Chapa v Minister for Immigration
[2020] FCCA 2664
•24 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHAPA v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2664 |
| Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – where the Tribunal found it had no jurisdiction – where the applicant was not in the migration zone at the time the application was made – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pts.2, 5, ss.5, 48, 338, 347, 476 Migration Regulations 1994 (Cth), reg.2.12 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | JACOBO GARCIA CHAPA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 501 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 22 September 2020 |
| Date of Last Submission: | 22 September 2020 |
| Delivered at: | Perth |
| Delivered on: | 24 September 2020 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 501 of 2019
| JACOBO GARCIA CHAPA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Spain. He first arrived in Australia on 1 August 2012. He has held various short-term visas including tourist, student and bridging visas since this time.
On 30 May 2017, the applicant applied for a Regional Employer Nomination (subclass 187) visa (Court Book (“CB”) 1-27). The applicant’s nominated position was as a “Personal Assistant” for “S&M Mobilia Showroom Pty Ltd” (the “sponsor”).
On 19 February 2019, the then Department of Home Affairs invited the applicant to comment on information. Specifically, the applicant was invited to comment on information that the sponsor’s nomination had been refused and that, as such, the visa would not be granted (CB 29-31). No response was provided by the applicant.
On 26 March 2019, a delegate of the first respondent (the “Minister”) refused to grant the visa.
On 30 March 2019, the applicant departed Australia (CB 51).
On 2 April 2019, the applicant (through his migration agent) applied for review of the delegate’s decision in the Administrative Appeals Tribunal (the “Tribunal”) (CB 40-41).
On 3 April 2019, the Tribunal invited the applicant to comment on the validity of the application for review. It stated (CB 44):
In order to have made a valid application, you must have been in Australia at the time the application was lodged with us on 2 April 2019. It appears that you were not in Australia on that date, and I am therefore of the view that your application is not a valid application. However, this is a matter which must be determined by a Member.
The applicant returned to Australia on 14 April 2019 (Affidavit of Daphne Jones Bolla affirmed 17 March 2020, Annexure DJB-1).
On 2 December 2019, the Tribunal determined that it had no jurisdiction to review the applicant’s matter because the applicant was not in Australia at the time that he lodged his application for review with the Tribunal (CB 46-50).
On 19 December 2019, the applicant applied to this Court seeking judicial review of the Tribunal’s decision pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To succeed, the applicant must establish that the Tribunal did have jurisdiction to determine his matter.
The Tribunal’s Decision
The Tribunal’s decision is 5 paragraphs long. It provides:
1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 26 March 2019, to refuse to grant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(2) of the Act.
2. The review application was lodged with the Tribunal on 2 April 2019. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
3. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.
4. The Department’s movement records show that the applicant departed Australia on 30 March 2019 and remained offshore at the time of the review application. The Tribunal finds that the applicant was not in the migration zone at the relevant time. As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.
DECISION
5. The Tribunal does not have jurisdiction in this matter
Proceedings in this Court
The applicant’s application for judicial review filed 19 December 2019 contains a sole ground of review as follows:
The decision made by the Second Respondent is incorrectly applied as the applicant was in fact onshore according to s48(3) of the Migration Act 1958. The applicant left and arrived within the prescribed 21 days so is deemed to never have left within the period. Therefore the Second Respondent did have jurisdiction in the matter.
The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of written submissions. No further materials were filed.
The evidence available to the Court is thus limited to the application for judicial review filed 19 December 2019, a Court Book numbering 51 pages (marked as Exhibit 1), the Explanatory Memorandum to the Migration Legislation Amendment Bill (No.1) 2008 (Cth) (marked as Exhibit 2), a copy of the Regulations for Subclass 187 as at the time of the application (marked as Exhibit 3), an affidavit of Daphne Jones-Bolla affirmed 17 March 2020 and an outline of submissions filed by the Minister on 21 August 2020.
The applicant appeared before the Court without legal representation. The Court confirmed with him that he had received a copy of the Court Book, Ms Jones-Bolla’s affidavit, the Minister’s written submissions filed 21 August 2020, Exhibit 2 and Exhibit 3.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, his grounds of review and to advise the Court if there was anything else he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the visa that is sought. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that his migration agent had advised him that he could leave Australia to visit his family. He also indicated that his employer still wanted him to continue working with the company.
The Court sympathises with the applicant. If the advice given to him from his migration agent was in fact as he states (i.e., that he could leave the country) then, regrettably (as will be explained below) that advice was incorrect given that an application was about to be filed in the Tribunal. In that regard, the Court notes that the applicant has also advised that the migration agent who advised him has had his registration cancelled by the Office of the Migration Agents Registration Authority.
The applicant does not allege that the migration agent was fraudulent. Nor is there anything before the Court to suggest that the agent was in fact fraudulent. At its highest the advice is arguably negligent. Negligence and incompetence do not amount to jurisdictional error: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
The applicant’s oral submissions do not identify any jurisdictional error.
Consideration of Sole Ground of Review
The applicant’s sole ground of review is, in effect, that the Tribunal was wrong when it found that it did not have jurisdiction. The applicant says that s.48(3) of the Act is such that he is deemed never to have left Australia during the “prescribed 21 day period”.
The sole ground reflects a misunderstanding of the relevant law and legal principles.
Section 48(3) provides:
For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel.
Relevantly, s.48 is found in Subdivision AA of Division 3 of Part 2 of the Act. Subdivision AA is titled “Applications for visas”. The applicant was not applying for a visa from the Tribunal. He was applying for review of a decision and his application was governed by Part 5 of the Act.
Further the Explanatory Memorandum to the Migration Legislation Amendment Bill (No.1) 2008 (Cth) (which explains the purpose and application of s.48(3)) provides:
133.This item inserts new subsection 48(3) at the end of section 48 of the Act. This item, together with item 21, reinforces the intended effect of section 48, which is to only restrict visa applications that a person can make while he or she is present in Australia (ie: in the migration zone).
134.Subsection 48(1) provides that a non-citizen who does not hold a substantive visa and who after last entering Australia was refused a visa, or had a visa cancelled, may only apply for a prescribed class of visa. This is to prevent non-citizens refused a visa or who have had a visa cancelled, from applying for another visa in Australia other than certain prescribed visas.
135.At present, an identified anomaly exists in the legislation which enables certain bridging visa holders, to circumvent the section 48 limitation. This occurs where a non-citizen leaves and re-enters Australia as the holder of a certain class of bridging visa (Bridging Visa B). Unlike other types of visa or bridging visas, this particular bridging visa enables the holder to leave and re-enter Australia. All other bridging visas cease on departure from Australia.
136. As a result, on re-entering Australia, the non-citizen holder of this particular bridging visa has not technically had a visa refused or cancelled “after last entering Australia” as specified by section 48. This enables a person to apply for a visa of a class other than those prescribed in the Regulations.
137.It was never intended that these bridging visa holders who leave and re-enter Australia be exempted from the restriction imposed by section 48.
138. New subsection 48(3) corrects this situation. It provides that a non-citizen who leaves and re-enters the migration zone while holding a bridging visa, is taken to have been continuously in the migration zone despite that travel.
139.This ensures that the restrictions imposed by section 48 on further visa applications will apply as originally intended.
It is apparent that s.48(3) only applies where a new visa application is made. It does not apply where a decision to refuse a visa is being reviewed. The applicant seems to be arguing that s.48(3) applies to applications to the Tribunal. It does not.
Section 48(3) would only assist the applicant if he was making a new application for a visa prescribed in reg.2.12 (such as a protection visa). He was not.
Section 48(3) of the Act has no application to the facts of this case.
In his application, the applicant states that he “left and arrived within the prescribed 21 days”. It appears that the applicant may be referring to the 21 day period he had to lodge an application for review at the Tribunal. For reasons explained further below, the fact that the applicant “left and arrived” within the “prescribed period” to lodge a review is immaterial. The legislation requires him to have been in Australia at the time he lodged the application.
The sole ground of review is dismissed.
Did the Tribunal have jurisdiction to hear the applicant’s case?
In its duty to the self-represented litigant (MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392), the Court will, in any event, consider whether the Tribunal was correct when it determined that it did not have jurisdiction.
The provisions of the Act relevant to the Tribunal’s jurisdiction in this matter can be found in Part 5 of the Act. The applicant was in Australia at the time he lodged his visa application. Section 338(2) thus applies. Where s.338(2) applies, an application must satisfy the strict requirements set out in s.347. If the application does not satisfy these requirements, the Tribunal will not have jurisdiction to hear the matter.
Section 347 provides:
(1) An application for review of a Part 5-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)--28 days after the notification of the decision; or
…
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by:
(a) if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)--the non-citizen who is the subject of that decision; or
…
(3) If the Part 5-reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
In his application to the Tribunal (and on the materials before the Court), the applicant:
a)used the correct form: the Act, s.347(1)(a);
b)applied within the prescribed 21 day period: the Act, s.347(1)(b); and
c)had standing to bring the application for review given he was the non-citizen the subject of the review: the Act, s.347(2)(a).
Further, the Court accepts that the applicant had paid the correct fee (the Act, s.347(1)(c)) as the Tribunal indicated that it would “provide a refund”.
Critically, the final requirement found in s.347(3) provides as follows:
If the Part 5-reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
The phrase “migration zone” is defined in s.5(1) of the Act. It is not necessary to fully expand upon this definition here.
There does not appear to be a dispute that the applicant was not in the “migration zone” when he applied to the Tribunal for review of the delegate’s decision. In any event, the evidence available to the Court definitively demonstrated that the applicant was not in the migration zone between 30 March 2019 and 14 April 2019: Affidavit of Daphne Jones Bolla, Annexure DJB-1.
The application to the Tribunal was lodged on 4 April 2019.
As the applicant was not physically present in the migration zone when the application was made, s.347(3) was not satisfied. The Tribunal had no jurisdiction.
The Tribunal reached the correct conclusion.
Conclusion
The application for review fails to identify any error in the Tribunal’s decision. The Court is otherwise satisfied that the Tribunal did not have jurisdiction to hear the applicant’s matter. There is no jurisdictional error in the Tribunal’s decision.
The Court sympathises with the applicant. The circumstances he describes are most unfortunate. Unfortunately, the Court cannot assist him as there is no evidence that the Tribunal fell into jurisdictional error and that is the only issue the Court can address here.
The application is dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 24 September 2020
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Jurisdiction
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
0
11
3