Canto v Minister for Immigration

[2016] FCCA 2879

FEDERAL CIRCUIT COURT OF AUSTRALIA

CANTO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2879

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Temporary Business Entry (Class UC) visa – s.477 application for an extension of time – whether the Tribunal had jurisdiction – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 140E, 140GB, 337, 338, 476

Migration Regulations 1994, Reg.4.02(1AA), 4.02(1AA), cl 457.223 of sch.2

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: ANTONIO CARLOS CANTO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1760 of 2016

Judgment of: Judge Street

Hearing date: 8 November 2016

Date of Last Submission: 8 November 2016

Delivered at: Sydney

Delivered on: 8 November 2016

REPRESENTATION

Counsel for the Applicant: Ms C Lee

Solicitors for the Applicant: Murdockcheng Legal Practice

Solicitors for the Respondents:

Mr L Leerdam

DLA Piper

ORDERS

1. Leave is granted to the Applicant to file the amended application in Court and the need to file an electronic copy is dispensed with.

2. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) in respect of the delegate’s decision dated 1 September 2015 is dismissed.

3. The amended application for the review of the Tribunal’s decision dated 10 June 2016 is dismissed.

4. The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1760 of 2016

ANTONIO CARLOS CANTO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 June 2016 holding that the Tribunal did not have jurisdiction in respect of a decision of the delegate made on 1 September 2015 to refuse the grant of a Temporary Business Entry (Class UC) visa under s.65 of the Act.

2. The applicant is a citizen of Brazil and applied for the Subclass 457 Temporary Work (Skilled) visa on the basis of a nomination by a sponsor, Antonios Solutions Pty Limited, for the position of Painting Trades Worker. That application was made on 26 May 2015. 

3. On 7 July 2015 the delegate wrote to the applicant, inviting the applicant to comment on certain information. The letter made reference to the prospective employer being Antonios Solutions Pty Limited, and that it did not have an approved nomination for the applicant at this time. The letter identified to the applicant that as a result, the visa application is likely to be unsuccessful.   The letter provided:-

   If you wish to seek more information regarding why your prospective employer does not have an approved nomination for you, please be advised that you will need to contact them directly.

4. The letter continued:

   that in the absence of an approved nomination for your prospective sponsor, the applicant can either:-

   - provide comment on your intentions regarding your visa application (including providing evidence that you are the subject of an approved nomination)n; or

   - withdraw your application in writing;  or

   - provide comment or any other information which you think is relevant in response to this adverse information.

5. The letter identified a timeframe of within 28 days for the applicant to respond to the letter. The letter also provided information to the effect that if there was not a reply within the timeframe specified, the application may be decided without the department taking any action to obtain the requested information. The letter further referred to the position if the applicant was unable to provide this information within the timeframe that the applicant should contact the department and the details for contact were provided.

6. On 7 July 2015 the applicant’s migration agent sent an email to the department that relevantly stated:-

   A new sponsorship application has been lodged. Please find the receipt attached.

7. A tax invoice was annexed to the email which referred to the main applicant being Antonios Solutions Pty Ltd and made reference to Standard Business Sponsor in Australia and identified a payment of $424.54 in that regard. A number of other documents were also provided, except the application made by Antonios Solutions Pty Ltd. 

The Delegate’s decision

1. On 1 September 2015 the delegate found that the criteria for the grant of a Temporary Work Skilled (subclass 457) visa were not met by the applicant. The delegate identified the primary criteria for the 457.223(1) visa as requiring the applicant to meet subclause (2) or subclause (4) in Schedule 2 to the Migration Regulations 1994 (“the Regulations”). The delegate noted that there were no claims or evidence that the applicant met subclause (2), and the delegate found that the primary applicant failed to satisfy subclause (2). The delegate noted that the only subclause against which any claims or evidence have been provided is subclause 457.223(4), which relevantly provides as follows:-

   Clause 457.223(4)(a) states in full:

   (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;

2. The delegate made reference to having considered all the information provided at the time of the decision. The delegate noted that on 7 July 2015, a decision was taken by the Department to refuse the application for the standard business sponsorship approval lodged by the applicant’s respective employer, Antonios Solutions Pty Limited.

3. The delegate made reference to the fact that as the applicant’s prospective employer is not an approved standard business sponsor, the nomination application lodged by the primary applicant’s prospective employer was unable to be assessed. The delegate made reference to having written to the primary applicant and providing an opportunity by the letter sent on 7 July 2015, to comment on their intentions regarding the visa application and noting that the applicant was given 28 days to submit the further information for consideration.

4. The delegate noted that whilst the applicant advised that a new sponsorship application had been lodged, the delegate was not satisfied there is sufficient evidence to demonstrate that the applicant’s business activity is subject to an approved business nomination. It was in those circumstances that the delegate found that the applicant failed to satisfy the criteria under clause 457.223(4)(a) of the Regulations. The delegate found that the applicant failed to meet clause 457.223(4)(a) of the Regulations and found that the criteria for the grant of a Temporary Business Entry visa were not met by the applicant and accordingly, refused the application for a temporary business entry visa.

5. The decision of the delegate, notifying the refusal, was sent on 1 September at 12:51 pm to the applicant’s authorised email address.  Subsequent to those circumstances, there was lodged a nomination application on 1 September 2015 at 14:47 pm by Antonios Solutions Pty Limited. 

The Tribunal’s decision

1. On 17 September 2015, the applicant applied for review of the delegate’s decision. By letter dated 8 March 2016, the Tribunal invited the applicant to attend a hearing on 14 March 2016. The applicant attended on that date with the applicant’s migration representative to give evidence and present arguments.

2. On 8 October, a decision was made by which Antonios Solutions Pty Ltd became an approved sponsor. On 18 March 2016, following the hearing on 14 March, the Tribunal sent the applicant a letter inviting the applicant to comment on the issue of the validity of the application for review. The letter relevantly made reference to the definition of an approved sponsor in s.5(1) of the Act which is as follows:-

   “Approved sponsor” means:

   (a)  a person:

   (i)  who has been approved by the Minister under section 140E in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and

   (ii)  whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or

   (b)  a person (other than a Minister) who is a party to a work agreement.

   Note: A partnership or an unincorporated association may be an approved sponsor: see subsections 140ZB(1) and 140ZE(1) respectively.

3. The letter also made reference to reg 4.02(1AA) of the Regulations, as to the meaning of sponsored in s.337 in Division 1 of Part 5 of the Act and sets out the interpretation to be applied in Part 5, including s.338 of the Act that relevantly provides as follows:-

   (1)  A decision is a Part 5-reviewable decision if this section so provides, unless:

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

   (b)  the decision is a Part 7-reviewable decision; or

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

   (d)  the decision is a fast track 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.

   (3)  A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is a Part 5-reviewable decision unless the decision:

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

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

   (c)  was made under section 133A or 133C, subsection 134(1), (3A) or (4) or section 501; or

   (d)  was made personally by the Minister under section 109 or 116 or subsection 140(2).

   (3A)  A decision under section 137L not to revoke the cancellation of a non-citizen's visa is a Part 5-reviewable decision if the non-citizen was in the migration zone when the decision was made.

   (4)  The following decisions are Part 5-reviewable decisions :

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

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

   (5)  A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

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

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

   (i)  an Australian citizen; or

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

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

   (iv)  the holder of a permanent visa; or

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

   (6)  A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

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

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

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

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

   (7)  A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

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

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

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

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

   (7A)  A decision to refuse to grant a non-citizen a permanent visa is a Part 5-reviewable decision if:

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

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

   (8)  A decision, under section 93, as to the assessed score of an applicant for a visa is a Part 5-reviewable decision if:

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

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

   (i)  an Australian citizen; or

   (ii)  the holder of a permanent visa; or

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

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

   (9)  A decision that is prescribed for the purposes of this subsection is a Part 5-reviewable decision .

4. The letter also made reference to s.140E of the Act which is set out as follows:-

   (1)  The Minister must approve a person as a sponsor in relation to one or more classes prescribed for the purpose of subsection (2) if prescribed criteria are satisfied.

   Note: A person (other than a Minister) who is a party to a work agreement is an approved sponsor and does not need to be approved as a sponsor under this section: see paragraph (b) of the definition of approved sponsor .

   (2)  The regulations must prescribe classes in relation to which a person may be approved as a sponsor.

   (3)  Different criteria may be prescribed for:

   (a)  different kinds of visa (however described); and

   (b)  different classes in relation to which a person may be approved as a sponsor; and

   (c)  different classes of person within a class in relation to which a person may be approved as a sponsor.

5. The letter relevantly said that the Tribunal member was of the view that the application was not valid and that this is because the review application was lodged on 17 September 2015, at a time that the applicant was not sponsored by an approved sponsor as required by s.338(2)(d)(i) of the Act. On 30 March 2016, a submission was advanced on behalf of the applicant to the effect that s.338(2)(d)(i) of the Act should be read so as to include a person who has applied to be an approved sponsor or a person who has re-lodged an application for approval of a sponsorship. The Tribunal rejected that construction in its decision on 10 June 2016.

6. The Tribunal’s reasons refer to having formed a preliminary view that the application was not reviewable because at the time that the application was lodged, the applicant was not identified in a nomination by an approved business sponsor under s.140GB of the Act that was approved or pending. The Tribunal made reference to the communication sent to the applicant on 18 March 2016 and the applicant’s response. The Tribunal also made reference to the fact that on 9 June 2016 the applicant advised the Tribunal that the nomination lodged by Antonios Solutions Pty Ltd which identified the applicant as the nominee had been approved.

7. The Tribunal found that it did not accept that the meaning of “approved sponsor” includes a situation where an application for approval as a standard business sponsor has been lodged but not determined. The Tribunal made reference to the definition of s.5(1) of the Act. The Tribunal found that although a nomination application had been lodged with the department on 1 September 2015, prior to the making of the application for review on 17 September 2015, the sponsor agreement was not approved until 8 October 2015.

8. The Tribunal found that at the time the application for review was lodged, although the applicant had been identified in an application in the nomination, the nomination application had not been made by an approved sponsor. The Tribunal found that at the time for the application for review was lodged by the applicant on 17 September 2015, the applicant was not identified in the nomination by an approved sponsor that was approved or pending and there was not a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E of the Act or a decision not to approve the nomination under s.140GB of the Act. The Tribunal found that the requirements of s.338(2)(d) of the Act were not met.

9. The Tribunal found that the decision to refuse the applicant the Subclass 457 visa was not a reviewable decision in accordance with s.338(2)(d) and reg 4.02(1A). The Tribunal concluded the decision was not reviewable in these circumstances and held it did not have jurisdiction.

Before this Court

1. An application for a review was lodged in this Court on 8 July 2016. The applicant seeks to allege a jurisdictional error by the Tribunal in its decision dated 10 June 2016 and also seeks an extension of time under s.477 of the Act to challenge the delegate’s decision made on 1 September 2015 on the basis that if the Tribunal did not have jurisdiction, the delegate’s decision would not be excluded under s.476(2) of the Act from this Court’s jurisdiction and that this Court could grant relief in respect of the delegate’s decision.

2. An application for an extension of time under s.477 requires an adequate explanation for the delay, consideration of the prejudice that may have been caused by the delay and whether there is a sufficiently arguable case to warrant extension of time in the interest of the administration of justice. In the present case, there is no suggestion of any prejudice to the respondent in relation to the delay. The applicant’s explanation for the delay is that the applicant was not aware of what the Tribunal might hold and that the Tribunal might determine that it did not have jurisdiction.

3. It was submitted that as the Tribunal had taken quite some time to determine whether it had jurisdiction that the applicant had a satisfactory explanation for the delay under s.477 of the Act. I do not regard those facts as giving rise to a satisfactory explanation for the delay under s.477 of the Act.

4. However, the more significant issue in the present case in relation to the grounds sought to be raised in respect of the delegate’s decision are the merits of that argument. The grounds in the amended application are as follows:-

   1. The decision of the delegate of the first respondent not to postpone the making of a decision about the applicant's application for a Temporary Business Entry (Class UC) visa was legally unreasonable.

   2. In the alternative, the second respondent erred in finding that it did not have jurisdiction to review the delegate's decision because it misconstrued the definition of “Part-5-reviewable decision" as requiring, at paragraph 338(2)(d) of the Migration Act 1958, that the applicant's sponsor be an “approved sponsor" at time of application for review, as opposed to requiring only that the applicant be “sponsored" (as defined in subregulation 1.20(1) of the Migration Regulations 1994) at that time.

Consideration

1. It is Ground 1 that relates to the s.477 application in respect of the delegate’s decision made on 1 September 2015. The argument was advanced on the basis that the communication sent to the delegate on 7 July 2015 should be understood in essence, as a request for further time because what it identified was a step taken that might meet one of the three essential criteria for the grant of the visa. Section 63 of the Act provides as follows:-

   (1)  Subject to sections 39 (criterion limiting number of visas), 57 (give applicant information), 84 (no further processing), 86 (effect of limit on visas) and 94 (put aside under points system) and subsections (2) and (3) of this section, the Minister may grant or refuse to grant a visa at any time after the application has been made.

   (2)  The Minister is not to refuse to grant a visa after inviting the applicant to give information and before whichever of the following happens first:

   (a)  the information is given;

   (b)  the applicant tells the Minister that the applicant does not wish to give the information or does not have it;

   (c)  the time in which the information may be given ends.

   (3)  The Minister is not to refuse to grant a visa after inviting the applicant to comment on information and before whichever of the following happens first:

   (a)  the comments are given;

   (b)  the applicant tells the Minister that the applicant does not wish to comment;

   (c)  the time in which the comments are to be given ends.

   (4)  The Minister is not to refuse to grant a visa after giving a notice under section 64 and before whichever of the following happens first:

   (a)  the applicant pays the visa application charge; or

   (b)  the applicant tells the Minister that the applicant does not intend to pay the visa application charge; or

   (c)  the end of the period set out in the notice.

2. There was no request for an extension of time on behalf of the applicant and whilst the email dated 7 July 2015 did identify a step taken in relation to one of the essential criteria, it was open to the delegate to proceed to determine the matter in accordance with s.63 of the Act.

3. On the face of the evidence before the Court, there was no request for an adjournment. There was a communication on page 45 of the Court Book that an application had been lodged. However, there was no request to postpone or adjourn, this was simply a provision of information.

4. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. There is no arguable case of jurisdictional error by the delegate. There is no arguable case that the delegate’s decision in the present case to proceed to determine the matter on 1 September 2015 could be said to lack an evident and intelligible justification. The delegate gave an explanation for proposing to determine the matter and properly took into account the material that was before it.

5. Ground 1 fails to identify a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice under s.477 of the Act. The application for an extension of time under s.477 of the Act in respect of the decision of the delegate made on 1 September 2015 is dismissed.

6. In relation to Ground 2, the applicant submitted that because of the present tense and use of the words, “is sponsored” and the definition of sponsored in the Regulations that the applicant met the criteria under s.338(2)(d)(i) of the Act. The applicant through Counsel, accepted that this was not a case in respect of which there was a basis to advance that the applicant met the criteria under s.338(2)(d)(ii) of the Act. The applicant’s argument was in substance, that the circumstances of the present case were one of hardship not intended to fall outside the scope of an entitlement to review.

7. The applicant contended that it would accord with the statutory scheme to construe s.338(2)(d)(i) of the Act to accommodate the circumstances of the present case notwithstanding there was not an approved sponsor at the time of the application to review being made. Counsel for the applicant accepted that the thrust of the applicant’s construction was to read out of s.338(2)(d) of the Act, the words “by an approved sponsor”. There is no warrant for reading out the language used in s.338 of the Act. On the proper construction of s.338(2)(d)(i) of the Act, it is patent that the applicant was not the subject of an approved sponsor at the time the application for review was made. The Tribunal was correct in its construction of s.338(2)(d)(i) of the Act in holding that it did not have jurisdiction. Ground 2 fails to make out a jurisdictional error in relation to the decision of the Tribunal.

8. The amended application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 25 January 2017