Allah Wala v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 874
•16 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Allah Wala v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 874
File number(s): MLG 8 of 2019 Judgment of: JUDGE CUTHBERTSON Date of judgment: 16 September 2024 Catchwords: MIGRATION – Subclass 457 (Temporary Work (Skilled)) visa – review of Administrative Appeals Tribunal decision – no approved nomination at the time the applicant made application for merits review – whether the decision to refuse the visa application was a Part 5-reviewable decision pursuant to s 338 of the Migration Act 1958 (Cth) – whether the Tribunal had jurisdiction to undertake a merits review of the visa refusal decision – whether the applicant had standing to challenge decisions relating to the nominator’s application for approval as a standard business sponsor – futility – application dismissed Legislation: Migration Act 1958 (Cth) ss 5(1), 65, 140E, 140GB, 338, 347, 359(1), 477, 500
Migration Regulations 1994 (Cth) regs 2.59(f), 2.72(1), 4.02(1A), 4.02(4)(a)-(b), 4.02(5); cl 457.233 of Sch 2; cll 6702(2)(c), 6704(1), (3), (8), (13) of Sch 13
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Cases cited: Ahmad v Minister for Immigration and Border Protection
(2015) 237 FCR 365; [2015] FCAFC 182
Dyankov v Minister for Immigration and Border Protection (2017) 251 FCR 93; [2017] FCAFC 81Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Mora v Minister for Immigration and Border Protection [2018] FCA 1819
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2023) 299 FCR 464; [2023] FCAFC 123Division: Division 2 General Federal Law Number of paragraphs: 69 Date of last submission/s: 19 August 2024 Date of hearing: 19 August 2024 Place: Melbourne Applicant: In person Counsel for the First Respondent: Mr R O’Shannessy Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 8 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TAYYAB ABDUR REHMAN ALLAH WALA
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS & ANOR
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
16 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application filed on 3 January 2019 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CUTHBERTSON
INTRODUCTION
On 3 January 2019 the applicant filed an application pursuant to s 476 of the Migration Act 1958 (the Act) seeking judicial review of a decision of the second respondent (the Tribunal) made on 18 December 2018. By that decision, the Tribunal determined it had no jurisdiction to review a decision of the delegate of the first respondent (the Minister) to refuse the applicant a Temporary Work (Skilled) (subclass 457) visa (visa) under s 65 of the Act. The Minister opposes the application. For the reasons set out below, the application is dismissed.
BACKGROUND
The applicant, who is a citizen of Pakistan, applied for the visa on 16 December 2017 (Court Book (CB) 1-16). The application form detailed that the applicant’s sponsoring employer was LED Solutions Australia Pty Ltd (LED) (CB 7). The application form also advised the applicant was represented by a migration agent who was authorised to receive written correspondence on his behalf (CB 4).
On 30 January 2018, the then-named Department of Immigration and Border Protection (Department) wrote to the applicant via his migration agent to advise that in the course of conducting checks in respect of his application, it identified the applicant’s prospective employer LED did not have an approved nomination for him at that time. The applicant was advised that an approved nomination was an essential criterion for the grant of the visa. The applicant was given an opportunity to provide further information including as to his intentions regarding his application, evidence that he was the subject of an approved nomination or any other information he thought relevant in response to this issue. He was also advised of his option to withdraw his application. He was provided 28 days in which to provide his response (CB 24-26). Also on 30 January 2018, the Department sent the applicant a request for further information in relation to the application including evidence of police checks, qualifications, work experience, English language ability and health checks. That information was also required to be provided within 28 days (CB 28-37).
No information was provided by the applicant or his migration agent in response to either of those requests (CB 45). On 12 February 2018, the applicant’s migration agent filed an “Appointment or withdrawal of an authorised recipient (including migration agent)” form with the Department for the purpose of advising their appointment as the authorised recipient had ended (CB 38).
On 8 October 2018, the applicant’s visa application was refused by a delegate of the Minister (delegate). The basis of the refusal was that the applicant did not meet the criterion under cl 457.223(4)(a)(i) of Schedule 2 to the Migration Regulations 1994 (the Regulations), namely that he was not the subject of an approved nomination under s 140GB of the Act at the time of the decision (the delegate’s decision) (CB 44-46).
The applicant filed an application for review of the delegate’s decision with the Tribunal on 22 October 2018 (CB 50-58). He nominated a registered migration agent as his representative (CB 51). On 25 October 2018, the Tribunal wrote to the applicant via his representative advising of its view that the application for review was invalid. It identified this was the case because at the time the applicant applied for review, he was not identified in a nomination under s 140GB of the Act that was either approved or pending, nor was there a valid and pending application for review before the Tribunal of a decision not to approve the sponsor under s 140E, or of a decision not to approve the nomination under s 140GB of the Act. The applicant was advised that this was a matter that must be determined by a Member. The applicant was invited to provide comment as to whether a valid application had been made and advised that any comments would be referred to a Member to make a decision on the application. The applicant was also advised that if the Member determined he had not made a valid application, he would be provided a written statement of decision and reasons (CB 62).
On 8 November 2018, the applicant’s representative provided a submission to the Tribunal on the applicant’s behalf. It sought a delay of the Tribunal’s determination of the application (either with respect to jurisdiction or its substance) pending pursuit of measures to address what were described as irregularities in the Department’s notification of the adverse outcome of LED’s sponsorship application (140E refusal decision). The applicant’s representative indicated they were requesting the Department re-notify LED of its decision with a view to pursuing a further review (CB 64-66). LED had filed an application to review the 140E refusal decision with the Tribunal on 14 February 2018. On 24 September 2018, the Tribunal (differently constituted) had determined it did not have jurisdiction to conduct that review (140E review decision) (CB 47-49). LED’s complaint apparently was to the effect that it had been notified by the delegate of its right to seek a review of the 140E refusal decision to the Tribunal in circumstances where it did not have such rights. It argued that the notification of the 140E refusal decision therefore did not comply with the Act (CB 64-65).
On 3 December 2018, the Tribunal emailed the Department referring to LED’s request made on 29 October 2018 that the Department re-notify its 140E refusal decision. The Tribunal sought an update on the status of that request (CB 67). On 14 December 2018, the Department advised it would not re-notify LED of its 140E refusal decision as, in its view, the applicant had review rights and had been effectively notified (CB 69-71).
On 18 December 2018, the Tribunal determined that it did not have jurisdiction in respect of the matter (CB 79-80). On 3 January 2019, the applicant filed an application with this court seeking a review of the Tribunal’s decision (CB 81-87).
THE TRIBUNAL’S DECISION
The Tribunal noted that a decision to refuse to grant a Subclass 457 visa is a reviewable decision under Part 5 of the Act in the circumstances set out in s 338(2) of the Act and reg 4.02(1A) of the Regulations. Relevantly to the applicant’s application for review which had been made in respect of a visa he applied for while he was in the migration zone and where it was a criterion for the grant of the visa that the applicant be sponsored by an approved sponsor, s 338(2)(d) required that:
(1)the visa applicant is identified in a nomination under s 140GB by an approved sponsor. This includes a nomination application that has not yet been determined, or an approved nomination, but does not include a nomination that has been refused with no review pending of that refusal, or a nomination that has expired (s 338(2)(d)(i)); or
(2)there is a pending application for review of a decision not to approve the standard business sponsor under s 140E, or a pending review of a decision not to approve the nomination under s 140GB (s 338(2)(d)(ii)).
(CB 79, [2]-[5])
The Tribunal noted it had written to the applicant in the terms referred to at [6] above. It referred to the response made on the applicant’s behalf which is referred to at [7] above. The Tribunal noted the representative’s argument that the outcome of the process with the Department may materially affect the applicant’s prospects of success regarding his visa application. It had been asserted that the re-notification “would create the real possibility of a successful review via other channels, with subsequent potential impact on the final determination” of the applicant’s visa application (CB 80, [7]).
The Tribunal noted it had delayed proceeding with the matter until the issue regarding re-notification had been dealt with by the Department (CB 80, [8]). It referred to its contact with the Department regarding the status of the re-notification request made by the representative in relation to the 140E refusal decision and of the response it received referred to at [8] above (CB 80, [9]-[10]).
The Tribunal determined that on the material before it, at the time the review application was made on 22 October 2018, the applicant was not identified in a nomination under s 140GB by an approved sponsor as required by s 338(2)(d)(i) of the Act. Further, the Tribunal identified there was no pending application for review of a decision not to approve a standard business sponsor under s 140E or a nomination under s 140GB (as required by s 338(2)(d)(ii) of the Act). Consequently, the Tribunal found that the applicant could not meet the requirements of s 338(2)(d) of the Act meaning that the delegate’s decision was not a reviewable decision. As there was no reviewable decision, it followed that the application for review was not properly made and the Tribunal did not have jurisdiction in the matter (CB 80, [11]-[12]).
THE APPLICATION FOR REVIEW IN THIS COURT
The application for judicial review filed on 3 January 2019 cites five grounds. They are lengthy and difficult to follow. It is necessary to set them out in full as a consequence. They are:
1. Second Respondent failing to find that the Applicant’s proposed Sponsor’s application for approval as a Sponsor was erroneously rejected by First Respondent (rendering such rejection a nullity) without required consideration of Regulations 2.59(d)-(f) of the Migration Regulations 1994 (Commonwealth) [“the Regulations”], because the proposed Sponsor was conducting a business operating in Australia and consequently erroneously finding that the Applicant failed to meet the criteria specified in Clause 457.223(4)(a) of Schedule 2 to the Regulations
Particulars:
First Respondent’s rejection of the Applicant’s proposed Sponsor’s application for approval as a Sponsor conducting a business operating in Australia without required consideration of Regulations 2.59(d)-(f) of the Regulations was erroneous (rendering such rejection a nullity); because:
(a) Such consideration was required to render the rejection reviewable by the Second Respondent, in accordance with the intention of Parliament as manifested in the Explanatory No: 115 of 2009 ) and the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, the note to Regulation 4.02(4B) of the Migration Regulations 1994 (Commonwealth) and the First Respondent’s notification of rejection of the application for approval as a Sponsor
(b) Rejection of the Applicant’s proposed Sponsor’s application for approval as a Sponsor was thus erroneous (rendering such rejection a nullity) by virtue of failing to address a relevant criteria for approval, failing to take a relevant consideration into account rejection of the application for a purpose other than that for which power to refuse was conferred, inflexible application of policy and/ or unreasonableness or irrationality
2. Failing to take a relevant consideration into account; ie: erroneous rejection of the Applicant’s proposed Sponsor’s application for approval as a Sponsor conducting a business operating in Australia without required consideration of Regulations 2.59(d)-(f) of the Migration Regulations 1994 (Commonwealth) [“the Regulations”] (rendering such rejection a nullity); as particularised above in First Ground of Review
3.(Alternatively to First and Second Grounds of Review particularised above): Second Respondent erroneously finding that the Applicant failed to meet the criteria specified in Clause 457.223(4)(a) of Schedule 2 to the Regulations by virtue of misapplication of the Judgment in Ahmad v MIBP [2015] FCAFC 182, which is in fact consistent with finding such criteria met even when an application for Sponsorship of the Visa Applicant has been rejected
4. Denial of natural justice by virtue of the Second Respondent failing to provide the Applicant with a further opportunity to address the First Respondent’s maintenance of the validity of its notification of rejection of the Applicant’s proposed Sponsor’s application for approval and associated maintenance of view of the Second Respondent’s jurisdiction contradicting Second Respondent’s own view
Particulars:
Further opportunity to be heard on the substantive content of the notification, which the Second Respondent apparently considers wrong, would have enabled the Applicant an opportunity to make submissions in support of the contentions outlined in the other Grounds of Review specified in this Application
5. Unreasonableness or Irrationality as manifested in the jurisdictional errors outlined in Grounds of Review 1-4 above
On 3 April 2024, orders were made by a Registrar of this Court in anticipation of the matter being listed for hearing. Those orders included that the applicant file and serve on or before 17 April 2024 any amended application with proper particulars of the grounds of the application, written submissions and any additional evidence on which he seeks to rely. No further materials were filed by the applicant in accordance with those orders.
The Minister filed written submissions on 24 April 2024. The Minister also filed an affidavit setting out a screenshot of the Department’s computer database “Integrated Client Services Environment” (ICSE) relating to the nomination decision concerning the applicant.
HEARING ON 19 AUGUST 2024
The application came before me for hearing on 19 August 2024. The applicant was unrepresented. Mr O’Shannessy appeared for the Minister. I inquired whether the applicant had received the Minister’s submissions and a copy of the affidavit filed on 24 April 2024. After some discussion and a search of his inbox, the applicant confirmed he had received both documents but had not read them. I stood the matter down to give him an opportunity to read the submissions and affidavit before addressing the Court.
The materials before the Court in respect of this application are the applicant’s application for review dated 3 January 2019, a Court Book filed on 2 December 2020 (marked Exhibit R1), an affidavit of Liam Dennis affirmed on 24 April 2024 (read and marked Exhibit R2) (the Dennis affidavit) and a written outline of submissions from the Minister dated 24 April 2024. The applicant did not object to the Dennis affidavit being tendered and taken as read.
The grounds set out in the application are complex. It was apparent that the applicant had not drafted them, was not familiar with them and was unable to assist the Court to understand them. Notably, the grounds do not appear to engage with the decision actually made by the Tribunal, that is that the delegate’s decision was not a Part 5-reviewable decision.
The first two grounds appear to seek to look behind the 140E refusal decision and the 140E review decision. Ground 1 asserts that the Tribunal erred by failing to find the 140E refusal decision and the subsequent finding that the applicant did not meet the criteria in cl 457.223(4)(a) was erroneous. It is not clear which decision of the Tribunal is being impugned: the 140E review decision, or the decision which is apparently the subject of the application to this Court, namely the Tribunal decision of 18 December 2018. The particulars of that ground are focussed on the 140E refusal decision which suggests the ground concerns the 140E review decision. Similarly, it is unclear on the face of ground 2 if it is impugning a decision of the Tribunal at all, and, if so, which one.
The third ground alleges the Tribunal misapplied the judgment in Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365; [2015] FCAFC 182 when erroneously finding that that the applicant failed to meet the criteria in cl 457.223(4)(a) as an alternative to the first and second grounds. This ground is difficult to follow because the Tribunal made no finding as to whether the applicant satisfied the criteria in cl 457.223(4)(a). The Tribunal in fact held it had no jurisdiction to undertake the review including any assessment of the applicant’s circumstances in the context of the visa criteria. Similarly, the Tribunal’s 140E review decision did not consider the applicant’s visa application at all, let alone whether he met the cl 457.223(4) criteria.
The fourth ground alleges a denial of natural justice on the part of the Tribunal by failing to afford the applicant a further opportunity to address it in respect of the Minister’s maintenance of the validity of the notice it provided to LED in respect of the 140E refusal decision. The particulars allege this deprived the applicant of an opportunity to make submissions as to the other contentions set out in the grounds of review.
The fifth ground alleges unreasonableness or irrationality manifested by the jurisdictional errors alleged in the other grounds of review. It is not clear from this ground which of the decisions is alleged to be affected by such error.
Noting the applicant was self-represented, I explained that the Court’s role was limited to examining the decision which is the subject of the application, namely the decision of the Tribunal that it did not have jurisdiction to consider the applicant’s application for review of the delegate’s decision. I explained that the Court’s role was to decide whether the Tribunal made a serious legal error when considering the applicant’s application and the question of jurisdiction. I also explained that I was not able to give the applicant a visa.
The applicant’s submissions
The applicant explained that LED filed an application to become a sponsor in December 2017 but that the application was rejected in January 2018 without being provided a chance to submit further information. He stated that documents which covered what was required for LED to obtain approval were ready and could have been provided. His own application was also rejected. It was this problem at the very beginning of the process that was the source of all subsequent problems. I understood that these submissions were directed at the identifying the errors at the heart of grounds one and two of the application.
I asked the applicant questions about the third ground alleging misapplication of the decision of Ahmad. I directed the applicant to the criteria set out in s 338(2) of the Act which must be met for a decision to constitute a Part 5-reviewable decision within the meaning of the Act. I asked the applicant if he could identify any error in the Tribunal’s approach to the determination of that issue. He did not identify that he was sponsored by an approved sponsor at the time his application to review the decision to refuse the visa was made. He also did not identify that an application for review of a decision not to approve the sponsor had been made and was pending at the time his own application to review the decision to refuse the visa was made.
As to the allegation that he was denied natural justice when the Tribunal proceeded to determine the question of jurisdiction without providing him a further opportunity to address the Minister’s maintenance of the validity of the notification of the 140E refusal decision, the applicant repeated that he and LED were denied an opportunity to submit their documents. I understood that he was referring in this context to the documents that established LED met the sponsorship requirements. The applicant raised the same issue in respect of the fifth ground of review.
The Minister’s submissions
The Minister submitted the Tribunal correctly identified that the criteria pursuant to s 338(2)(d) of the Act and reg 4.02(1A) of the Regulations must be satisfied so that a decision constitutes a Part 5-reviewable decision. The Tribunal had provided the applicant an opportunity to provide comment in respect of the jurisdictional issue it had identified and expressly considered the response it received. The Tribunal also made its own inquiries of the Department, receiving confirmation that the sponsor had not been re-notified of the sponsorship refusal decision.
As to grounds one and two, the Minister submitted they failed to appreciate the Tribunal had no jurisdiction to review the merits of the 140E refusal decision as the applicant had no standing to seek review of that decision. Only the sponsor has standing to seek review of the sponsorship decision: s 347(2)(d) of the Act and reg 4.02(5)(a) of the Regulations. Further, a differently constituted Tribunal had determined that the sponsorship decision was not a Part 5-reviewable decision as the delegate did not consider the criterion in reg 2.59(f), and reg 4.02(4A) therefore applied.
The Minister submitted ground three mischaracterised the Tribunal’s findings. It was noted that no part of the Tribunal decision considered whether the applicant met the criteria in cl 457.223(4)(a) of Sch 2 of the Regulations. The Tribunal correctly understood it had no power to consider the merits of the visa application. Instead, it found that s 338(2)(d) of the Act applied as it was a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor (CB 79, [4]). This was entirely consistent with the reasoning in Ahmad at [95]-[96].
The Minister submitted the complaint at ground four that the applicant was denied procedural fairness was also misconceived. It was submitted the Tribunal fulfilled its procedural fairness obligations by inviting the applicant to comment on the validity of his application and considering his response before proceeding to find it had no jurisdiction to conduct a review: SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940. Further, it was submitted there was no statutory or procedural fairness obligation requiring the Tribunal to provide another opportunity to comment on the Department’s view that it had validly notified LED of the sponsorship refusal decision, or its view that the sponsorship decision was a reviewable decision as those matters were irrelevant to the issue before the Tribunal which was whether the applicant met the s 338(2)(d) criteria.
In respect of ground five, the Minister submitted that no jurisdictional error had been identified in the previous four grounds nor could it be said that the Tribunal’s findings lacked an “evident and intelligible justification” citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76].
Finally, the Minister submitted that even if some error was established in the procedure adopted by the Tribunal, relief ought to be refused on the basis that it would be futile to remit the matter to the Tribunal. On 18 March 2018, the Regulations were amended by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (2018 amendments), removing subclass 457 from the class of skilled visas. Consequently, it is no longer possible for an employer to seek approval of a nomination to sponsor a prospective subclass 457 visa holder. The applicant was never the subject of an approved nomination. In the absence of any later nomination approval, the applicant could never be the subject of an approved nomination. If the matter was remitted to the Tribunal, the Minister submits it would be bound to affirm the decision under review as the applicant would be unable to meet cl 457.223(4)(a)(iii).
CONSIDERATION
Did the Tribunal fall into jurisdictional error in determining it did not have jurisdiction to review the delegate’s decision?
The grounds of review do not directly challenge the Tribunal’s finding that the delegate’s decision was not a Part 5-reviewable decision. It is, however, necessary to consider whether there was any error in the Tribunal’s approach to this question given that the applicant is unrepresented in these proceedings and its relevance to the resolution of the arguments raised by the parties.
The starting point for the determination of this issue is s 348 of the Act, which casts an obligation on the Tribunal to conduct a review of a Part 5-reviewable decision if an application is properly made for review under s 347 of the Act. The enlivening of the Tribunal’s jurisdiction in this context depends on the jurisdictional fact of whether the decision the subject of the application meets the description of a Part 5-reviewable decision: c.f SZQVV v Minister for Immigration and Citizenship [2012] FCA 871 at [55], per Greenwood J.
As at 22 October 2018 when the applicant applied to the Tribunal for review of the delegate’s decision, s 338 of the Act relevantly defined a Part 5-Reviewable decision as follows:
Section 338 Definition of Part 5 - reviewable decision
…
(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:
(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.
….
(9) A decision that is prescribed for the purposes of this subsection is a Part 5-reviewable decision.
Regulation 4.02(1A)(k) of the Regulations relevantly provided that a Subclass 457 (Temporary Work (Skilled)) visa was prescribed for the purposes of s 338(2)(d) of the Act. Further, regs 4.02(4)(a) and (b) provided that a decision under subsection 140E(1) of the Act to refuse a person’s application for approval as a sponsor and a decision under subsection 140GB(2) of the Act to refuse to approve a nomination were, for the purposes of s 338(9) of the Act, Part 5-reviewable decisions.
Clause 457.22 of Sch 2 to the Regulations set out the primary criteria to be satisfied at the time of decision in relation to the visa. It included cl 457.223 which relevantly provided:
457.223
(1) The applicant meets the requirements of subclause (2) or (4).
…
Standard business sponsorship
(4) 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…
In Ahmad, a Full Court of the Federal Court confirmed at [96] that being sponsored by an approved sponsor is a criterion to be satisfied for the grant of a visa pursuant to cl 457.223(1) of Sch 2 to the Regulations. As to the meaning of the words “sponsored by an approved sponsor” in s 338(2)(d)(i), the Full Court held at [97]-[98] it includes not only an “approved sponsor” as defined in s 5(1) of the Act (that is, a person approved by the Minister under s 140E) but also includes being identified in a nomination under s 140GB of the Act. The Full Court further held at [99] that the expression “decision not to approve the sponsor” in s 338(2)(d)(ii) includes both the approval of the sponsor under s 140E and the approval of the nomination under s 140GB. In Ahmad, an application for review of a decision to approve the sponsor had been made and was pending at the time the application to review the decision to refuse to grant the visa to Mr Ahmad was made. The Tribunal, accordingly, had jurisdiction to undertake Mr Ahmad’s review (see [100]-[101]).
In Dyankov v Minister for Immigration and Border Protection (2017) 251 FCR 93; [2017] FCAFC 81, a Full Court of the Federal Court at [40] considered whether “in circumstances where an approved sponsor has nominated an occupation in relation to an applicant or proposed applicant for a visa…, and the nomination has been refused, the visa applicant is ‘sponsored by an approved sponsor’ for the purposes of s 338(2)(d)(i) of the Act”. They observed, adopting the reasoning in Ahmad, that in circumstances where a nomination has been refused, and there is a pending review of that decision, the Tribunal has jurisdiction under s 338(2)(d)(ii). However, where a nomination under s 140GB has been refused, and there is no pending application to review that adverse decision, the Tribunal would not have jurisdiction as a putative applicant would not meet the description of “sponsored by an approved sponsor”, nor would they be able to satisfy the criteria for the visa: Dyankov at [53], [58]-[59].
By parity of reasoning with the decision in Dyankov, that is the situation which occurred in this case. Here, LED’s application to be an approved sponsor pursuant to s 140E had been rejected. Further, LED’s nomination of the applicant pursuant to s 140GB had been refused. LED had sought a merits review of the 140E refusal decision. The Tribunal found it did not have jurisdiction to consider LED’s application by a decision dated 24 September 2018. LED then sought to be re-notified of the delegate’s 140E refusal decision. There is, however, no evidence before this Court identifying that LED sought a review of the 140E review decision to this Court or elsewhere.
In my view, LED’s pursuit of re-notification of the 140E refusal decision is not capable of meeting the description of “an application for review of a decision not to approve a sponsor” within the meaning of s 338(2)(d)(ii) of the Act. The term “application to review” picks up the language of s 347 (“application for review of Part 5-reviewable decisions”) and is concerned with applications for merits review made to the Tribunal. Although LED had made an application for review of the decision not to approve it as a sponsor, that application had been determined and was no longer pending as at 22 October 2018. Further, the Liam Dennis affidavit establishes that the decision to refuse LED’s nomination of the applicant pursuant to s 140GB was refused on about 24 January 2016. There is no evidence before this Court establishing that LED sought a review of that adverse s 140GB decision to the Tribunal or elsewhere.
The applicant filed (or made) his application for review of the delegate’s decision on 22 October 2018. That is the critical date for the purposes of s 338(2)(d). As at that date, the applicant was not “sponsored by an approved sponsor”. Further, no application had been made to review the refusal of LED’s s 140GB application which occurred on 24 January 2016. Finally, although an application had been made by LED to review the 140E refusal decision, that application had been determined by the Tribunal on 24 September 2018 when it found it had no jurisdiction. No judicial review of that decision was subsequently made. Consequently, LED’s application for review of the decision not to approve it as a sponsor was not pending as at 22 October 2018. Section 338(2)(d)(ii) was not engaged.
The Tribunal’s decision of 18 December 2018 that it did not have jurisdiction to undertake a review of the delegate’s decision was plainly correct. To the extent that Ground 3 alleges that the Tribunal misapplied Ahmad, in my view it did not. Its decision as to the application of s 338(2)(d) in the circumstances of this case was consistent with the decisions of the Full Court of the Federal Court in both Ahmad and Dyankov. I am satisfied the Tribunal did not ask itself the wrong question or misapply the law in its approach to the question of its jurisdiction in this case. It did not fall into jurisdictional error of that kind when determining this issue.
I now turn to consider the grounds set out in the application.
Ground 1
I have interpreted this ground as alleging that the Tribunal failed to find that the 140E refusal decision was erroneous which in turn lead to an erroneous determination that the applicant did not meet the criteria in cl 457.223(4)(a) of Sch 2 to the Regulations. I have assumed that the latter determination is one alleged to have been made by the Minister (or their delegate) because, as I have already noted, the Tribunal made no assessment of whether the applicant met the relevant visa criteria.
There are a number of difficulties with this ground. First, the applicant did not have standing to seek a review of the 140E refusal decision. As at the date of his application to the Tribunal, a decision to reject an application to become an approved sponsor pursuant to s 140E(1) of the Act was a decision prescribed as a Part 5-reviewable decision: ss 338(1) and (9) of the Act and reg 4.02(4)(a) of the Regulations. Section 347(2)(d) of the Act further provided that an application for review covered by s 338(9) (as the 140E refusal decision was) may only be made by the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection. Regulation 4.02(5) of the Regulations, in turn, provided that for paragraph 347(2)(d) of the Act, an application for review of a decision mentioned in reg 4.02(4)(a) may only be made by a person to whose application the decision relates. The 140E refusal decision related to an application made by LED, not the applicant. Accordingly, only LED had standing to seek a review of the 140E refusal decision as it was the person to whose application the decision related.
Secondly, an application for review of the 140E refusal decision had been made by LED. That application had been determined by a differently constituted Tribunal albeit without considering the merits. The Tribunal is obliged to review a Part 5-reviewable decision where an application to review it was properly made under s 347: see s 348(1) of the Act. The 140E refusal decision did not otherwise meet the description of a decision that was amenable to review by the Tribunal: see ss 411 and 500 of the Act. The grounds do not suggest that the 140E review decision was incorrect or affected by jurisdictional error. The submission provided to the Tribunal by the applicant’s migration agent on 8 November 2018 proceeded on the “provisional assumption that the Tribunal’s finding as to its own jurisdiction was correct” (CB 65). Accordingly, there does not appear to be any basis upon which the Tribunal considering the applicant’s review application could have entertained a collateral challenge to the 140E review decision of the kind described in Mora v Minister for Immigration and Border Protection [2018] FCA 1819. In those circumstances, it is not open to conclude that the Tribunal had any jurisdiction at all to consider the applicant’s review application, let alone by reference to the merits of the 140E refusal decision.
Thirdly, the applicant does not have standing to make an application to this Court pursuant to s 477 of the Act in respect of the 140E review decision. Section 478(a) of the Act provides that where a migration decision is made on review under Part 5 of the Act, an application referred to in s 477 to review that decision may only be made by “the applicant in the review by the relevant Tribunal”. Alternatively, s 478(b) provides that an application referred to in s 477 may be made by the person “who is the subject of the decision”. In either case, the person with standing to make an application pursuant to s 477 in respect of the 140E review decision and the 140E refusal decision is LED. To the extent resolution of this ground requires this Court to review the 140E review decision or the 140E refusal decision, there has been no proper invocation of its jurisdiction (see Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2023) 299 FCR 464; [2023] FCAFC 123 at [73]-[101], per O’Sullivan J, Raper J agreeing at [205]).
Ground 1 is not made out.
Ground 2
As noted above, Ground 2 fails to clearly identify the decision alleged to be affected by error. Given its reference to Ground 1, it appears to be reframing the same error/s alleged in that ground. As a consequence, it is affected by the same difficulties.
For the reasons set out in respect of Ground 1, Ground 2 is also not made out.
Ground 3
The Minister’s submission that this ground mischaracterises the Tribunal’s findings may be accepted. As I have already observed at [21] above, the Tribunal made no finding as to whether the applicant satisfied the criteria in cl 457.223(4)(a). Similarly, the Tribunal’s 140E review decision did not consider the applicant’s visa application at all, let alone whether he met the cl 457.223(4) criteria. Further, contrary to the assertion in this ground, for the reasons set out at [35]-[43] above, the Tribunal correctly understood and applied the Full Court’s decision in Ahmad.
Ground 3 is not made out.
Ground 4
This ground concerns the complaint the applicant was denied a further opportunity to address the Tribunal once it had received information that the Minister considered its notification of the 140E refusal decision was valid and that the Tribunal had jurisdiction to review that decision. The particulars of the ground assert that if the further opportunity had been provided, it would have enabled the applicant to make submissions as outlined in the other grounds of review.
Section 359(1) of the Act provides that in conducting a review, “the Tribunal may get any information that it considers relevant”. It further provides that if the Tribunal gets such information, it must have regard to it when making the decision on the review. In this case, the Tribunal specifically invited the applicant to comment on the validity of his application in its letter of 25 October 2018. It is clear it had regard to the information provided by the applicant’s representative in response to that invitation having specifically referred to it in its decision (CB 80, [7]). The Tribunal, however, did not give the applicant an opportunity to respond to the information it later obtained from the Department referred to at [8] above.
This ground does not identify how the contentions set out in Grounds 1 to 3 would have altered the landscape as far as the question of the Tribunal’s jurisdiction is concerned. Leaving aside the issues already identified in respect of Grounds 1 and 2 which would have precluded the Tribunal from considering the merits of the 140E refusal decision or revisiting the 140E review decision on the applicant’s application, the contentions in Grounds 1 to 3 are not capable of establishing that the applicant satisfied the criteria in s 338(2)(d) of the Act. The applicant was not, as a matter of fact, sponsored by an approved sponsor at the time he made his application for merits review of the delegate’s decision. There was no pending application for review of the 140E refusal decision (or of the 140GB refusal decision).
Ultimately, I accept the Minister’s submission that the validity or otherwise of the notification of the 140E refusal decision was not relevant to the issue the Tribunal was required to determine pursuant to s 338(2)(d) of the Act. There was, consequently, no practical injustice flowing from any failure to afford the applicant an opportunity to respond to the Department’s views about the validity of its notification of the 140E refusal decision, or the jurisdiction of the Tribunal in respect of that decision. There was no submission or evidence that could be advanced to alter the fact that the applicant did not meet the criteria in s 338(2)(d) of the Act at the time he made his application for review of the delegate’s decision: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [38], per Gleeson CJ.
Ground 4 is not made out.
Ground 5
The success of Ground 5 relies on a conclusion that jurisdictional error is made out on the bases set out in grounds 1 to 4. I have concluded that no such jurisdictional error has been made out. Further, as already identified, the conclusion reached by the Tribunal as to jurisdiction was plainly correct. As such, I agree with the Minister’s submission that it could not be said that the Tribunal’s finding lacked an “evident and intelligible justification” as articulated in Li at [76], per Hayne, Kiefel and Bell JJ. I also agree for the reasons outlined above that it is not open to conclude that no rational or logical decision maker could arrive at the conclusion that the delegate’s decision did not constitute a Part 5-reviewable decision on the same evidence: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130], per Crennan and Bell JJ.
Ground 5 is not made out.
Conclusion regarding jurisdictional error
In my view, the Tribunal did not fall into jurisdictional error in any respect.
Futility
Given my conclusions regarding the absence of jurisdictional error, it is not necessary for me to consider the Minister’s arguments regarding futility. For the sake of completeness, I have considered the argument and have concluded it must be accepted.
The Minister’s argument centres on the 2018 amendments which removed Subclass 457 from the class of skilled visas with effect from 18 March 2018. The 2018 amendments also introduced a new Part 67 of Sch 13 to the Regulations. Clause 6702(2)(c) of Sch 13 to the Regulations provides that Part 457 of Sch 2 continues to apply in relation to an application for a visa made before the commencement day, despite its repeal.
The Regulations as amended by the 2018 amendments, however, apply to applications for approval as a standard business sponsor and nominations made on or from 18 March 2018. So much is explicitly stated in Part 67 of Sch 13 to the Regulations in particular respects (see, for example subcll 6704(1), (3), (8) and (13)).
In the applicant’s case, he is not currently the subject of a nomination approved pursuant to s 140GB of the Act. Under the Regulations as they currently apply, such a nomination may, relevantly, be made in respect of the holder of a 457 subclass visa (see reg 2.72(1)(b)(i)). The Regulations no longer provide that a nomination may be made in respect of a person making an application for a 457 subclass visa.
It follows that the granting of relief sought by the applicant would be futile. If the Tribunal were to consider the merits of the applicant’s visa application, it would be bound to find that the applicant does meet the essential criterion pursuant to cl 457.223(4) of the Regulations which must be satisfied at the time of the decision as he is not the subject of a nomination of an occupation which has been approved under s 140GB of the Act. As the applicant is not the holder of a 457 visa, he cannot be nominated for an occupation pursuant to reg 2.72(1) of the Regulations. There are no circumstances in which it would be possible for the applicant to satisfy all of the criteria for the grant of the visa.
CONCLUSION
For the above reasons, I dismiss the application as amended.
I will hear the parties as to costs.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 16 September 2024
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