Ali v Minister for Immigration

[2015] FCCA 2190

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2190

Catchwords:
MIGRATION – Application for review of decision of the Migration Review Tribunal – whether the Tribunal failed to consider the combined effects of ss.31, 46, 66, 338 and 349 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.31, 46, 66, 338, 347, 348, 349, 476

Migration Regulations 1994 (Cth), Schedule 1, Schedule 2
Acts Interpretation Act 1901 (Cth), ss.25, 46

IMMI 13/066

Bal v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 189; (2002) 189 ALR 566
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91

First Applicant: RIAZ SHIRAZ ALI

Second Applicant: JANICE JOTI MALINI

Third Applicant: MICHELLE ASHNA NANDITA REDDY

Fourth Applicant: RISHAAD RAKSHAAN ALI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 345 of 2014

Judgment of: Judge Nicholls

Hearing date: 7 April 2015

Date of Last Submission: 7 April 2015

Delivered at: Sydney

Delivered on: 7 April 2015

REPRESENTATION

First Applicant:

Second Applicant

Third Applicant

Fourth Applicant

In Person

In Person

In Person

In Person

Counsel for the Respondents: Mr D A Hughes

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 17 February 2014 and amended on 14 April 2014 is dismissed.

2. The first, second, and third applicants pay the first respondent’s costs set in the amount of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 345 of 2014

RIAZ SHIRAZ ALI

First Applicant

JANICE JOTI MALINI

Second Applicant

MICHELLE ASHNA NANDITA REDDY

Third Applicant

RISHAAD RAKSHAAN ALI

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 17 February 2014 and amended on 14 April 2014 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 20 January 2014. The Tribunal found that it did not have jurisdiction to consider an application for review made by the applicants. That application sought review of the decision of the Minister’s delegate which refused Temporary Business Entry visas (“the visas”) to the applicants.

2. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following background can be ascertained from those documents.

3. The applicants are citizens of Fiji (CB 1 to CB 3). They applied for the visa on 14 June 2013 (CB 1 to CB 50, including attachments). Mr Riaz Shiraz Ali (“the applicant”) sought to satisfy the criteria for the grant of the visa, while the second (his wife), third and fourth applicants (his children) applied as members of his family unit. It appears from documentation submitted later in the application, the applicant was assisted “unofficially” by Mr Toufic Laba Sarkis (CB 55 and CB 103 to CB 105).

4. Relevant to the application before the Court, in the visa application form, the applicants did not specify a sponsor at Part B, in response to question 39 (CB 8). A letter from the department on 18 June 2013 confirmed receipt of the application. It included a reference to the applicant’s sponsor “Oz Halal Pty Ltd” (“the sponsor”) (CB 53). The sponsor had lodged a nomination application on the same date as the visa application (CB 82.5).

5. The delegate refused the application for the visas on 18 November 2013 (CB 71 to CB 89). The delegate found that the sponsor was a “business involved in the activity of slaughtering animals, or primarily boning, slicing or packaging meat in a non-retail setting”.

6. In the decision record, the delegate referred to a letter sent to the applicants on 18 October 2013. The applicant was asked to comment on the “issue”, that his sponsor had nominated, in the associated application for nomination approval, the following description “ANSCO 351211 Butcher or Smallgoods Maker”. This did not correspond with an occupation specified by the Minister in the relevant legislative instrument (see IMMI 13/066) (see CB 64 and CB 83.5).

7. The delegate noted that, by way of that letter, the applicant was put on notice that the visa application was “unlikely to be successful” as the requirements of cl.457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) could not be met. The applicant was given 28 calendar days to comment. No response or comment was received from the applicant by the department (CB 83.7).

8. As such, the delegate was not satisfied that the nominated position was “specified in the most current legislative instrument”. Therefore, the delegate was not satisfied that the applicant met cl.457.223(4)(aa) of Schedule 2 to the Regulations and refused the grant of the visa to the applicant. As the other applicants had applied as members of the family unit, their visa applications were also refused.

9. The applicants applied for review of the delegate’s decision on 5 December 2013 to the Tribunal. A number of documents accompanied the application.

10. The Tribunal sent a letter to the applicants, dated 20 December 2013, stating that it was of the view that their application was not valid, as the application for approval as a sponsor, made by the sponsor, had been refused on 18 November 2013.

11. In that light, the Tribunal notified the applicants that it was of the view that their application (here a distinction must clearly be made between the application for the visa and the application for the review by the Tribunal) was not a valid application and that, therefore, the Tribunal, as a consequence, did not have jurisdiction.  It invited the applicants’ comment (CB 264 to CB 265). The applicants responded on 4 January 2014 (CB 268).

12. On 20 January 2014 the Tribunal determined that it did not have jurisdiction to consider the applications. The Tribunal found that its relevant jurisdiction arose under s.348 of the Act only if an application was properly made under s.347 of the Act for review of a “MRT-reviewable decision”. The Tribunal relied on s.338 of the Act for the definition of an “MRT-reviewable decision”. It found that the applicant did not meet s.338(2)(d) of the Act, as a requirement for the grant of the visa was that the applicant be sponsored by an approved sponsor. The sponsor’s sponsorship application had been refused on 18 November 2013. As such, the applicant was not sponsored by an approved sponsor at the time of the application for review ([7] at CB 275). Further, there was no application for the review of that decision ([7] at CB 275).

13. Notwithstanding the applicant’s explanation for the lack of sponsorship ([9] at CB 276), the Tribunal concluded that the application was not an “MRT-reviewable” decision. As such, the application for review was not properly made for the purposes of s.348 of the Act, and therefore it determined that it did not have jurisdiction in that matter.

Application Before the Court

1. The sole ground of the amended application is as follows:

   “The second respondent in concluding both that a visa application was made on 14 June 2013 and that it did not have jurisdiction, misconstrued the law by failing to consider and properly determine the combined effect of ss 31, 46, 66, 338 and 349 of the Migration Act 1958 taken together with item 1223A Sch 1 of the Migration Regulations.”

2. The applicants seek the following relief:

   a)an order that the decision of the Tribunal be quashed;

   b)A writ of mandamus directed to the Tribunal or Minister requiring them to determine the applicant’s application according to law;  and

   c)Three orders, being:

   i)in the alternative, a declaration that the applicants did not, on or about 14 June 2014, make a valid visa application together with a declaration that they are not currently adversely affected by section 48 of the Act;

   ii)an order that the first respondent refund to the first applicant all filing fees paid to the first respondent in respect of a visa application said to have been made on or about 14 June 2013;

   iii)an order for costs.

Relevant Legislation

1. Section 31 of the Act is in the following terms:

   “31  Classes of visas

   (1)  There are to be prescribed classes of visas.

   (2)  As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A, 38, 38A and 38B.

   (3)  The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).

   (4)  The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.

   (5)  A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.”

2. Section 46 of the Act is in the following terms:

   “46  Valid visa application

   Validity—general

   (1)  Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

   (a)  it is for a visa of a class specified in the application; and

   (b)  it satisfies the criteria and requirements prescribed under this section; and

   (ba)  subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and

   (c)  any fees payable in respect of it under the regulations have been paid; and

   (d)  it is not prevented by section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 91K (temporary safe haven visa), 91P (non‑citizens with access to protection from third countries), 161 (criminal justice), 164D (enforcement visa), 195 (detainees) or 501E (visa refused or cancelled on character grounds).

   (1A)  Subject to subsection (2), an application for a visa is invalid if:

   (a)  the applicant is in the migration zone; and

   (b)  since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and

   (c)  the Minister has not waived that condition under subsection 41(2A); and

   (d)  the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.

   (2A)  An application for a visa is invalid if:

   (a)  prescribed circumstances exist; and

   (aa)  the Minister has not waived the operation of this subsection in relation to the application for the visa; and

   (ab)  the applicant has been required by an officer to provide one or more personal identifiers in relation to the application; and

   (b)  the applicant has not complied with the requirement.

   Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).

   (2AA)  An officer must not require, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier other than:

   (a)  if the person is an applicant for a protection visa—any of the following (including any of the following in digital form):

   (i)  fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);

   (ii)  a photograph or other image of the person’s face and shoulders;

   (iii)  an audio or a video recording of the person;

   (iv)  an iris scan;

   (v)  the person’s signature;

   (vi)  any other personal identifier contained in the person’s passport or other travel document;

   (vii)  any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a); or

   (b)  if the person is an applicant for a temporary safe haven visa within the meaning of section 37A, or any other visa of a class that the regulations designate as a class of humanitarian visas—any of the following (including any of the following in digital form):

   (i)  fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);

   (ii)  a photograph or other image of the person’s face and shoulders;

   (iii)  an iris scan;

   (iv)  the person’s signature;

   (v)  any other personal identifier contained in the person’s passport or other travel document;

   (vi)  any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a); or

   (c)  if paragraphs (a) and (b) do not apply—any of the following (including any of the following in digital form):

   (i)  a photograph or other image of the person’s face and shoulders;

   (ii)  the person’s signature;

   (iii)  any other personal identifier contained in the person’s passport or other travel document;

   (iv)  any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a).

   Note:         Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.

   (2AB)  In requiring, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier, an officer must not contravene regulations made for the purposes of paragraph (2AC)(b).

   (2AC)  The regulations:

   (a)  may prescribe other types of personal identifiers; and

   (b)  may provide that a particular personal identifier referred to in subsection (2AA), or a particular combination of such personal identifiers, must not be required except in the circumstances prescribed for the purposes of this paragraph.

   (2B)  The applicant is taken not to have complied with a requirement referred to in paragraph (2A)(ab) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer.

   Note: If the types of identification tests that the authorised officer may carry out are specified under section 5D, then each identification test must be of a type so specified.

   (2C)  However, subsection (2B) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the applicant:

   (a)  provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and

   (b)  complies with any further requirements that are prescribed relating to the provision of the personal identifier.

   (3)  The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.

   (4)  Without limiting subsection (3), the regulations may also prescribe:

   (a)  the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

   (b)  how an application for a visa of a specified class must be made; and

   (c)  where an application for a visa of a specified class must be made; and

   (d) where an applicant must be when an application for a visa of a specified class is made.”

3. Section 66 of the Act is in the following terms:

   “66  Notification of decision

   (1)  When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

   (2)  Notification of a decision to refuse an application for a visa must:

   (a)  if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and

   (b)  if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and

   (c)  unless subsection (3) applies to the application—give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

   (d)  if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:

   (i)  that the decision can be reviewed; and

   (ii)  the time in which the application for review may be made; and

   (iii)  who can apply for the review; and

   (iv)  where the application for review can be made.

   (3)  This subsection applies to an application for a visa if:

   (a)  the visa is a visa that cannot be granted while the applicant is in the migration zone; and

   (b)  this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.

   (4)  Failure to give notification of a decision does not affect the validity of the decision.

   (5)  This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.

   Note:         Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.”

4. Section 338 of the Act is in the following terms:

   “338  Definition of Part 5‑reviewable decision

   (1)  A decision is an MRT‑reviewable decision if this section so provides, unless:

   (a)  the Minister has issued a conclusive certificate under section 339 in relation to the decision; or

   (b)  the decision is an RRT‑reviewable decision; or

   (c)  the decision is to refuse to grant, or to cancel, a temporary safe haven visa.

   (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 an MRT‑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.

   (3)  A decision to cancel a visa held by a non‑citizen who is in the migration zone at the time of the cancellation is an MRT‑reviewable decision unless the decision:

   (a)  is covered by subsection (4); or

   (b)  is made at a time when the non‑citizen was in immigration clearance; or

   (c)  was made under subsection 134(1), (3A) or (4) or section 501.

   (3A)  A decision under section 137L not to revoke the cancellation of a non‑citizen’s visa is an MRT‑reviewable decision if the non‑citizen was in the migration zone when the decision was made.

   (4)  The following decisions are MRT‑reviewable decisions:

   (a)  a decision to refuse to grant a bridging visa to a non‑citizen who is in immigration detention because of that refusal;

   (b)  a decision to cancel a bridging visa held by a non‑citizen who is in immigration detention because of that cancellation.

   (5)  A decision to refuse to grant a non‑citizen a visa is an MRT‑reviewable decision if:

   (a)  the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and

   (b)  the non‑citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:

   (i)  an Australian citizen; or

   (ii)  a company that operates in the migration zone; or

   (iii)  a partnership that operates in the migration zone; or

   (iv)  the holder of a permanent visa; or

   (v)  a New Zealand citizen who holds a special category visa.

   (6)  A decision to refuse to grant a non‑citizen a visa is an MRT‑reviewable decision if:

   (a)  the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and

   (b)  a criterion for the grant of the visa is that the non‑citizen has been an Australian permanent resident; and

   (c)  a parent, spouse, de facto partner, child, brother or sister of the non‑citizen is an Australian citizen or an Australian permanent resident.

   Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.

   (7)  A decision to refuse to grant a non‑citizen a visa is an MRT‑reviewable decision if:

   (a)  the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and

   (b)  a criterion for the grant of the visa is that the non‑citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non‑citizen; and

   (c)  particulars of the relative concerned are included in the application.

   Note:  Section 5G may be relevant for determining family relationships for the purposes of this subsection.

   (7A)  A decision to refuse to grant a non‑citizen a permanent visa is an MRT‑reviewable decision if:

   (a)  the non‑citizen made the application for the visa at a time when the non‑citizen was outside the migration zone; and

   (b)  the visa is a visa that could be granted while the non‑citizen is either in or outside the migration zone.

   (8)  A decision, under section 93, as to the assessed score of an applicant for a visa is an MRT‑reviewable decision if:

   (a)  the visa is a visa that could not be granted while the applicant is in the migration zone; and

   (b)  the applicant, as required by a criterion for the grant of the visa, was sponsored or nominated by:

   (i)  an Australian citizen; or

   (ii)  the holder of a permanent visa; or

   (iii)  a New Zealand citizen who holds a special category visa; and

   (c)  the Minister has not refused to grant the visa.

   (9)  A decision that is prescribed for the purposes of this subsection is an MRT‑reviewable decision..”

1. Section 349 is in the following terms:

   “349  Powers of Migration Review Tribunal

   (1)  The Tribunal may, for the purposes of the review of an MRT‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

   (2)  The Tribunal may:

   (a)  affirm the decision; or

   (b)  vary the decision; or

   (c)  if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

   (d)  set the decision aside and substitute a new decision.

   (3)  If the Tribunal:

   (a)  varies the decision; or

   (b)  sets aside the decision and substitutes a new decision;

   the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

   (4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.”

2. Also relevant to the Tribunal’s decision, ss.347 and 348 of the Act are in the following terms:

   “347  Application for review by Migration Review Tribunal

   (1)  An application for review of an MRT‑reviewable decision must:

   (a)  be made in the approved form; and

   (b)  be given to the Tribunal within the prescribed period, being a period ending not later than:

   (i)  if the MRT‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or

   (ii)  if the MRT‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or

   (iii)  if the MRT‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and

   (c)  be accompanied by the prescribed fee (if any).

   (2)  An application for review may only be made by:

   (a)  if the MRT‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—the non‑citizen who is the subject of that decision; or

   (b)  if the MRT‑reviewable decision is covered by subsection 338(5) or (8)—the sponsor or nominator referred to in the subsection concerned; or

   (c)  if the MRT‑reviewable decision is covered by subsection 338(6) or (7)—the relative referred to in the subsection concerned; or

   (d)  if the MRT‑reviewable decision is covered by subsection 338(9)—the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.

   Note: Section 5G may be relevant for determining family relationships for the purposes of paragraph (2)(c).

   (3)  If the MRT‑reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.

   (3A)  If the primary decision was covered by subsection 338(7A), an application for review may only be made by a non‑citizen who:

   (a)  was physically present in the migration zone at the time when the decision was made; and

   (b)  is physically present in the migration zone when the application for review is made.

   (4)  If the MRT‑reviewable decision was covered by subsection 338(4), the approved form for an application for review must include a statement advising the applicant that the applicant may:

   (a)  request the opportunity to appear before the Tribunal; and

   (b)  request the Tribunal to obtain oral evidence from a specified person or persons.

   A request must be made in the approved form and must accompany the application for review.

   (5) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of MRT‑reviewable decisions (which may be decisions that relate to non‑citizens in a specified place).

   …

   348  Migration Review Tribunal must review decisions

   (1)  Subject to subsection (2), if an application is properly made under section 347 for review of an MRT‑reviewable decision, the Tribunal must review the decision.

   (2)  The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.”

Before the Court

1. At the first Court date in this matter the first and second applicants appeared in person. At this time the matter was set down for mention at a callover on 7 May 2014. Prior to that date a solicitor came onto the record and the matter was listed, by consent, for hearing on 7 April 2015. The applicants, through their solicitors, filed an amended application on 14 April 2014.

2. The solicitor subsequently withdrew from the proceedings (see the “Notice of Withdrawal of Lawyer” of 23 March 2015).

3. At the final hearing the first, second and third applicants appeared in person. The fourth applicant was represented by his parents. They were assisted by an interpreter in the Hindi language. Mr D Hughes, of counsel, appeared for the first respondent.

4. The Minister filed written submissions in these proceedings.  Beyond the amended application, nothing further has been filed by, or on behalf of, the applicants.  The applicants today were unable to assist the Court with the sole ground of the amended application and, in essence, stated that they did not know the legal basis, or the arguments, that could explain the terms of the sole ground. 

5. The Minister made detailed submissions which refer to the relevant legislative and regulatory scheme.  I gave the applicants the opportunity to comment on those submissions.  At most, all the applicants were able to say was that they now did have a work sponsor.  However, as I said to the applicants, that was not of assistance, and given that it postdates the Tribunal’s decision, this could not be relevant to revealing error in the Tribunal’s determination.

6. The Tribunal decided that it did not have jurisdiction to consider an application to review the delegate’s decision to refuse the visas to the applicants. Its reasoning in reaching this conclusion was that jurisdiction was conferred on it by s.348 of the Act. However, this was in circumstances where an application for review is properly made under s.347 of the Act for review of an MRT-reviewable decision. Relevant to that definition is s.338(2)(d) of the Act.

7. The Tribunal concluded that it did not have jurisdiction in the following circumstances.  A criterion for the grant of the visa was that the applicant needed to be sponsored by an approved sponsor.  The Tribunal found that the sponsor’s application for such approval had been refused, and no review of this decision had been sought. 

8. In these circumstances, the Tribunal found that the application for review was not an MRT-reviewable decision when regard was had to s.338(2) of the Act. I cannot see any legal error in the Tribunal’s reasoning, or its conclusion. Nor, in the circumstances, is there any apparent error in the Tribunal’s conclusion that no other part of s.338 of the Act was enlivened to make the application for review an application in the nature of an MRT-reviewable decision.

9. The sole ground of the application to the Court as the Minister submits, is not clear. However, the list of the various sections of the Act, and Regulations, and the reference to the visa application made on 14 June 2013, would suggest that the complaint is that the application for the visa made on that date was not a valid application.

10. Thus, it would appear that the error asserted by the sole ground of the application is that the Tribunal was in error to find that it had no jurisdiction to review the delegate’s decision, given that no valid application for the visa had been made in the first place.  That is, in short, that the Tribunal should have found, presumably, that the delegate was in error in considering an application for visas, that was not a valid application. 

11. The ground makes reference to item 1223A of Schedule 1 to the Regulations. Amongst other things, the item requires that the application for the visa must specify, in effect, the sponsor of the visa applicant.

12. The application form for the visa is reproduced in the Court Book. The Minister accepted that the form itself, at [38] at Part B (at CB8), does not identify any sponsor. The Minister, however, argued that this does not, on its own, make the application for the visas not valid. The Minister submitted that there was substantial compliance with the requirement, that is, the requirement as expressed in, and through, the application form. In argument, the Minister relies on s.25 of the Acts Interpretation Act 1901 (Cth). In essence, where an Act prescribes a form, then strict compliance with the requirements of that form is not required. Substantial compliance is sufficient.

13. I accept the Minister’s submission that this applies to regulatory requirements as if they were part of the Act. I note the Minister’s references to s.46(1) of the Acts Interpretation Act 1901 (Cth). I agree with the Minister’s submission that substantial compliance is to be assessed by reference to the purpose of the form in eliciting the identity of the sponsor (Bal v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 189; (2002) 189 ALR 566 at [37] and SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91).

14. It is the case, as the Minister submits, that in the current circumstances, one of the purposes of the visa application form was to enable the delegate to identify any sponsor, and to find whether the applicant did have an approved sponsor.  I note that after all, having an approved sponsor was a critical element to the successful outcome of the application for the visas.

15. The evidence before the Court reveals that, notwithstanding any omission in the application form, that on the same day an application was made for approval by the sponsor (the form Nominating Overseas Employees to Work Temporarily in Australia at CB 134 to CB 135). In this regard, the delegate noted the following:

    “A nomination application was lodged 14/06/2013 by the primary applicant’s prospective employer, OZ HALAL PTY LTD for the occupation of ANZSCO 351221 Butcher or Smallgoods Maker.”

16. The delegate’s decision record continues “[t]he applicant lodged a visa application on the same date for the occupation of ANZSCO 351221 Butcher or Smallgoods Maker” (at CB [82]).

17. I am satisfied on the evidence that both the application for the visa and the application for approval as a sponsor, were made to the Minister’s department on the same date. In addition to the above, on 18 June 2013, the Minister’s department sent an acknowledgement of the application to the applicant which identified “Oz Halal” as the sponsor (CB 53). 

18. I find that there was substantial compliance with the application form. The application for the visa was therefore valid. The application for declaratory relief should be refused.

19. As there is no error in the Tribunal’s determination that it had no jurisdiction, the relief sought in the nature of the constitutional writs should be refused.

20. Further, as the Minister submits, even if the application for the visa were not valid, the relief should be refused because in the absence of a sponsor on the form, and in the absence of substantial compliance, the application for the visa could not be considered by the delegate. This in turn would provide an alternate basis to find the Tribunal had no jurisdiction.

Conclusion

1. I will make the order dismissing the application to the Court.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 13 August 2015