Diamant & Ors v Minister for Immigration & Anor
[2014] FCCA 21
•31 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIAMANT & ORS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 21 |
| Catchwords: MIGRATION – Judicial review – Migration Review Tribunal – temporary business entry visa – whether applicant sponsored as required by a criterion for visa – where applicants invited to comment on whether valid application made – whether estoppel arises – whether jurisdictional error. |
| Legislation: Australian Citizenship Act 2007 (Cth), s.12(1)(b) Migration Act 1958 (Cth), ss.30(2), 65, 66(2)(d)(i), 140A, 140GB, 338, 347(2), 348(1), 357A(3), 359A, 359C, 424A, 474, 476, Division 3A, Part 5 Migration Amendment Regulations 2009 (No. 1) (Cth) |
| Cheng v Minister for Immigration & Citizenship [2011] FMCA 461 Minister for Immigration & Citizenship v Islam & Ors (2012) 202 FCR 46; [2012] FCA 195 Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 SZEAC v Minister for Immigration & Anor [2007] FMCA 1552 |
| First Applicant: | SHELLY RAHEL DIAMANT |
| Second Applicant: | RONEN DIAMANT |
| Third Applicant: | NOA DIAMANT |
| Fourth Applicant: | NATAN DIAMANT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 112 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 11 December 2013 |
| Date of Last Submission: | 11 December 2013 |
| Delivered at: | Perth |
| Delivered on: | 31 January 2014 |
REPRESENTATION
| For the First, Second, Third and Fourth Applicants: | Mr R Diamant (Second Applicant, and by leave for the First, Third and Fourth Applicants) |
| Counsel for the Respondents: | Mr M Alderton |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be amended to “Minister for Immigration & Border Protection”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 112 of 2013
| SHELLY RAHEL DIAMANT |
First Applicant
| RONEN DIAMANT |
Second Applicant
| NOA DIAMANT |
Third Applicant
|
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 27 May 2013, amended on 14 August 2013, the first applicant, Shelly Rahel Diamant,[1] as primary applicant, and on behalf of her husband Ronen Diamant,[2] and two children, Noa Diamant and Natan Diamant,[3] seeks judicial review of a 23 April 2013 decision of the Migration Review Tribunal.[4] The Tribunal found that it did not have jurisdiction to review the 20 October 2012 decision of a delegate[5] of the first respondent[6] to refuse to grant the applicants Temporary Business Entry (Class UC, Subclass 457) visas[7] under s.65 of the Migration Act 1958 (Cth).[8]
[1] “first applicant”.
[2] “second applicant”.
[3] “third applicant” and “fourth applicant”.
[4] “Tribunal” and “Tribunal Decision” respectively. The Tribunal Decision is at Court Book (“CB”) 95-97.
[5] “Delegate” and “Delegate’s Decision” respectively.
[6] “Minister”, then the Minister for Immigration & Citizenship, now the Minister for Immigration & Border Protection.
[7] “Subclass 457 Visa”.
[8] “Migration Act”.
The visa application and requirements
The first applicant applied for a Subclass 457 Visa on 4 July 2012.[9] The second, third and fourth applicants were included in that application as members of the first applicant’s family unit.[10] All of the applicants are Israeli citizens.[11] The first and second applicants have another daughter, Eden Diamant, who did not apply for the visa as she is an Australian citizen.[12]
[9] CB 18-29.
[10] CB 20-21.
[11] CB 13-15.
[12] CB 21.
Amongst the primary criteria to be satisfied at the time of decision for the grant of a Subclass 457 Visa was that the first applicant met the requirements of either subclause (2), (4), (7A), (8), (9) or (10) of cl.457.223 of Schedule 2 to the Migration Regulations 1994 (Cth).[13] The first applicant relied upon meeting the requirements of cl.457.223(4) of Schedule 2 to the Migration Regulations in that she claimed to be sponsored by an Australian business, Madaffim Pty Ltd.[14]
[13] “Migration Regulations”, Sch.2, cl.457.223(1).
[14] “Madaffim”; CB 3-17.
Standard business sponsorship approval refused
On 31 August 2012, the Delegate refused an application by Madaffim for approval as a standard business sponsor.[15] By email also sent on 31 August 2012, the Delegate wrote to the first applicant advising her that:
[15] CB 60-65.
a)one of the criteria for the grant of a Subclass 457 Visa is an approved nomination;[16]
b)Madaffim, as her prospective employer, did not have an approved nomination for her, and as a result, her Subclass 457 Visa application was unlikely to be successful;[17]
c)if she wished to seek more information regarding why Madaffim did not have an approved nomination for her, she would need to contact Madaffim directly;[18]
d)in the absence of an approved nomination from Madaffim, she could either:
i)provide comment on her intentions regarding the Subclass 457 Visa application, including providing lodgement details of a new nomination, or an approved nomination, of which she was the subject; or
ii)withdraw her application for a Subclass 457 Visa in writing,
prior to a decision being made on the Subclass 457 Visa application.[19]
[16] CB 66.
[17] CB 66.
[18] CB 66.
[19] CB 66.
The first applicant was given 28 days to respond to this letter.[20] No response was received. The first applicant was advised that if she did not respond within the 28 day timeframe a decision would be made on the Subclass 457 Visa application based on the information already on hand.[21]
[20] CB 66.
[21] CB 67.
Delegate’s Decision
On 2 October 2012, the Delegate refused to grant the first applicant a Subclass 457 Visa on the basis that the first applicant did not meet cl.457.223(4)(a) of Schedule 2 to the Migration Regulations, as the Delegate found that the first applicant’s prospective employer was not an approved standard business sponsor, and, therefore, the first applicant was not the subject of an approved business nomination.[22]
[22] CB 76.
Application for review of Delegate’s Decision by the Tribunal
On 22 October 2012, the first applicant lodged an application for review with the Tribunal to review the Delegate’s Decision,[23] attached to which was a typed two page written submission.[24]
[23] CB 78-87.
[24] CB 88-89 (“First Applicant’s Written Tribunal Submission”).
The First Applicant’s Written Tribunal Submission dealt with the following matters:
a)the background of the first applicant’s family, including her arrival with her husband in Australia in July 1996, and the fact that all of their children have been born in Australia;[25]
[25] CB 88.
b)that the first applicant supports the values and ideals of an Australian way of life and the family are also active in the Jewish community and local synagogue;[26]
[26] CB 88.
c)that the children are popular among their peers, are active in school, sports and youth clubs, and have grown up in Australia, are fluent in English, cannot converse in Hebrew and, with the exception of the eldest child, have never been to Israel;[27]
[27] CB 88.
d)that since lodging the Subclass 457 Visa application on 4 July 2012 there had been changes in circumstances including the following, which the first applicant asked the Tribunal to take into consideration:
i)Madaffim could not assure long term employment, and as such did not complete the approved business sponsor application, which led to its refusal as an approved sponsor;[28]
ii)the second applicant’s employment as a religious worker at a synagogue had been terminated following a restructure;[29] and
iii)the second applicant had received a work permit in May 2012 and had grown a roof repair business to a level that can adequately support the family;[30]
e)the eldest child of the family was granted Australian citizenship in early 2012, considers herself Australian, and was about to enter year 7 and complete her primary schooling in 2013, and should be allowed to complete her primary schooling in Australia, so as to facilitate her commencing high school in Israel in September 2014, if she were required to continue her education in Israel; and
f)the first applicant therefore sought that the Tribunal consider:
i)the changes in circumstances and the particular requirements of the children, including the eldest daughter; and
ii)any visa that would allow the eldest child to complete her primary school education in Australia in the presence of her family.[31]
[28] CB 88.
[29] CB 88.
[30] CB 88.
[31] CB 89. Although the eldest child’s educational status is not a relevant consideration for the purposes of the Subclass 457 Visa application, the Court observes that with the effluxion of time the eldest child has now completed primary school. The Court also notes that the first and second applicants have one child who is an Australian citizen and another who ought to be: Australian Citizenship Act 2007 (Cth), s.12(1)(b). No issue arose in these proceedings as to whether the first and second applicants were eligible for Parent (Subclass 103); Contributing Parent (Temporary) (Subclass 173) or Contributing Parent (Subclass 143) visas.
The Tribunal acknowledged receipt of the application for review of the Delegate’s Decision and advised the first applicant on 24 October 2012 that the Tribunal could only review the Delegate’s Decision if a valid application for review had been made, and that the first applicant would be advised if it appeared that her application may not be valid.[32]
[32] CB 90.
By letter dated 7 March 2013,[33] the Tribunal invited the first applicant to comment on its preliminary view that it did not have jurisdiction to review the Delegate’s Decision because the first applicant’s sponsor:
a)was not an approved sponsor, or
b)had not made a valid application to review the decision not to approve the sponsorship.[34]
The first applicant was given until 2 April 2013 to respond to this invitation. The first applicant was advised that any comments she made would be referred to the Tribunal to make a decision on the Subclass 457 Visa application, and that if the Tribunal decided that the first applicant had not made a valid application, she would be given a written statement of reasons and decision. [35]
[33] “Tribunal’s 7 March 2013 Letter”.
[34] CB 92.
[35] CB 92.
The Tribunal Decision indicates that:
a)the second applicant telephoned the Tribunal on 12 March 2013 to enquire about the contents of the Tribunal’s 7 March 2013 Letter;[36] and
b)no further information was provided by the first applicant to the Tribunal.[37]
[36] CB 93 and 96 at para.5 (“12 March 2013 Enquiry”).
[37] CB 96 at para.6.
The case note of the Tribunal officer who dealt with the 12 March 2013 Enquiry notes as follows:
RA’s spouse, Mr Ronen Diamant, telephoned about the “natural justice” letter that the trib sent them. When asked how they can have valid rev applns., I told him that the when they lodged their rev applns, they didn’t appear to have an approved sponsor or a pending sponsor rev appln. I told him that it’s one of the requirements they need to meet to have valid rev applns. I told him that if they would like to make comments, the trib needs to receive their written comments by 2 Apr 2013. He said that he just followed DIAC officer’s advice, so they lodged their rev applns. I told him that I cannot comment on what he just told me. I suggested that they seek advice from a registered migration agent or an immigration law specialist.
He said that they are now on BVEs and asked if they could write to the Minister of Immig. I told him that they can and then I repeated that they seek advice from a migration agent or immigration law specialist. He thanked me for my time.[38]
[38] CB 93 (typed from copy in CB without amendment).
Tribunal Decision
The Tribunal found that:
a)the Delegate’s Decision was not reviewable because the first applicant was not sponsored by an approved sponsor as required by a criterion for the grant of a Subclass 457 Visa;[39]
b)Madaffim had not sought a merits review of the decision not to approve it as an approved sponsor;[40] and
c)the Tribunal did not, therefore, have jurisdiction to review the application as the Delegate’s Decision was not a “MRT-reviewable decision”.[41]
[39] CB 96 at para.3.
[40] CB 96 at para.3.
[41] CB 96 at para.7.
The grounds of review
The amended application filed on 14 August 2013 contains four grounds of review as follows:
1. The notification of refusal by the delegate was invalid due to substantial misinformation as to the applicants’ review rights.
2. The applicants relied detrimentally on the delegate’s representation and acted or refrained from acting accordingly, such that the process cannot be said to be fair and just as per the requirements of s.357A(3) of the Act.
3. The tribunal and its officer failed to explain to the Applicants that it was overturning the delegate’s decision and the terminal consequences thereof in a manner that the applicant understood, and as such failed to comply with ss 359A and 424A of the Act.
4. The tribunal wrongly exercised its discretion when relying on section 359C considering the complex circumstances in this case, including the fact that we have an Australian citizen minor child, and in so doing acted unreasonably.
The first applicant’s affidavit
In support of the amended application the first applicant filed an affidavit sworn 14 August 2013,[42] in the following terms:
[42] “First Applicant’s Affidavit”.
1.I was born in Israel on 15 August 1971 and arrived in Australia with my husband in July 1996.
2.My husband, Ronen Diamant was born in Israel on 29 August 1970 and arrived in Australia in July 1996.
3.My husband and I have three children born in Australia.
4.My daughter, Eden Diamant, was born in Sydney on 28 December 2000. On 8 May 2012, we received notice from the Minister for Immigration and Citizenship that Eden acquired citizenship on 28 December 2010.
5.My daughter, Noa Diamant, was born in Perth on 4 December 2003.
6.My son, Natan Diamant, was born in Perth on 21 July 2010.
7.On 4 July 2012, an application was made by the Applicants for a Temporary Business Entry (Class UC) visa. The sponsor was Madaffim Pty Ltd (“the sponsor”).
8.The sponsor was rejected on 31 August 2012. No application for review was made as the applicants’ position was still pending.
9.The applicant was notified on 2 October that their application for a Subclass 457 visa was rejected. The notification stated that ‘this decision can be reviewed’ and further ‘you are entitled to apply to the Migration Review Tribunal (MRT) for a review of the decision’ (emphasis added). The term ‘you’ was defined to mean ‘each of these applicants’.
10.On or about 18 October the Second Applicant sought further clarification in person from the Department as to whether the MRT review should be from the Applicant or the Sponsor and was orally advised that the Applicants should seek the review in person. The position stated in the letter, that the decision was reviewable, was confirmed.
11.On that basis, a review was sought on 22 October 2012 which included a request that the MRT consider ‘any options within its powers to accommodate the family’ or grant a twelve month extension of their current Visa E. The applicants noted that their twelve year old daughter was an Australian citizen and their wish for her to complete her primary school education in Australia. The MRT Case Number was 1216257.
12.On 7 March 2013, the tribunal wrote to me raising their concerns about the validity of the application for review and seeking ‘any comments’. Considering the advice, my husband had previously received from the Department and their assurance in the letter dated 22 October, I made no further comment.
13.On 12 March 2013, my husband telephoned the tribunal officer and inquired as to the type of information required to support their case. No information was forthcoming and he was merely told to seek legal advice.
14.On 23 April 2012, the tribunal determined that it had no jurisdiction to deal with the matter. The decision was made without the applicants having appeared in the review.
15.I have relied on the statements made orally and in writing that this application was reviewable. This would have meant that the application could be appealed to the minister on the basis of the special circumstances of the case (including our 17 year tenure in Australia and the fact that we are the parents of an Australian citizen). The change in position as communicated by the MRT has terminated this option.
Grounds of amended application
Applicant’s submissions
The applicants did not file submissions as required by the Court’s orders of 26 June 2013. The oral submissions made at hearing by the second applicant, on behalf of all of the applicants, were based on, and largely reiterated, the factual matters set out in the First Applicant’s Affidavit, and in particular the oral submissions emphasised that the option of an appeal direct to the Minister was no longer available.
Minister’s submissions
Whether Tribunal had jurisdiction to review the Delegate’s Decision
The Minister submitted that the Tribunal was correct to find that it did not have jurisdiction to review the Delegate’s Decision, for the following reasons:
a)section 338 of the Migration Act prescribes decisions that are reviewable by the Tribunal. In particular, s.338(2)(d) of the Migration Act provides that the Tribunal has jurisdiction to review a primary decision in circumstances where it is a criterion for the grant of a temporary visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a prescribed kind if:
i)the non-citizen is sponsored by an approved sponsor at the time the application to review the Delegate’s Decision to refuse to grant the visa is made; or
ii)an application for review of a decision not to approve the sponsor as an approved 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;
b)regulation 4.02(1A)(k) of the Migration Regulations provides that an application for a Subclass 457 Visa is a prescribed visa for the purposes of s.338(2)(d) of the Migration Act;
c)clause 457.223(4)(a) of Schedule 2 to the Migration Regulations required that the applicant was either:
i)the subject of an approved business nomination under reg.1.20H of the Migration Regulations; or
ii)the occupation nominated by the applicant had been approved by the Minister under s.140GB of the Migration Act;
d)the nomination must be “made by a person who was a standard business sponsor at the time the nomination was approved”;[43]
e)section 337 of the Migration Act provides that in Part 5 of the Migration Act “sponsored” has the same meaning as in the Migration Regulations. Regulation 4.02(1AA) of the Migration Regulations provides that “sponsored” includes being identified in a nomination under s.140GB of the Migration Act.[44] Section 140GB of the Migration Act applies to visa applications of a particular kind, including applications for a Subclass 457 Visa.[45] Accordingly, it was plainly a criterion for the grant of a Subclass 457 Visa that the first applicant was sponsored by an approved sponsor such that s.338(2)(d) of the Migration Act applied to her; and
f)the effect of the regulatory scheme is to require that it is a criterion for the grant of a Subclass 457 Visa that the applicant is sponsored by an approved sponsor. The absence of such an approved sponsor means that at the relevant time, the Delegate’s Decision was not an “MRT reviewable decision”.[46] This is reinforced by the Explanatory Memorandum to the amending legislation, which states that the purpose of s.338(2)(d) of the Migration Act is to ensure that only those visa applicants who have an approved sponsor, or are seeking review of a decision to refuse to approve sponsorship, may apply to the Tribunal for review of a decision to refuse to grant a prescribed visa.[47]
[43] Migration Regulations, Sch.2, cl.457.223(4)(a)(ii)(A).
[44] Reg.4.02(1AA) of the Migration Regulations was included in SLI 115 of 2009 by an amendment to that amendment (Migration Amendment Regulations 2009 (No. 5) (Cth) and Migration Amendment Regulations 2009 (No. 1) (Cth) (SLI 203 of 2009), Schedule 1 item 152). The Explanatory Statement to that amending Regulation noted that the purpose of reg.4.02(1AA) was to ensure “that the term ‘sponsored’ is defined to include being identified in a nomination under section 140GB of the Act so that paragraph 338(2)(d) of the Act applies to visas within the enforceable sponsorship framework in Division 3A of Part 2 of the Act”. Division 3A of the Migration Act includes s.140GB of the Migration Act.
[45] See s.140A of the Migration Act and reg.2.56(k) of the Migration Regulations. The prescribed criteria under s.140GB(2) of the Migration Act for approval of a Subclass 457 standard business sponsor are set out in reg.2.72 of the Migration Regulations.
[46] Minister for Immigration and Citizenship v Islam (2012) 202 FCR 46; [2012] FCA 195 (“Islam”).
[47] See the Explanatory Memorandum to the Migration Legislation Amendment (Sponsorship Measures) Bill 2003 (Cth).
Ground 1
In relation to ground 1 the Minister submitted that:
a)the first ground alleges that the letter notifying the first applicant of the Delegate’s Decision was invalid “due to substantial misinformation as to the applicants’ review rights”. Although no particulars are provided in support of this ground, it appears from the First Applicant’s Affidavit that she contends that:
i)she was misled by the Department because the letter dated 2 October 2012[48] informed her that she could apply to the Tribunal for a review of the Delegate’s Decision;[49] and
ii)that she was given similar advice in person by a Departmental officer on or about 18 October 2013;[50]
b)there was nothing misleading in the advice provided in the 2 October 2012 Letter. Whilst the Tribunal may have ultimately found that it did not have jurisdiction to review the Delegate’s Decision, the Delegate’s Decision was a decision which could be reviewed if one of the following conditions existed:
i)the applicant was approved by an approved sponsor at the time the application for review was lodged with the Tribunal; or
ii)the sponsor had sought a merits review of the decision not to approve the sponsor as an approved sponsor;
c)there was no obligation on the Delegate to determine whether any of the above conditions existed at the time of notifying the applicant of her review rights. The Delegate’s only obligation under s 66(2)(d)(i) of the Migration Act was to inform the first applicant whether the Delegate’s Decision could be reviewed; and
d)in any event, even if the first applicant was provided with misleading advice (which the Minister does not concede), this does not establish any jurisdictional error in the Tribunal Decision as “no principle of estoppel can excuse an administrator from performing his or her statutory obligations or permit the administrator to act ultra vires”.[51] Whether or not the first applicant was correctly notified of her review rights was immaterial to the question of whether the Tribunal had jurisdiction in this matter. The Tribunal was correct to find that it did not have jurisdiction in this matter.
[48] “2 October 2012 Letter”.
[49] First Applicant’s Affidavit, para.9.
[50] First Applicant’s Affidavit, para.10.
[51] Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 at 105 per Davies and Branson JJ (“Polat”).
Grounds 2, 3 and 4
In relation to grounds 2, 3 and 4 the Minister submitted that:
a)grounds 2, 3 and 4 variously allege that the Tribunal failed to comply with its obligations under ss.357A(3), 359A and 359C of the Migration Act. These grounds are misconceived as these provisions did not come into operation in circumstances where no “review” is undertaken by the Tribunal.[52] The first applicant also refers to s.424A of the Migration Act but this provision had no relevant application as it applies to matters before the Refugee Review Tribunal;
b)to the extent that the first applicant was owed any common law procedural fairness obligations, the Tribunal gave her a reasonable opportunity to deal with the matters adverse to her interest that it proposed to take into account in exercising its power.[53] The Tribunal’s 7 March 2013 Letter invited the first applicant to comment on the validity of the review application in light of its provisional view that the absence of an approved sponsor, or a valid application seeking review of the decision not to approve the sponsor as an approved sponsor, meant that the Tribunal did not have jurisdiction. This was the significant issue on which the Tribunal Decision in relation to jurisdiction turned.[54] The Tribunal was not required to invite the first applicant to a hearing, or to put its thought processes about its jurisdiction to the applicant for comment;[55]
c)as is evident from paragraph 12 of the First Applicant’s Affidavit, the first applicant deliberately elected not to respond to the invitation in the Tribunal’s 7 March 2013 Letter. It cannot therefore be said that the Tribunal denied the applicants procedural fairness in connection with the Tribunal Decision that it did not have jurisdiction to review the Delegate’s Decision; and
d)to the extent that the first applicant also alleges in ground four that the Tribunal acted unreasonably because it failed to consider that her child is an Australian citizen, this was not a matter that was relevant to whether the Tribunal’s jurisdiction was properly invoked. Nor did the Tribunal have any discretion to review a decision which was not an “MRT-reviewable decision” as defined by s.338 of the Migration Act.
[52] SZEYK v Minister for Immigration & Citizenship [2008] FCA 1940 at paras.34-35 per Bennett J (“SZEYK”).
[53] SZEYK at paras.36-37 per Bennett J.
[54] Cheng v Minister for Immigration & Citizenship [2011] FMCA 461 at para.44 per Barnes FM (“Cheng”).
[55] SZEYK at para.38 per Bennett J.
No jurisdictional error
The Minister submits that for the above reasons there is no jurisdictional error in the Tribunal Decision, and it is therefore a privative clause decision within s.474 of the Migration Act and not amenable to judicial review by this Court.
Consideration
Whether the Tribunal had jurisdiction to review the Delegate’s Decision
A Subclass 457 Visa is a prescribed visa for the purposes of s.338(2)(d) of the Migration Act.[56]. Section 338(2)(d) of the Migration Act provides that:
[56] Migration Regulations, reg.4.02(1A)(k).
(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:
…
(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.
Because Madaffim did not make an application for review of the Delegate’s decision not to approve it as an approved sponsor, s.338(2)(d)(ii) of the Migration Act does not apply in this case.
The question then becomes whether it is a criterion for the grant of the Subclass 457 Visa that the non-citizen (the first applicant) is sponsored by an approved sponsor, where the visa is a temporary visa.
A temporary visa includes a Subclass 457 Visa.[57]
[57] Migration Act, s.30(2).
The criterion for the grant of a Subclass 457 Visa under a standard business sponsorship are set out in cl.457.223(4) of Schedule 2 to the Migration Regulations, which at the relevant time provided that:
(a)either:
(i)if the applicant and a business activity specified in the application and relating to the applicant were the subject of an approved business nomination under regulation 1.20H as in force immediately prior to 14 September 2009:
(A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and
(B) the approval of the nomination has not ceased to have effect under subregulation 1.20H(5) as in force immediately prior to 14 September 2009; or
(ii) if a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act:
(A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and
(B) the approval of the nomination has not ceased as provided for in regulation 2.75.
It is a criterion, in the relevant sense,[58] for the grant of a Subclass 457 Visa that the first applicant be sponsored by an approved sponsor, as referred to in cl.457.223(4)(a)(i)(A) and (ii)(A) of Schedule 2 to the Migration Regulations.
[58] Islam FCR at 53 per Robertson J; FCA at para.38 per Robertson J.
Did the first applicant have an approved sponsor? The only sponsor relied upon was Madaffim. Madaffim’s application to be an approved sponsor was refused by the Delegate. Consequently, the first applicant could not have an approved nomination by a standard business sponsor if, as here, the sponsor relied upon was Madaffim. There was therefore, as a matter of fact, no approved sponsor for the purpose of meeting the criterion for the grant of a Subclass 457 Visa. Consequently, the first applicant did not meet the criterion for the grant of a Subclass 457 Visa.
The provisions of the Migration Act make it clear that it is only those decisions which are MRT-reviewable decisions which are reviewable by the Tribunal. Section 338 of the Migration Act sets out which decisions are MRT-reviewable decisions, and as a consequence of not meeting the relevant criterion for a visa under s.338(2)(d) of the Migration Act, the Tribunal was correct to find that the Delegate’s Decision was not an MRT-reviewable decision.[59] Section 347(2)(a) of the Migration Act relevantly provides that an application for review may only be made by the non-citizen (the first applicant) if the MRT-reviewable decision is covered by s.338(2) of the Migration Act. In this case for the reasons set out the Delegate’s Decision was not an MRT-reviewable decision. In respect of an application properly made under s.347 for review of an MRT-reviewable decision, the Tribunal must review the decision.[60] That mandatory obligation did not arise in this case because the decision was not an MRT-reviewable decision.
[59] CB 96 at para.7.
[60] Migration Act, s.348(1).
In the circumstances, the Tribunal was correct to determine that it did not have jurisdiction to deal with the first applicant’s application for review of the Delegate’s Decision. There is, therefore, no jurisdictional error in the Tribunal Decision determining that it did not have jurisdiction to review the Delegate’s Decision. That is a sufficient conclusion, of itself, to warrant dismissal of the application.
Ground 1
This Court’s role on judicial review is limited to a review of the Tribunal Decision.[61] Judicial review by this Court does not entail a review of the Delegate’s Decision.[62] Thus, insofar as ground 1 is a complaint about the Delegate’s Decision it is about a matter in respect of which this Court has no jurisdiction. In any event, the information provided to the first applicant, either directly or indirectly, was not misleading, because the Delegate’s Decision was capable of review, if:
a)the first applicant had an approved sponsor and a nomination at the time the application for review of the Delegate’s Decision was made to the Tribunal; or
b)Madaffim had lodged an application with the Tribunal for review of the decision by the Delegate not to approve it as a standard business sponsor.
[61] Migration Act, ss.474 and 476.
[62] SZSJM v Minister for Immigration & Border Protection [2013] FCA 1260 at para.4 per Katzmann J.
The information contained in the 7 March 2013 Letter was therefore not incorrect. The potential for a successful review lay, at least in part, in the hands of the first applicant, for if she had an approved sponsor by the time she had made the application for review to the Tribunal then it is highly likely that she would have obtained a favourable review by the Tribunal. It is not evident that she took any steps to achieve such an outcome.
Ground 1 is not a proper ground of judicial review, as it seeks to have this Court review a matter beyond the jurisdiction of the Court to determine. Further, and in any event, the factual content of the allegations in ground 1 cannot be made out. Ground 1 is therefore not made out.
Ground 2
Ground 2, insofar as it seeks a review of actions of the Delegate, must fail for the same reasons as ground 1, namely, that it is not a ground of judicial review within the jurisdiction of this Court. Further, as in ground 1, the right of review, and a possible favourable outcome to it, lay in the hands of the first applicant, by obtaining an approved sponsor prior to lodging the application for review with the Tribunal.
In the absence of jurisdiction, that is in the absence of an MRT-reviewable decision, there was no decision under review by the Tribunal, and therefore no decision under review giving rise to any obligation under s.357A of the Migration Act, and therefore no obligation to invite the first applicant to appear or give evidence and present arguments relating to her application.[63]
[63] SZEYK at para.34 per Bennett J, and cases there cited: SZHMM v Minister for Immigration & Anor [2008] FMCA 343; SZHOK v Minister for Immigration & Anor [2008] FMCA 1104 and SZEAC v Minister for Immigration & Anor [2007] FMCA 1552.
Ground 2 is therefore not made out.
Ground 3
Ground 3 is based on a wrong premise. The Tribunal Decision did not “overturn” the Delegate’s Decision, but rather determined that the Tribunal did not have jurisdiction to hear the application for review of the Delegate’s Decision because a criterion for the grant of a Subclass 457 Visa had not been met, namely the requirement for a nomination by an approved sponsor.
The reference in ground 3 to s.359A of the Migration Act, and the implicit allegation that the Tribunal did not comply with it, is misconceived: in circumstances where the Tribunal had no jurisdiction, there was no review, and therefore no obligation to comply with s.359A of the Migration Act.[64] Likewise, the reference to s.424A is misconceived, as it refers to decisions of the Refugee Review Tribunal, not the Tribunal.
[64] SZEYK at para.34 per Bennett J, and cases there cited: SZHMM v Minister for Immigration & Anor [2008] FMCA 343; SZJOK v Minister for Immigration & Anor [2008] FMCA 1104 and SZEAC v Minister for Immigration & Anor [2007] FMCA 1552.
In any event, insofar as the ground alleges a failure to comply with s.359A of the Migration Act:
a)because there was no review, s.359A of the Migration Act was not operative, for reasons set out above;
b)the first applicant was given an opportunity to comment in relation to the Tribunal’s view that it might not have jurisdiction to hear the application, and the first applicant did not reply to the Tribunal’s 7 March 2013 Letter;[65] and
c)even if there was non-compliance with s.359A of the Migration Act (assuming that it applies, which it does not), no practical injustice flows from any non-compliance, because, for reasons set out above, the Tribunal had no jurisdiction to review the Delegate’s Decision, and as such arrived at a decision which was correct in law, and which precluded the Tribunal from determining the first applicant’s application for review of the Delegate’s Decision. The opportunity to make submissions to the Tribunal was, and would have been, a hollow opportunity, as no practical injustice flows from the denial of the opportunity in circumstances where the Tribunal had no jurisdiction to determine the application for review of the Delegate’s Decision.[66]
[65] CB 92 and 96 at para.6.
[66] Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 13-14 per Gleeson CJ; [2003] HCA 6 at para.37 per Gleeson CJ; SZEYK at para.39 per Bennett J.
Ground 3 is therefore not made out.
Ground 4
Ground 4 is also misconceived. The Tribunal did not exercise any discretion in this matter, whether under s.359C of the Migration Act, or otherwise. It was not able to do so because it had no jurisdiction, and therefore any exercise of discretion in relation to the application would have been beyond power, but, in any event, it did not exercise any discretion, but rather applied the law to find that it had no jurisdiction.
The “complex circumstances in this case” referred to in ground 4, and the fact that one of the children of the first and second applicants is an Australian citizen, and the alleged unreasonableness in the Tribunal Decision therefore said to arise, are irrelevant considerations. The question for the Tribunal was whether the first applicant had an approved sponsor, and that question was not answered by reference to irrelevant considerations of the kind referred to in ground 4.
Ground 4 is therefore not made out.
Grounds 1 to 4 – estoppel
Grounds 1 to 4 might, arguably, be said to be premised on some notion of estoppel, particularly in relation to the allegations of misleading advice and detrimental reliance adverted to in those grounds, and especially in grounds 1 and 2.
This argument also fails. No principle of estoppel extends the authority of an administrative decision-maker such as the Tribunal, or permits an administrative decision-maker to act beyond power.[67] In Singh & Anor v Minister for Immigration & Anor[68] the Full Court of the Federal Court found that administrative decision-makers did not have the power to alter the timeframe for a review application set down by the Migration Act.[69] The Full Court rejected the suggestion that there could be an estoppel against a statute, and held that administrative decision-makers had no legal authority to vary the prescriptions of the Migration Act or Migration Regulations, even by express agreement with a visa applicant, and that their conduct, if they did so, could not give rise to an estoppel having the effect of extending the relevant timetable.[70]
[67] Polat at 105 per Davies and Branson JJ.
[68] (2011) 190 FCR 552; [2011] FCAFC 27 (“Singh”).
[69] Singh FCR at 565-566 per Keane CJ, Collier and Logan JJ; FCAFC at para.47 per Keane CJ, Collier and Logan JJ.
[70] Singh FCR at 565-566 per Keane CJ, Collier and Logan JJ; FCAFC at paras.47-48 per Keane CJ, Collier and Logan JJ.
In Cheng the Federal Magistrates Court having cited Singh said that:
In other words, the time frame could not be extended by officers of the Department, the Tribunal or indeed by the Court. Even if such an impression had been conveyed to the applicant by a Departmental officer in error, that would not extend the time for review or otherwise give rise to jurisdictional error on the part of the Tribunal (see Singh at [49]).[71]
[71] Cheng at para.55 per Barnes FM.
In the circumstances of this case any argument based on purported estoppel arising from the acts of the Delegate, the Tribunal, or any officer of the Department acting for or in relation to the Delegate or the Tribunal, must therefore fail. Neither the Delegate nor the Tribunal had jurisdiction to deal with the application because there was no approved sponsor. In the absence of jurisdiction, the Delegate’s Decision and the Tribunal Decision that there was no jurisdiction was correct, for reasons set out above. In the absence of jurisdiction in the Tribunal, the Tribunal Decision is not reviewable by this Court and no jurisdictional error arises.
Conclusions and orders
The Court has concluded that none of the grounds of review have been made out, and that the Tribunal Decision is not affected by jurisdictional error. It follows that the application must be dismissed, and there will be an order to that effect. There will also be an order amending the name of the Minister to “Minister for Immigration & Border Protection”.
The Court will hear the parties as to costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 31 January 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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