provide context, the criteria for the grant of a Temporary Work (Skilled) (subclass 457) visa were set out in reg.457.22, as identified by the Delegate. Amongst those requirements was that an applicant met the requirements of reg.457.223(4). Reg.457.223(4) provided as follows:
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;
Grounds of review
Mr Alam in his application set out his grounds of review as follows (without alteration save as for numbering):
(1)I have submitted valid application but was Refused by the Immigration department.
(2)Department of Immigration takes long time to make my decision but after nomination expired Department did not give me time for submit new nomination on application.
(3)The Empoyer has conflict with his business partner so that I could not get able to my nomination paper. I was expecting from the Department of Immigration department will give me time to find new Employer.
The proceeding in this Court
Mr Alam appeared before me today unrepresented, but with the benefit of an interpreter in the Bengali/Bangla language. Whilst he stated that had received the Minister’s submissions on his phone, at my request Ms Wong, solicitor appearing for the Minister, provided him with a hard copy of the Minister’s submissions, and at my request I requested Mr Interpreter translated them for Mr Alam.
Mr Alam indicated that he spoke and understood English, but that as he was nervous he would benefit from the assistance of the Interpreter. I informed Mr Alam that the role of the Court is very different from that of the Tribunal, and that the only issue before the Court was whether or not the decision of the Tribunal was made according to law, or, as I put it, whether there are legal problems with what the Tribunal did or did not do. I explained that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes a mistake going to the Tribunal’s jurisdiction.
I also explained to Mr Alam the cost consequences that would flow to him if a costs order was made against him if he lost. I confirmed with Mr Alam that he wished to proceed, and to proceed on the grounds set out in this application. I informed him of the Tribunal’s decision that it did not have jurisdiction, and I invited him to tell me what he said the legal problems were. I paraphrased Ms Wong’s submissions on behalf of the Minister, namely, that the Tribunal’s decision was correct as it did not have jurisdiction.
Mr Alam did not have any documents to tender. His submissions were briefly as stated in paragraph 3 of his grounds of review. He reiterated several times that he submitted all the documents, there was nothing fabricated, and he could not comprehend why the Department had refused him, and, particularly, that he did not hear from the Department for six or seven months, which did not give him time to, in effect, find another employer. Mr Alam also said that his lawyer said if he submitted the documents requested in the letter of 20 November 2017 (see at [6] above), he would receive the Visa.
Consideration and conclusion
In Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365; [2015] FCAFC 182 at [95] and following, the Full Court observed that the starting point of the jurisdiction of the Tribunal is whether, within the meaning of s.338(2)(d) of the Act, it is a criterion for the grant of the visa that the non-citizen, in that case Mr Ahmed, is “sponsored by an approved sponsor”, and the meaning of the words “sponsored by an approved sponsor” in s.338(2)(d)(i).
The Full Court there held that “sponsored by an approved sponsor” includes the circumstances where:
(a)the applicant, namely, in the present case, Mr Alam, was identified in an approved nomination by an approved sponsor; or
(b)the applicant was identified in a pending nomination application by an approved sponsor that was under consideration by the department; or
(c)there was a pending application for the review of a decision not to approve the sponsor under s.140E of the Act; or
(d)there was a pending application for review by the tribunal of a decision not to approve the nomination application under s.140GB.
The evidence before the Court is that whilst DM (Aust) was a standard business sponsor as at 1 September 2017, when Mr Alam applied for the Visa, its approval as a standard business sponsor ceased on 4 September 2017. Thus, the period of nomination approval for Mr Alam’s application ceased on 4 December 2017 (see [4] above).
Given that the sponsor had ceased to be an approved sponsor prior to Mr Alam’s application to the Tribunal, and there was, on the evidence, no information before the Tribunal that at the time Mr Alam’s application to the Tribunal was lodged, Mr Alam was sponsored by an approved sponsor, or that an application for review of a decision refusing a sponsor’s nomination had been applied for and was pending, the Tribunal’s finding in relation to s.338(2)(d)(i) of the Act that Mr Alam was not “sponsored by an approved sponsor” was correct. Further, as there was no information before this Court to contradict the statement at [5] of the Decision, there was nothing to enliven the Tribunal’s jurisdiction under s.338(2)(d)(ii) of the Act.
On the evidence before me, the Tribunal did not have jurisdiction. It follows that the Tribunal correctly found that the requirements of s.338(2)(d) of the Act were not met, and that Mr Alam’s application to it was not, therefore, a reviewable decision. There is no jurisdictional error on the face of the Tribunal’s decision.
The grounds of review do not engage with the basis of the Tribunal’s Decision, namely, that it had no jurisdiction.
As to Ground 1, this Court does not have jurisdiction to review the Delegate’s decision. The question before the Tribunal was whether the Tribunal had jurisdiction, and only if it did so would it then, its jurisdiction being enlivened, consider whether the applicant, Mr Alam, met the criteria for grant of Visa.
As to Ground 2, it is relevant to note that, contrary to Mr Alam’s submission, the Department’s invitation in its letter of 9 March 2018 to Mr Alam to withdraw gave Mr Alam 28 days to respond (see [7] above). Mr Alam did not take up that invitation.
As to Ground 3, the ground does not engage with the Tribunal’s Decision, and appears to take issue with the merits of the Delegate’s decision. The Ground does not point to any error on the part of the Tribunal.
I dismiss each of Grounds 1, 2, and 3 of the Application. It follows the first respondent is entitled to his costs. I will so order.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 19 March 2020
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