Bagwe v Minister for Immigration
[2009] FMCA 225
•19 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAGWE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 225 |
| MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the decision of the delegate refusing the applicant a 457 visa was an MRT-reviewable decision – whether the Migration Review Tribunal had jurisdiction to review the delegate’s refusal – whether any delay in the delegate’s decision affected the validity of the decision of the Migration Review Tribunal – whether the applicant had an approved business sponsor at the time the application for review was lodged – whether there had been any refusal to approve a sponsor and review of the decision to review was pending at the time of the lodging of the applicant’s review application – whether the applicant met any of the criteria of s.338 of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.338; 338(2); 338(2)(a); 338(2)(b); 338(2)(c); 338(2)(d)(i); 338(2)(d)(ii); 474; pt.8 div.2 Migration Regulations 1994 (Cth), reg.4.02 |
| First Applicant: | NILESH VINAYAK BAGWE |
| Second Applicant: | NIKITA NILESH BAGWE |
| Third Applicant: | ADWAIT NILESH BAGWE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 2895 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 17 March 2009 |
| Date of last submission: | 17 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2009 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Counsel for the Respondent: | Ms T. Wong |
| Solicitors for the Respondent: | Ms N. Johnson, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2895 of 2008
| NILESH VINAYAK BAGWE |
First Applicant
| NIKITA NILESH BAGWE |
Second Applicant
| ADWAIT NILESH BAGWE |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 3 November 2008 and handed down that same day.
The first-named applicant, Nilesh Vinayak Bagwe, is a citizen of India (“the Applicant”) and is married to the second-named applicant, Nikita Nilesh Bagwe, also a citizen of India (“the Applicant Wife”). The third-named applicant, Adwait Nilesh Bagwe, is the son of the Applicant and the Applicant Wife (“the Applicant Son”).
On 22 February 2005, the Indian authorities issued to Interpol a notice stating that the Applicant was a fugitive wanted for prosecution.
On 24 July 2005, Freshco Fruit Market Pty Ltd lodged an application as a business sponsor in respect of the Applicant. On 24 October 2005, Freshco Fruit Market Pty Ltd was approved as a business sponsor.
On 20 December 2005, the applicants lodged, from within Australia, an application for a Long-Stay Temporary Business Visa through a registered migration agent with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
On 24 July 2007, the approval of Freshco Fruit Market Pty Ltd as a business sponsor lapsed.
On 17 June 2008, a delegate of the First Respondent (“the Delegate”) refused the applicants’ application for 457 visa on the basis that the Applicant did not satisfy mandatory criteria for the visa, in that the Applicant was not nominated by an employer who is an approved business sponsor.
On 18 July 2008, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
On 3 November 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 10 November 2008, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Tribunal’s review and decision
On 21 August 2008, the Tribunal wrote to the applicants informing them that the Tribunal did not appear to have power to consider the application for review because the Applicant was not sponsored by an approved sponsor at the time of the filing of the application for review.
The Tribunal’s letter stated that it could only review the Delegate’s refusal to grant the Applicant a subclass 457 visa if the Applicant’s proposed employer was approved as a sponsor at the time he lodged his application for review or the Applicant’s proposed employer was not approved as a sponsor and had sought review of that refusal and the decision was pending. The Tribunal’s letter informed the Applicant that because he was not approved by an approved sponsor when he lodged his application for review, the Tribunal did not have power to review his application.
The Tribunal’s letter invited the Applicant to provide written comments in response by 15 September 2008.
On 15 September 2008, the Applicant responded to the Tribunal’s letter.
The Tribunal noted in its decision record that the Applicant’s response to the Tribunal’s letter claimed that it was the fault of the applicants’ migration agent and the Department that he was in his then current situation. In particular, the Applicant stated that the Department had failed to process his visa application until after the sponsorship, approved on 24 October 2005 had lapsed.
Accordingly the Tribunal found it did not have jurisdiction to consider the applicants’ application.
The decision of the Tribunal is accurately summarised by counsel for First Respondent, Ms Wong, in her written submissions as follows:
“The Tribunal Decision
The Tribunal reviewed the relevant portions of the Act and the Migration Regulations 1994 (Cth) (the “Regulations”): CB 118. The Tribunal considered the written submission made by the Applicant to the Tribunal, but was not satisfied that it provided any basis for accepting the application for review because (CB 119):
“it does not alter the fact that at the time of lodgement of the application for review on 10 July 2008, the applicant was not sponsored by an approved sponsor, and that the proposed sponsor had not lodged an application for review with the Tribunal in respect of a decision not to approve the sponsorship.”
The Tribunal held that the delegate's decision of 17 June 2008 was therefore not an MRT-reviewable decision pursuant to s.338(2) of the Act and that the Tribunal therefore had no jurisdiction in respect of the matter: CB 119-120.”
The proceeding before this Court
The applicants were unrepresented before this Court, although had the assistance of a Hindi interpreter. The Applicant confirmed that he appeared for the Applicant Wife and the Applicant Son. Both the Applicant and the Applicant Wife appeared at the hearing before the Court. The Applicant Wife agreed that both her application and the application of the Applicant Son were dependent on the application of the Applicant.
On 1 December 2008, the Applicant attended a directions hearing before this Court. The Applicant was appointed as the litigation guardian of the Applicant Son. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. On that occasion it was explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake that goes to the jurisdiction of the Tribunal.
At the directions hearing, the Court provided to the applicants, headed in their own language, a contact list of providers of legal assistance and interpreting services. Further, at the directions hearing, the Court also provided to the applicants a copy of the applicable costs schedule of the Court and explained to the applicants the consequences that would follow for the applicants if a costs order was made against them. Namely, that whilst ever any costs order remains unpaid it becomes a debt to the Commonwealth of Australia. As such, the applicants’ ability to obtain any other type of visa or re-enter Australia may be significantly affected. The Court then confirmed with the applicants that they wished to continue with their application.
On 2 February 2009, the applicants filed an affidavit, sworn by the Applicant on 2 February 2009.
The Applicant confirmed that the applicants relied on the grounds contained in an application filed on 10 November 2008.
The grounds of the application are expressed to be as follows:
“It is not correct to say that my sponsor – FRESHCO was not an approved sponsor. FRESHCO was approved on 24 October 2005.
Department of Immigration – DIAC got my visa application on 20th December 2005. They took until 17 June 2008 to decide my visa application. Due to their unreasonable delays, FRESHCO had to apply again on 8th September 2008 to DIAC and this application is before DIAC now.”
The Applicant was invited to make submissions in support of each of the grounds and in support of the application generally. The Applicant confirmed that no written submissions had been filed in support of the application.
At the heart of the Applicant’s complaint was the delay by the Department in finalising his application for a 457 visa. In particular, the Applicant complained that his application for a 457 visa was originally lodged on 20 December 2005 and that no decision was made in respect of that application until 17 June 2008 when the application was refused. There was no evidence before the Court to explain any reasons for such delay. On its face, such a delay seems utterly without merit.
The chronology of relevant events is referred to above in these reasons in the Introduction.
For the sake of completeness below is a copy of the chronology helpfully provided by counsel for the First Respondent, Ms Wong:
CHRONOLOGY
| Date | Event | CB Ref |
| 22 Feb 2005 | Indian authorities issue notice to Interpol stating that Applicant is a fugitive wanted for prosecution (“Interpol notice”) | |
| 24 Oct 2005 | Freshco Fruit Market Pty Ltd approved as business sponsor | CB 25 |
| 17 Nov 2005 | Freshco Fruit Market Pty Ltd appoints Applicant as Quality Assurance Manager | CB 16 |
| 20 Dec 2005 | Applicants apply for Long-Stay Temporary Business Visa | CB 1 |
| 22 Mar 2006 | Barcelon, DIAC case manager sends email to Barden, DIAC Character section, requesting urgent advice regarding Interpol notice | |
| 21 Feb 2007 | Applicant sends letter to Apostol, DIAC case manager, requesting information regarding status of application | CB 57 |
| 1 Mar 2007 | Apostol, DIAC case manager, sends email to Applicant stating that application is still being assessed | CB 59 |
| 24 Apr 2007 | Apostol sends email to Applicant's migration agent, stating that Applicant should provide police clearances from AFP, India and any other countries in which the Applicant has resided for 12 months or more during the last 10 years | CB 60 |
| 28 June 2007 | Applicant provides police clearances to DIAC | CB 66-70 |
| 4 Jul 2007 | Broderick, DIAC Brisbane Character Assessment Unit, sends letter to Applicant, stating that application has been forwarded to the unit for an assessment as to whether he passes the character test | CB 71 |
| 14 May 2008 | Attorney General's department states that the Indian government has not presented a request for extradition of Applicant and that they are closing their file on the Applicant | |
| 14 May 2008 | Hall, DIAC Brisbane Character Assessment Unit, sends letter to Applicant stating that no consideration is being given to refusing his application on character grounds | CB 79 |
| 15 May 2008 | Beltran, DIAC Case manager, sends email to Applicant requesting new sponsorship application and new nomination application as previous applications have expired | CB 85 |
| 17 June 2008 | Delegate of Minister hands down decision refusing to grant visa to the Applicants | CB 88 |
| 17 June 2008 | Applicant sends email to DIAC requesting extension of time to submit his application | Ann. E to Affidavit of Applicant sworn 2 Feb 2009 |
| 10 July 2008 | Applicants file application for review of the decision of the Minister's delegate | CB 95 |
| 21 Aug 2008 | Tribunal sends letter to Applicants inviting Applicants to comment upon fact that Applicant was not sponsored by an approved sponsor at the time he lodged his application for review | CB 111 |
| 15 Sep 2008 | Applicant sends letter to Tribunal responding to invitation to comment | CB 113 |
| 3 Nov 2008 | Tribunal notifies Applicants of its determination that the application is ineligible for review | CB 116 |
It is apparent from the chronology that the approval of the Applicant’s business sponsor had lapsed on 24 June 2007, which was prior to the Delegate’s decision to refuse the Applicant a 457 visa.
A mandatory criterion of the Applicant’s 457 visa was that the Applicant was required to have been nominated by an employer who is an approved business sponsor. The Applicant did not meet that criterion and, accordingly, the Delegate was not satisfied that the requirements for the grant of any of the relevant visa subclasses were met and therefore refused the Applicant’s application for a Temporary Business Entry (Class UC) subclass 457 visa.
As stated above, by the time the Delegate refused the application, the approval of the Applicant’s sponsor had lapsed.
The Tribunal only has jurisdiction to review MRT-reviewable decisions. Section 338 of the Act provides an exhaustive list of those decisions which are MRT-reviewable decisions.
Relevantly, s.338(2) of the Act is as follows:
“(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.”
Regulation 4.02 of the Migration Regulations 1994 (Cth) prescribes that s.338 applies, relevantly, to a standard business sponsor, as in this case.
However, in order for the Delegate’s decision to be an MRT-reviewable decision, relevantly, the Applicant must satisfy each of the subclauses of s.338(2) of the Act. Counsel for the First Respondent conceded that s.338(2)(a), (b) and (c) were satisfied. However the Applicant must also satisfy either of s.338(2)(d)(i) or s.338(2)(d)(ii) in establishing that the Delegate’s refusal is an MRT-reviewable decision.
Section 338(2)(d)(i) of the Act provides that an applicant must be sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the 457 visa is made. Unfortunately for the Applicant, it is clear from the evidence before the Court, that the approval for the Applicant’s sponsor had lapsed on 24 July 2007, whereas, the Applicant’s application for review was filed on 10 July 2008. On any reading of the criteria, in the circumstances, s.338(2)(d)(i) of the Act is not satisfied.
Section 338(2)(d)(ii) of the Act provides an alternative basis which, if met by the Applicant, would result in the Delegate’s refusal being an MRT-reviewable decision. That criterion requires that an application for review of a decision not to approve the sponsor has been made, but, at the time of lodging of an applicant’s review application, review of the refusal to approve the sponsor is pending.
Again, unfortunately, the Applicant’s business sponsor had been approved on 24 October 2005. However, such approval had lapsed by operation of law on 24 July 2007. At the time of the filing of the Applicant’s application for review with the Tribunal, no further application for approval by the sponsor had been made and refused.
In the circumstances, the decision of the Delegate to refuse the Applicant’s 457 visa is not an MRT-reviewable decision because it does not satisfy s.338(2) of the Act, or any of the other subsections of s.338 of the Act.
Accordingly, the Delegate’s decision is not an MRT-reviewable decision.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood and applied the relevant statutory regime.
Prior to making its decision, the Tribunal wrote to the Applicant informing the Applicant that the Tribunal may not have jurisdiction to review the decision of the Delegate to refuse him a 457 visa. The letter explained the criteria that the Applicant would be required to meet in s.338(2)(d) of the Act if the Applicant was to satisfy the Tribunal that the Delegate’s decision was an MRT-reviewable decision.
In particular, the Tribunal stated that “information before the Tribunal indicates that you are not sponsored by an approved sponsor when you lodged your application for review. This means that it appears that the Tribunal does not have power to review your application.” The letter invited the Applicant to comment, which the Applicant did by letter dated 15 September 2008.
The Tribunal considered the comments provided by the Applicant in the letter dated 15 September 2008. However, the Tribunal was correct in not being satisfied that the Applicant’s comments overcame the fact that, at the time of lodgement of the review application on 10 July 2008, the Applicant was not sponsored by an approved sponsor and the proposed sponsor had not lodged an application for review with the Tribunal in respect of any decision not to approve the sponsorship.
The Tribunal noted that it considered all subparagraphs of s.338 and reg.4.02 in reaching its conclusion.
In the circumstances, the finding by the Tribunal that it had no jurisdiction to consider the Applicant’s review application because the Delegate’s decision is not an MRT-reviewable decision is correct and without error.
Conclusion
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 10 November 2008, is dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 19 March 2009
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