Chung v Minister for Immigration
[2020] FCCA 2043
•28 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHUNG v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2043 |
| Catchwords: MIGRATION – Temporary Work (Skilled) (subclass 457) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal was correct to find it had no jurisdiction – no “approved nomination” – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.338, 476 Migration Regulations 1994 (Cth), reg.4.02, cl.457.223 of Sch.2 |
| Cases cited: Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 |
| Applicant: | WAH CHONG CHUNG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 243 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 23 July 2020 |
| Date of Last Submission: | 23 July 2020 |
| Delivered at: | Perth |
| Delivered on: | 28 July 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr M Hawker |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 243 of 2017
| WAH CHONG CHUNG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Malaysia. On 17 August 2016, he applied for a Temporary Work (Skilled) (subclass 457) visa (the “visa”) (Court Book (“CB”) 1-13). His sponsoring employer was “Visual Interior Designs Pty Ltd” (the “sponsor”).
On 20 December 2016, a delegate of the first respondent (the “Minister”) invited the applicant to comment on information regarding his visa (CB 16-19). Specifically, the Invitation invited the applicant to comment on the fact that he was not the subject of an “approved nomination” (as is required for the grant of the visa).
No response to the Invitation was provided.
On 19 January 2017, the delegate refused to grant the applicant the visa (CB 21-26). The delegate found that the applicant did not meet cl.457.223 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the applicant’s sponsor did not hold an “approved nomination”.
On 8 February 2017, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 27-28).
On 2 March 2017, the Tribunal invited the applicant to comment on the following information (CB 39):
I am of the view that your application is not valid. This is because at the time the review application was lodged the applicant was not identified in a nomination under s.140GB of the Migration Act 1958 that was approved or pending. Nor was there a pending application for review before the Tribunal of either a decision not to approve the sponsor under S.140E, or a decision not to approve the nomination under s.140GB of the Act. However, this is a matter which must be determined by a Member.
No response was received to the Invitation to Comment.
On 6 April 2017, the Tribunal determined that it did not have jurisdiction (CB 43-45) (discussed further below).
On 4 May 2017, the applicant sought judicial review of the Tribunal’s decision in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To succeed, the applicant must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision relevantly provides:
2. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse or cancel visas and a range of sponsorship and nomination decisions but not an invalid decision under Part 5 such as one which, at the time of review application by an applicant, they were not identified in a nomination under s.140GB of the Migration Act 1958 that was approved or pending. Nor if there is no pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E, or a decision not to approve the nomination under s.140GB of the Act.
3. For the following reasons, the Tribunal has concluded that one or more conditions have not been met and it has no jurisdiction in this case.
4. The Review Applicant lodged an application with the Tribunal on 8 February 2017 to review the refusal of a UC 457 visa which was lodged onshore.
5. At the time of lodging the review application of 8 February 2017, according to departmental records:
• The Review Applicant’s sponsor, Visual Interior Designs Pty Ltd was an approved sponsor whose Standard Business Sponsorship (SBS) ceased on 19 February 2017 (T1, f.11).
• An application for the SBS agreement has been refused by the Department on 20 December 2016, and no review had been sought of that decision. (T1, f.10).
• The associated nomination was deemed to be ‘otherwise finalised’ on 20 December 2016 and a refund of the application fee was subsequently sought by the Review Applicant on 6 January 2017.
6. The Tribunal notes a Departmental notification letter dated 19 January 2017 inadvertently specifies that the applicant was entitled to apply for merits review “...within (7) working days...” (T1, f.3)] Notwithstanding the content error, a letter was sent to the Review Applicant via his authorised recipient on 2 March 2017 which advised that the application to review the UC 457 visa did not appear to be valid because at the time the application was lodged [on 8 Feb 2017] the applicant was not identified in a nomination [‘otherwise finalised’ on 20 December 2016] under s.140GB of the Migration Act that was approved or pending; nor was there a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E, or a decision not to approve the nomination under s.140GB of the Act.
7. The letter of 2 March 2017 specified a response was required by 16 March 2017. The Tribunal has received no response or communication from the applicant’s representative or the Review Applicant by the specified date, or even to the date of this decision.
8. Based on the above circumstances and evidence, the Tribunal finds it does not have jurisdiction to review the decision to refuse the Review Applicant’s UC 457 visa. The Tribunal considers the application to review the UC 457 visa is not validly made because at the time the application was lodged on 8 Feb 2017 the applicant was not identified in a nomination under s.140GB of the Migration Act that was approved or pending as this had ‘otherwise finalised’ on 20 December 2016; nor was there a pending application for review before the Tribunal of either a decision not to approve the sponsor under S.140E, or a decision not to approve the nomination under s.140GB of the Act.
8. As the delegate’s decision is not reviewable under Parts 5 or 7 of the Act it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.
Proceedings in this Court
The applicant’s judicial review application dated 4 May 2017 contains two “grounds of review” as follows:
1) The Tribunal made a finding that it does not have jurisdiction in the matter as there was no application for review of a decision not to approve my employer Visual Interior Pty Ltd’s nomination and therefore s.338(2)(d)(i) of the Act is not met.
2) My employer has since lodged a new sponsorship and nomination and therefore I believe I meet the requirement to apply for review of my case now.
The applicant filed an affidavit sworn 4 May 2017 in support of the judicial review application. That affidavit repeats the two grounds of review and provides other background information that is not relevant to the proceedings before this Court.
The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of submissions. No further materials were filed.
The materials before the Court are thus limited to the judicial review application, a Court Book numbering 52 pages (marked as Exhibit 1) and an outline of submissions filed by the Minister on 22 June 2020.
Before this Court the applicant appeared without legal representation. He was assisted by a Cantonese interpreter. Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, the grounds of review in his application for judicial review and outline any other concerns that he had with the Tribunal’s decision. This is now the standard procedure in this Court following the decision of the Federal Court 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 to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he seeks. 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 stated that “the hearing was insufficient”. When asked why, the applicant stated that this was “because, as a result of “the virus” his boss has been very busy”.
The Court assumes that the applicant’s reference to “a hearing” relates to the Tribunal’s decision. In that regard, it is noted that applicant was never invited to a hearing. Nor was the Tribunal required to do so as the Tribunal had no jurisdiction to consider his matter once it was clear that there was no approved nomination current or pending. As for the submissions made concerning the applicant’s “boss” or employer, while unfortunate, this has no bearing on the issue of whether the Tribunal had jurisdiction to hear the applicant’s application.
Consideration
Judicial Review Application
The grounds of review as framed in the applicant’s application for judicial review do not identify any jurisdictional error in the Tribunal’s decision.
Ground 1 is no more than a statement of fact which summarises the reasons why the Tribunal determined that it did not have jurisdiction. It does not take issue with that finding.
Ground 2 contains a statement that the sponsor has lodged a new sponsorship and nomination and the applicant now believes he can apply for “review”. There is no evidence before this Court of the sponsor having lodged any new nomination and, in any event, this is not relevant to the Court’s task on judicial review. The fact that the applicant now believes that he meets the requirements “for review” is immaterial in relation to whether the Tribunal correctly found that it did not have jurisdiction at the relevant time.
Grounds 1 and 2 of the judicial review application are, accordingly, dismissed.
Otherwise
Noting that the applicant appears without legal representation, the Court has remained astute to the possibility of error in the Tribunal’s decision (MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and has considered whether the Tribunal was correct to determine that it did not have jurisdiction.
Relevant to this matter is s.338(2)(d) of the Act, which provides as follows:
(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:
…
(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(1A) of the Regulations prescribes the applicant’s visa as one which is subject to s.338(2)(d) of the Act. In order for the Tribunal to have jurisdiction it required (at the time of application to the Tribunal) that either:
a)the applicant was identified in a nomination that was either approved or pending: Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182; or
b)the sponsor had a pending review application before the Tribunal in relation to the decision not to approve the nomination.
On the materials before the Court, the applicant did not satisfy either of these requirements at the relevant time. While his judicial review application stated that his sponsor had lodged a new application, a file note indicates that on 13 February 2017 the applicant’s agent indicated that the sponsor was filing a new application within seven days. Unfortunately, this was too late. At the time of the application for review (being 8 February 2017) the applicant did not have an approved or pending nomination. The screenshots in the Court Book otherwise also indicate that there was no approved or pending nomination. Hence, the applicant did not satisfy the requirements of s.338(2)(d)(i) of the Act.
There is nothing to suggest that the sponsor lodged an application for review at the Tribunal. As such, s.338(2)(d)(ii) was also not met. As a consequence, the Tribunal did not have jurisdiction and was correct to so find.
The Tribunal noted in its decision that the notification letter from the delegate incorrectly stated that the applicant could apply for review. This is not entirely accurate. The notification letter stated that there was no right of merits review. It noted that the applicant could become entitled to seek merits review if certain circumstances arose. In any event, whether or not the notification letter was accurate, in these particular circumstances it was immaterial to the Tribunal’s decision that it did not have jurisdiction.
Accordingly, the Court is satisfied that no error otherwise arises in the Tribunal’s decision.
Conclusion
The applicant has failed to identify any jurisdictional error. The Court is also satisfied that no other error arises.
The application is, accordingly, dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 28 July 2020
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