Aulakh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 683

FEDERAL CIRCUIT COURT OF AUSTRALIA

Aulakh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 683

File number(s):

SYG 3510 of 2018

Judgment of:

JUDGE DRIVER

Date of judgment:

7 April 2021

Catchwords:

MIGRATION – review of a decision of the Administrative Appeals Tribunal finding that it lacked jurisdiction due to the absence of an approved sponsor – Tribunal finding correct.

Legislation:

Migration Act 1958 (Cth), ss 5, 140E, 140GA, 140GB, 338, 347

Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018 (Cth)

Migration Regulations 1994 (Cth)

Number of paragraphs:

30

Date of hearing:

7 April 2021

Place:

Sydney

The First Applicant:

Appeared in person, via telephone

Solicitor for the Respondents:

Mr J Tay of HWL Ebsworth, via telephone

ORDERS

SYG 3510 of 2018

BETWEEN:

JASDEEP SINGH AULAKH

First Applicant

GURLEEN KAUR AULAKH

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	7 APRIL 2021

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The application is dismissed.

3.The applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.

REASONS FOR JUDGMENT
(revised from transcript)

JUDGE DRIVER

Introduction and background

1. The first applicant, Mr Aulakh, seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 8 November 2018.  The Tribunal found it did not have jurisdiction in the matter.  There are two applicants who are a husband and wife.  The primary applicant is Mr Aulakh and his wife applied as a member of his family group[1].  Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 31 March 2021, which I adopt.

   [1] CourtBook (CB) 3

   Relevant factual background

2. On 14 September 2016, Mr Aulakh, a citizen of India, applied onshore for a Temporary Work (Skilled) (Class UC) (subclass 457) visa (Subclass 457 visa)[2].  Mr Aulakh stated that Norther Beaches Taxi Services Pty Ltd (prospective employer) was his sponsoring employer for the purposes of the visa application[3].

   [2] CB 1-13

   [3] CB 8-9

3. On 9 November 2016, the Minister’s Department (Minister) requested Mr Aulakh to provide further information in relation to his Subclass 457 visa application[4], including, relevantly, that he provide evidence of a job offer from his sponsoring employer[5].

   [4] CB 16-18

   [5] CB 21

4. On 9 November 2016, the Department wrote to Mr Aulakh and invited him to comment on adverse information relevant to his visa application[6].  The letter described that Mr Aulakh's prospective employer did not have an approved nomination which was a criterion for the grant of a Subclass 457 visa, and as a result, Mr Aulakh's visa application was unlikely to be successful.  The Department invited Mr Aulakh to either comment on his intentions regarding his visa application, withdraw his application, or provide any other comment or information which Mr Aulakh thought was relevant to the adverse information.  Mr Aulakh did not respond to the Department's invitation to comment. 

   [6] CB 34-36

5. On 17 January 2017, the Minister’s delegate (delegate) refused the application for a Subclass 457 visa[7]. In the reasons for decision, the delegate reproduced the requirements of cl 457.223(4) of the Migration Regulations 1994 (Cth) (Regulations), which required that in order to satisfy the criteria for the grant of the visa, Mr Aulakh must be the subject of a nomination which had been approved under s 140GB of the Migration Act 1958 (Cth) (Migration Act)[8]. The delegate described that Mr Aulakh's prospective employer did not have an approved nomination and therefore Mr Aulakh did not satisfy the criteria in clause 457.223(4)(a) of the Regulations. Accordingly, the delegate refused Mr Aulakh's application for a Subclass 457 visa.

   [7] CB 42-45

   [8] clause 457.223(4)(a) of the Regulations

   Tribunal decision

6. On 3 February 2017, Mr Aulakh applied to the Tribunal for review of the delegate's decision[9].

   [9] CB 55-56

7. On 19 October 2018, the Tribunal wrote to the applicants, by letter sent to the applicants' representative's email address as provided in the review application form[10], and invited the applicants to comment on the validity of the application for review (invitation to comment)[11]. The invitation to comment stated that at the time Mr Aulakh applied for review by the Tribunal, Mr Aulakh was not identified in a nomination under s 140GB of the Migration Act that was either approved or pending, nor was there a valid or pending application for review of any decision not to approve Mr Aulakh's sponsor under s 140E, or of any decision not to approve the nomination under s 140GA of the Migration Act. The applicants were invited to comment on this information by 2 November 2018. The applicants did not respond to the Tribunal's invitation to comment.

   [10] CB 56 and 70

   [11] CB 71

8. On 8 November 2020, the Tribunal determined that it did not have jurisdiction to review Mr Aulakh's application[12]. In the reasons for decision, the Tribunal stated that a decision to refuse a Subclass 457 visa was a reviewable decision under Part 5 of the Migration Act if, relevantly, at the time of the review application[13]:

   (a)Mr Aulakh was sponsored or nominated as required by a criterion for the grant of the visa; or

   (b)an application to review a decision not to approve the sponsor had been made and was pending.

   [12] CB 76-77

   [13] CB 77 at [4]; see s 338(2)(d) of the Migrating Act and reg 4.02(1A) of the Regulations.

9. The Tribunal found that at the time of the review application, Mr Aulakh was not sponsored or nominated by an approved sponsor and accordingly, the delegate's decision was not a reviewable decision[14].  The Tribunal concluded that the review application was not properly made and therefore the Tribunal had no jurisdiction in the matter[15]. 

   [14] CB 77 at [5] and [7]

   [15] CB 77 at [7]-[8]

   The current proceedings

10. These proceedings began with a show cause application filed on 13 December 2018.  At that time, Mr Aulakh was legally represented but his solicitor subsequently withdrew from the record in accordance with the rules of court.  Mr Aulakh continues to rely upon that application which contains the following grounds: 

    Ground 1

    The Administrative Appeals Tribunal (AAT) made an error in deciding that that they do not have the jurisdiction to review the Department of Home Affairs to refuse the applicant’s application for a Temporary Business Entry (Class UC) visa.

    Particulars

    The AAT decided that they do not have jurisdiction to review my application because I did not satisfy subclause 457.223(4)(a) of the Migration Regulations. My employer applied for my sponsorship and nomination. My occupation was approved under section 140GB of the Act.

    Ground 2

    The Administrative Appeals Tribunal did not take all the relevant information into account.

    Particulars

    The Administrative Appeals Tribunal did not take into account that my sponsorship and nomination was approved for the position that I applied for.

    Ground 3

    The Tribunal had jurisdiction to review my application under the Act

    Particulars

    The application was properly made under sections 347 and 412 of the Act.

11. The application is supported by an affidavit by Mr Aulakh which I received.  I also have before me as evidence the affidavit of Claire Dunn made on 31 March 2021.  Annexed to that affidavit are documents relating to the sponsorship refusal relating to Norther Beaches Taxi Services.  In addition, I received the court book filed on 15 March 2019. 

12. Only the Minister filed written submissions in advance of today’s hearing.  I invited oral submissions from Mr Aulakh this afternoon.  He told me that his migration agent had failed to tell him about the significance of the sponsorship application and he was unaware that the refusal of sponsorship would be an obstacle to the approval of his visa.  That may well be so but any shortcomings in the service provided by the agent could not affect the Tribunal decision because it lacked jurisdiction.  In other words, the Tribunal had no jurisdiction which could have been impeded by any misbehaviour by the agent. 

13. Mr Aulakh has made further inquiries as to the options available to him and he understands that it would be necessary for him to make any fresh visa application offshore.  At present, however, he is unable to travel overseas due to COVID-19 health restrictions.  That is a matter which Mr Aulakh could raise with the Department for the Minister’s consideration if the Minister was so minded.  Mr Aulakh told me that he also has a baby daughter, now nine months old and presumably born in this country, whose circumstances he would also like to have considered.  Again, that is a matter beyond the scope of this proceeding but is a further factor that might be considered by the Minister. 

14. There is no doubt in my mind as to the correctness of the Tribunal’s decision.  The Minister’s submissions deal with the grounds of review raised.  I agree with those submissions and adopt them.

    Grounds of Review

15. As noted above, by an application to show cause filed in this Court on 12 December 2018, the Applicants rely on the following three grounds:

    Ground 1

    The Administrative Appeals Tribunal (AAT) made an error in deciding that they do not have the jurisdiction to review the Department of Home Affairs decision to refuse the applicant's application for a Temporary Business Entry (Class UC) visa.

    Particulars

    The AAT decided that they do not have jurisdiction to review my application because I did not satisfy subclass 457.223(4)(a) of the Migration Regulations. My employer applied for my sponsorship and nomination. My occupation was approved under section 140GB of the Act.

    Ground 2

    The Administrative Appeals Tribunal did not take all the relevant information into account.

    Particulars

    The Administrative Appeals Tribunal did not take into account that my sponsorship and nomination was approved for the position that I applied for.

    Ground 3

    The Tribunal had jurisdiction to review my application under the Act.

    Particulars

    The application was properly made under sections 347 and 412 of the Act.

16. As also noted above the applicants rely on an affidavit of Mr Aulakh of 12 December 2018, in which Mr Aulakh deposes that:

    (a)Mr Aulakh's prospective employer applied for sponsorship and nomination for him; and

    (b)this was done before Mr Aulakh applied for the Subclass 457 visa.

    Grounds 1 to 3

17. All of the applicants' grounds centre on the contention that the Tribunal wrongly decided that it did not have jurisdiction because there was, in spite of what was found by the delegate and Tribunal, an approved nomination in place for Mr Aulakh. 

18. As identified by the Tribunal, a Part 5 decision is a reviewable decision only if it meets certain criteria contained in s 338 of the Migration Act[16]. 

    [16] CB 77 at [3]

19. The delegate's decision was made on 17 January 2017 and the Tribunal was required to consider s 338 of the Migration Act as it stood at this time[17]. 

    [17] see s 5 of the Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018 (Cth)

20. Section 338(2) of the Migration Act, as at the time of the delegate's decision, was as follows:

    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.

    …

21. It suffices to note that paragraphs (a), (b) and (c) of s 338(2) were met because:

    (a)a Subclass 457 visa can be granted while an applicant is in Australia: clause 1223A(3)(aa) in Schedule 1 of the Regulations; and

    (b)The applicants were resident in Australia in NSW at the time the application was made[18]. 

    [18] CB 4

22. Regulation 4.02(1A) provides that a Subclass 457 visa is a visa prescribed for the purposes of s 338(2)(d) of the Migration Act. The relevant question for the Tribunal was whether s 338(2)(d) of the Migration Act was met, so that the delegate's decision was a Part 5 reviewable decision which could be varied by the Tribunal[19]. 

    [19] s 347 of the Migration Act

23. Mr Aulakh claims in his grounds (and in his Subclass 457 visa application) that he was the subject of an approved nomination by Norther Beaches Taxi Service Pty Ltd. If this was the case, this would be sufficient to meet s 338(2)(d) of the Migration Act by virtue of s 338(2)(d)(i). However, Mr Aulakh's affidavit evidence does not rise so high, claiming merely that his sponsor "applied" for sponsorship and nomination of him.

24. The Department and Tribunal both requested Mr Aulakh provide evidence that he was subject to an approved nomination[20].  The applicants did not respond to those requests.

    [20] CB 34-36 and 71

25. The Minister also notes that the applicants were on notice, at least by the time of the delegate's decision, that it was a requirement for the grant of a Subclass 457 visa that Mr Aulakh be subject to approved sponsorship.  The applicants provided a copy of the delegate's decision to the Tribunal with the application for review[21].  The applicants could have sought to put evidence of an approved sponsorship or pending review of a sponsorship decision to the Tribunal for its consideration, but did not do so.  In the absence of such evidence, the Tribunal's conclusion that Mr Aulakh was not subject to an approved sponsorship or nomination was a finding open to it on the material before it.  

    [21] CB 56 and 61

26. Further, the Tribunal's finding that Mr Aulakh was not the subject of an approved nomination was the correct decision, in light of the fact that Mr Aulakh's prospective employer's application to be a Standard Business Sponsor was refused on 9 November 2016[22]. As such, Mr Aulakh could not have been the subject of an approved nomination by his prospective employer at the time of applying for review, as required by s 338(2)(d)(i) of the Migration Act. Nor is there any evidence that the decision to refuse Mr Aulakh’s prospective employer's application for sponsorship was pending review, as required by s 338(2)(d)(ii) of the Migration Act.

    [22] see annexure CD1 to the Affidavit of Ms Dunn affirmed on 31 March 2021

27. In the absence of the application for review meeting the criteria in s 338(2)(d) of the Migration Act, the delegate's decision was not reviewable by the Tribunal. Accordingly, no error is present in the Tribunal's finding that it did not have jurisdiction to determine the application before it, as it was not validly made under s 347 of the Migration Act.

    CONCLUSION

28. I conclude that Mr Aulakh is unable to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order. 

29. In consequence of the dismissal of the application, the Minister seeks an order for costs.  The Minister seeks the amount of $5,600.  Mr Aulakh did not wish to be heard on costs. 

30. I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       15 April 2021