Cantil v Minister for Immigration & Anor
[2008] FMCA 849
•16 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CANTIL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 849 |
| MIGRATION – MRT decision – onshore subclass 457 visa for sponsored employment – withdrawal of sponsorship before application to Tribunal – Tribunal correctly found that its jurisdiction was excluded – application for mandamus dismissed. |
| Migration Act 1958 (Cth), ss.140D(a), 338(2)(d), 338(5) Migration Regulations 1994 (Cth), reg.4.02(1A), Sch.1 item 1223A(3)(d)(i), Sch.2 items 457.223(4), 457.223(4)(i), 457.223(4)(b)(ii) |
| Kim v Minister for Immigration & Citizenship [2007] FCA 983 Kim & Ors v Minister for Immigration & Anor [2007] FMCA 166 |
| Applicant: | JACQUELINE A CANTIL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 401 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 16 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr J B Hajje |
| Solicitors for the Applicant: | John B Hajje & Associates |
| Counsel for the First Respondent: | Ms S Sirtes |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 401 of 2008
| JACQUELINE A CANTIL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Ms Cantil is a national of the Philippines who was recruited to work in Australia in the aged care industry as a nursing assistant. She required a further visa to allow her to continue her residence and employment in Australia. The persons who were organising her employment assisted her to complete forms applying for a temporary business (long stay) visa (subclass 457), which she signed on 17 July 2006. The application was subsequently refused in a decision by a delegate made on 2 November 2007, and an application for review by the Tribunal was declined on the ground that it lacked jurisdiction. The present application seeks orders by way of mandamus to compel it to proceed to hear and determine her application for review.
Ms Cantil’s visa application form made application for a subclass 457 visa, based upon the qualification identified in the criteria contained in cl.457.223(4) of the Migration Regulations 1994 (Cth). These criteria apply to a person who is to be employed in Australia by an employer who is an approved business sponsor, and in an activity which is the subject of an approved business nomination by the employer. It is required that, at the date of decision, the applicant must establish an approved sponsoring employer for his or her employment, who is the same employer as originally proposed in the visa application. These effects arise from the following paragraphs in cl.457.223(4):
457.223(4)The applicant meets the requirements of this subclause if:
(a)the activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer; and
(b)the employer is:
(i)either:
(A) a pre‑qualified business sponsor; or
(B) a standard business sponsor approved under regulation 1.20D as in force before, on or after 1 July 2003; and
(ii)the employer mentioned in subparagraph 1223A(3)(d)(i); and
…
(c)the applicant is nominated, in accordance with approved form 1068, 1196 or 1196 (Internet), in relation to the activity by the employer; and
…
(i)the applicant is sponsored by an approved sponsor within the meaning of section 140D of the Act; and
…
Ms Cantil’s form of visa application relied only upon a qualification under cl.457.223(4), and indicated that she proposed to take up employment from 29 September 2006 for two years. The form ticked a box “No” in answer to the question, “Do you currently hold an Australian visa?” However, she claims that her previous visa had recently expired, and that when she signed the visa application on 17 July 2006 there was still time to apply for a new visa.
However, three months elapsed, and before her visa application was lodged Ms Cantil was detained by immigration officers on 17 October 2006, while working at the Princess Juliana Lodge. I infer that this was because she was working without an appropriate visa.
On 20 October 2006 Ms Cantil’s visa application was lodged, together with what appears to me to be an application by the proposed employer on form 1196, seeking approval to sponsor her employment pursuant to the provisions of the Migration Regulations. Unfortunately, the significant pages of this form, containing questions and answers 1 through 31, are not in the Court Books before me, so as to identify the name of the proposed sponsoring employer and the particular nominated employment in which it was proposed to employ her.
However, an acknowledgment of both the visa application and the employer’s nomination application was issued by the Department of Immigration on 20 October 2006. It identifies the sponsoring employer as “Doonside Aged Care Centre Pty Ltd”, and this is not a matter in dispute before me.
Ms Cantil claims that, after some very upsetting dealings with the immigration officials over several months, she was given a bridging visa with permission to work while her visa application was being processed. I assume that she still has such a visa during the pendency of her review proceedings.
While her visa application was still undecided, the Department of Immigration received an email dated 14 September 2007 from Mr Manken, Chief Executive Officer of Riverina Health Pty Ltd at Mosman. This said:
Further to my email of last week in response to your email of 27 August 2007 in relation to sponsorship of 14 individuals for Doonside Aged Care Centre Pty Ltd.
I can now confirm that the following individuals have been contacted and are comfortable with their existing sponsorship arrangements, separate from Doonside Aged Care Centre Pty Ltd.
[The applicant’s name is then listed with others.]
On this basis Doonside does not wish to sponsor any of these individuals.
I thank you for your patience and trust this clears up all the outstanding sponsorship concerns.
I am asked to assume that Mr Manken was a person authorised to announce a decision in relation to the sponsorship of Ms Cantil on behalf of Doonside Aged Care Centre Pty Ltd. I am prepared to draw that inference in circumstances, where this appears not to be disputed. Indeed, the withdrawal of her sponsorship by Doonside was conceded by Ms Cantil in correspondence to the delegate, and also subsequently to the Tribunal. She did not, however, concede that she had ever been contacted or consulted before the sponsorship was withdrawn, and strongly denies that she has ever been ‘comfortable’ about the withdrawal of the sponsorship.
On all the evidence, I am prepared to make a finding that, upon receipt of the email from Mr Manken, the Department had received a “notice in writing to the Minister” stating that Doonside’s sponsorship of Ms Cantil for the employment proposed in her visa application had been “withdrawn”, within the meaning of s.140D(a) of the Migration Act 1958 (Cth). This provides:
140DA person is an approved sponsor of another person for a visa at a particular time if:
(a)the first person has consented in writing to sponsor the second person for the visa and that consent has not been withdrawn by notice in writing to the Minister; and …
The evidence is unclear whether at the time of its withdrawal Doonside Aged Care Centre Pty Ltd had received approval as a business sponsor either in general or specifically as the proposed employer of Ms Cantil, nor whether its nomination of her employment had been approved.
I am inclined to think that if form 1196 had been lodged in a complete way, and was being processed in accordance with Departmental procedures which I have observed in other cases involving 457 visas, an application for approval of the employer and its employment nomination may also have been undecided at that time. This is because decisions about an employer’s applications for specific employment approval and the related visa application, are often addressed together. However, there is no evidence about this in the material before the Court.
Whether or not Doonside had previously been approved as a general or specific employer, or in relation to its nomination of Ms Cantil’s employment, I find that the Department had received written notice of withdrawal of its consent as a sponsor, which it had previously given so as to satisfy, inter alia, the criterion in cl.457.223(4)(i).
After obtaining Ms Cantil’s response to the withdrawal of sponsorship, and allowing her 28 days to consider her position and to lodge a new visa application putting forward a different sponsor, the delegate made a decision on 2 November 2007. The decision record suggested that this was because “the principal applicant has not been nominated by an employer who is an approved business sponsor”, referring to subclause 457.223(4). The delegate also pointed out that Ms Cantil had not claimed qualification under, and could not come within, any of the alternative bases on which a 457 onshore visa could be obtained.
Ms Cantil lodged an application for review in the Migration Review Tribunal on 10 December 2007.
In a letter posted on 12 December 2007, the Tribunal invited her to comment on two difficulties facing its jurisdiction. One was a time limit problem, and the second was the effect of s.338(2)(d) of the Migration Act. This provides:
(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 …
(c)…; 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.
Under Migration Regulation 4.02(1A) a subclass 457 visa is prescribed for the purposes of s.338(2)(d).
In my opinion, all the evidence before the Tribunal, which was confirmed by a submission accompanying the application for review to the Tribunal, was that Ms Cantil was not “sponsored by an approved sponsor” at the time that the application for review was lodged with the Tribunal, nor at that time was there an outstanding application for review of the refusal to approve a sponsorship application.
Ms Cantil presented to the Tribunal no arguments to show that it had jurisdiction, and on 24 January 2008 the Tribunal sent her a letter attaching its decision on its jurisdiction to address her application for review. The Tribunal declined jurisdiction, on the ground of the bar under s.338(2)(d). It did not address the question of the time limits.
In my opinion, the legal and factual basis of the Tribunal’s reasoning was correct, and I would arrive at the same conclusion on the evidence before me. I have, in a previous case concerning the same issue, considered the statutory provisions more closely, and I do not consider it is necessary for me to explain this conclusion, other than by providing the above narration of the relevant legislation and events (see Kim & Ors v Minister for Immigration & Anor [2007] FMCA 166, upheld in Kim v Minister for Immigration & Citizenship [2007] FCA 983).
In the material presented to the Court on behalf of Ms Cantil, she suggests that she would like to get further employment, and that she has found an employer whom she hopes would sponsor her for further employment in the aged care industry in Australia. In this respect, she may or may not have prospects in relation to a further visa application under the Migration Regulations. I do not know whether this is so. But what is clear, and was made clear in a letter sent to her by the Department of Immigration on 25 September 2007, is that the visa application which is the subject of the decision which she sought to have reviewed by the Tribunal could not be amended or used in relation to any sponsor other than the originally identified employer.
This is the clear effect of the criterion in subclause 457.223(4)(b)(ii), which requires the applicant at date of decision to be presenting the same employer identified in the original visa application, as required by Sch.1 subparagraph 1223A(3)(d)(i). The introduction of this requirement in 2003 amendments to the regulations, was intended to prevent the protraction of determination and review proceedings while new sponsors were being sought. Unfortunately, the speed of decision‑making in the present case has not reflected that policy, thereby causing Ms Cantil, and it would seem at least one other applicant, a long period of uncertainty about their ability to rectify their migration status.
The application filed in this Court on 20 February 2008 seeks mandamus to compel the Tribunal to exercise its jurisdiction in relation to the application for review lodged on 10 December 2007. The grounds originally put forward have been embellished in an amended application, which contains the following ground:
A.The Migration Review Tribunal (“the Tribunal”) made a jurisdictional error when the Tribunal failed or constructively failed to exercise its jurisdiction under the Migration Act.
Particulars
(i)The Tribunal erred in its findings that the requirement of s.338(2)(d) were not satisfied. The provisions of s.338(d) require that where there is a criterion for the grant of the subclass 457 visa the applicant is sponsored by an approved sponsor. The applicant had an approved sponsor at the relevant time and this means the decision made by the delegate makes it an MRT reviewable decision.
(ii)The Tribunal constructively failed to interpret the provisions contained in the s.388(5) [sic] of the Act by adopting a literal approach in its interpretation.
(iii)A breach of the rules of natural justice and procedural fairness occurred in the making of the decision. The decision maker failed to consider relevant factors and events that made this case as one of a genuine and proven misadventure and therefore standing outside the scope of what Parliament authorized. Additionally the decision maker failed to apply the test of reasonable proportionality that would have confirmed with certainty that a purposive approach (as opposed to a literal approach) should have been applied (see Madgwick J – High Court in SA v Tanner (1989) 166 CLR 161 at 167‑8). (emphasis in original)
The applicant has attached a sworn affidavit with supporting documents giving a detailed chronology of events leading to the “genuine misadventure” and to circumstances that were beyond the applicant’s control. The compliance officers had acted in bad faith in the discharge of their duties by unlawfully arresting the applicant and cancelling her visa and thereafter providing her with Bridging Visa E with a “NO WORK” condition imposed on it. This acted as a barrier at all times for any sponsorship visa applications during the allowable period.
In my opinion, there is no merit in any of these grounds. In relation to the first particular, no evidence has been presented to the Court that in fact “the applicant had an approved sponsor at the relevant time”, being the time of her application for review to the Tribunal. As I have indicated above, all the evidence which was before the Tribunal was to the contrary, and that same evidence is before me now. In my opinion, the Tribunal’s opinion about its jurisdiction is correct on the evidence before this Court, and I therefore find that it did not have jurisdiction.
In relation to the second particular, the Tribunal’s jurisdiction under s.338(5) is in its own terms plainly confined to visas “that could not be granted while the non‑citizen is in the migration zone”, that is, to visas which could only be granted to persons outside Australia. The present application for visa plainly sought an onshore visa. Reaching that conclusion may involve applying “a literal approach”, and it might result in a consequence which might appear unfair, but this is the only approach permitted to a Court which is obliged to apply unambiguous legislation according to its terms.
The argument presented in support of the second and third particular incorrectly suggest that the Tribunal and Court can take into account background events, and Ms Cantil’s grievances arising from them, as grounds for overlooking the clear effect of law. In my opinion, all the evidentiary material presented in support of that argument was irrelevant to the issues to be addressed by the Court, and I do not propose to make findings of fact about the events which are alleged to have occurred.
I would, however, record that on the evidence before me I would not find that any compliance officer “acted in bad faith”. As I have suggested, Ms Cantil appears to have been given a more than full opportunity to consider and improve her position after her visa application was lodged with the Department of Immigration. Her grievances about the people who had undertaken to arrange her employment in Australia may have more substance, but in my opinion they are irrelevant to my present judgment.
For the above reasons, I am satisfied that the Tribunal did not have jurisdiction, and that its decision to that effect was correctly arrived at. I must therefore dismiss the present application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 30 June 2008
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