Dyankov v Minister for Immigration

[2016] FCCA 2167

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYANKOV & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2167

Catchwords:
MIGRATION – Judicial Review of a decision of the Migration Review Tribunal – application for a Business Entry (Class UC) visa – Migration Review Tribunal held no jurisdiction to review decision – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.39

Federal Circuit Court Rules 2001 (Cth), rr.8.02, 44.12

Migration Act 1958 (Cth), ss. 140AA, 140GB, 337, 338(2)(d), 338(2)(d)(i),

Migration Regulations 1994 (Cth), reg. 4.02, Sch.2 cls. 457.223, 475.224, PIC 4013

Cases cited:
Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Independent Commission Against Corruption v Cunneen (2015) 89 ALJR 475
Minister for Immigration and Border Protection v Lee [2014] FCCA 2881

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

First Applicant:

Second Applicant:

Third Applicant:

TIHOMIR ENCHEV DYANKOV

SILVIA KRASIMIROVA DYANKOV

EMANUEL TIHOMIROV DYANKOV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 949 of 2015

Judgment of: Judge Hartnett

Hearing date: 29 April 2016

Delivered at: Melbourne

Delivered on: 24 August 2016

REPRESENTATION

Senior Counsel for the Applicant:	Ms Costello
Junior Counsel for the Applicant:	Mr Guo

Solicitors for the Applicant: Hanna Jackson Lawyers

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The application is dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $6,825.

3. The First Respondent serve upon the Applicants the affidavit of Aaron Michael Day affirmed 24 August 2016 within 7 days hereof together with any submissions as to the costs reserved on 14 August 2015.

4. The Applicants file and serve any submissions and/or affidavits they wish to rely on within 7 days thereafter.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 949 of 2015

TIHOMIR ENCHEV DYANKOV

First Applicant

SILVIA KRASIMIROVA DYANKOV

Second Applicant

EMANUEL TIHOMIROV DYANKOV

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court was an application filed 4 May 2015 which sought judicial review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) made on 13 April 2015.  The Tribunal determined that it did not have jurisdiction to review a decision of a delegate of the Minister not to grant the First Applicant a Temporary Business Entry (Class UC) visa (‘the visa’).

2. The grounds of application were as follows:-

   “1. The Tribunal’s Decision was affected by jurisdictional error.

   2. The Tribunal failed to exercise its jurisdiction by deciding, wrongly, that it did not have jurisdiction under s.338(2)(d)(i) to determine the application on its merits.

   3. The Tribunal erred in construing s.338(2)(d)(i) by interpreting “sponsored by an approved sponsor” to mean there had to be an approved nomination in force.

   4. The Tribunal erred by not finding that the primary applicant was sponsored by [an] approved sponsor under s.338(2)(d)(i) at the time of his application to the Tribunal when in fact, at the time of the Tribunal application:

   a. he was sponsored by Sireb Pty Ltd (known as Malvern Hand Wash) (“the Sponsor”);  and

   b. he had been nominated by the Sponsor (although the nomination had been refused on 24 October 2014).

   Particulars:

   i.   On 3 July 2014:

   1. the Sponsor applied for approval as sponsor;

   2. the Sponsor applied for approval of its nomination of the applicant;  and

   3. the main applicant applied for the relevant visa.

   ii. On 28 July 2014, the Sponsor was approved as a standard business sponsor.

   iii. On 24 August 2014:

   1. the Sponsor’s application for approval of its nomination of the main applicant was refused;  and

   2. the main applicant’s visa application was refused.

   iv. On 5 November 2014, the applicants applied to the Tribunal to review the delegate’s visa refusal decision.

   5. The decision applied by the Tribunal, Minister for Immigration and Border Protection v Lee (2014) FCCA 2881, is wrong in law.”

3. The Applicant relied upon an affidavit of Ms Melinda Anne Jackson, Solicitor, affirmed on 4 May 2015 (which annexed a copy of the Second Respondent’s decision record) and an outline of submissions dated 2 March 2016. 

4. The First Respondent seeks dismissal of the application as set out in a response filed 5 June 2015 and seeks costs upon any such dismissal. 

5. Tendered in evidence by the First Respondent was correspondence from the Department of Immigration and Border Protection of 28 July 2014 notifying the sponsor, S.I.R.E.B Company Pty Ltd ATF DA Beris Family Trust (‘Sireb Pty Ltd’), that the company’s application for approval as a business sponsor had been approved on 28 July 2014, for the period 28 July 2014 to 28 July 2017. There was also before the Court the evidence as contained in the Court Book filed in the proceedings.

6. The First Respondent contends the Tribunal was correct in finding that it did not have jurisdiction in the matter. The First Respondent relied upon an outline of submissions dated 10 March 2016.  Further, the First Respondent relied upon an affidavit affirmed by Katherine Nicole Hooper on 3 February 2016.  Annexed to that affidavit is a true copy of the nomination refusal decision dated 24 October 2014 with respect to Sireb Pty Ltd.

7. By way of interlocutory application, the Applicant sought the transfer of these proceedings to the Federal Court of Australia.

8. By orders made on 14 August 2015 the Court declined to transfer the proceedings to the superior court, dispensed with a hearing under r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) and listed the application for final hearing on a date to be fixed in March 2016 at 10am for one day with priority. The Court delivered reasons in respect of the refusal to transfer the proceedings from the Court to the Federal Court of Australia pursuant to s.39 of the Federal Circuit Court of Australia Act 1999 (Cth) and r.8.02 of the Rules.

Background

1. The First Applicant in these proceedings is the primary visa applicant. I shall refer to the First Applicant as the Applicant hereafter. The Second and Third Applicants are the secondary visa applicants.

2. On 3 July 2014 the prospective employer, Sireb Pty Ltd (known as Malvern Hand Wash), lodged with the Department of Immigration and Border Protection an application for approval as a standard business sponsor (standard business sponsor application) and an application for the approval of a nominated occupation, being Managing Director (nomination application).

3. On 3 July 2014 the Applicants’ lodged their application for Temporary Business Entry (Class UC) (subclass 457) visas. 

4. On 28 July 2014 Sireb Pty Ltd was approved as a standard business sponsor.

5. On 24 October 2014 the nomination application was refused. On this same day, a delegate of the Minister refused the visa application of the Applicant because he did not meet cl.457.224 of Sch.2 to the Migration Regulations 1994 (Cth) as he did not satisfy Public Interest Criterion 4013 (PIC 4013). The Secondary Applicants’ applications were also refused.

6. On 5 November 2014 the Applicants lodged an application for review by the Tribunal of the above decision of the delegate.  As at the date of lodgement of that application to the Tribunal there was no pending review application lodged by Sireb Pty Ltd in relation to the 24 October 2014 decision to refuse the nomination application. 

7. On 13 April 2015 the Tribunal concluded that it had no jurisdiction to review the matter. The Tribunal concluded it had no jurisdiction because it considered that it was bound to apply Minister for Immigration and Border Protection v Lee [2014] FCCA 2881 (‘Lee’).

The Tribunal’s decision

1. The Tribunal correctly established in paragraph 2 of the Tribunal’s Statement of Decision and Reasons dated 13 April 2015 (‘the Decision Record’) the following:-

   “2. The Tribunal’s jurisdiction arises under s.348 of the Migration Act 1958 (the Act) if an application is properly made under s.347 for review of an MRT-reviewable decision. Section 338 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are MRT-reviewable and the circumstances in which they are reviewable. A decision to refuse a sub class 457 visa application made by an onshore visa applicant is a MRT-reviewable decision under s.338(2)(d) as it is a criterion for the grant of the visa that the applicant is sponsored by an approved sponsor, and it is a prescribed temporary visa. In addition, however, a decision to refuse a subclass 457 visa application is only a MRT-reviewable decision where the applicant is “sponsored by an approved sponsor” at the time the review application is made as required by s.338(2)(d)(i) or there is a pending application for review of a decision not to approve the sponsor at the time the review application is made as required by s338(2)(d)(ii).”

2. With respect to s.338(2)(d)(i) of the Migration Act 1958 (‘the Act’), the Tribunal found the sponsor’s nomination application had been refused and, therefore, that the Applicants’ were not identified in an approved nomination of an occupation as at the date of their Tribunal review application. Applying Lee, the Tribunal found the decision was not MRT reviewable under s.338(2)(d)(i) of the Act. It is that conclusion that was challenged by the Applicants in these proceedings.

3. As succinctly put by Counsel for the First Respondent this application and the Tribunal’s Decision Record present the issue for determination by the Court as being:-

   “Whether an applicant is “sponsored” for the purpose of s 338(2)(d)(i) of the Act in circumstances where he or she is identified on an application for an approved nomination under s 140GB of the Act but which application has been refused by the Minister and is not subject to merits review.”[1]

   [1] First Respondent’s Outline of Submissions filed on 10 March 2016 at [2.1].

Consideration

1. At the relevant time, under cl.457.223 of Sch.2 to the Regulations it was a criterion for the grant of the visa that the Applicant be subject to an approved occupation nomination under s.140GB of the Act:-

   “(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; and

   (iii) the approval of the nomination has not ceased as provided for in regulation 2.75;…”

2. Section 140GB of the Act was in the following terms:-

   “140GB Minister to approve nominations

   (1) An approved sponsor may nominate:

   (a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

   (i) the applicant or proposed applicant’s proposed occupation; or

   (ii) the program to be undertaken by the applicant or proposed applicant; or

   (iii) the activity to be carried out by the applicant or proposed applicant; or

   (b) a proposed occupation, program or activity.

   (2) The Minister must approve an approved sponsor’s nomination if:

   …

   (3) The regulations may establish a process for the Minister to approve an approved sponsor’s nomination.

   …”

3. Section 140GB of the Act falls within Sub-div. B of Div. 3A of Part 2 of the Act. Division 3A is headed “Sponsorship” and Sub-div. B is headed “Approving sponsors and nomination”. The purposes of Div. 3A is set out in s.140AA of the Act and includes:-

   “…

   (a)  to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages;

   …

   (c)  to balance the objective of ensuring employment and training opportunities for Australian citizens and Australian permanent residents with that of upholding the rights of non-citizens sponsored to work in Australia under the program;

   (d)  to impose obligations on sponsors to ensure that:

   (i)  non-citizens sponsored to work in Australia under the program are protected; and

   (ii)  the program is not used inappropriately;

   …”

4. Section 338(2)(d) of the Act was at the relevant time 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.

   …”

5. The definition of “sponsored” under s.337 of the Act, was given the same meaning as in the Migration Regulations 1994 (Cth) (‘the Regulations’). Regulation 4.02 relevantly provided as follows:-

   “(1AA) For section 337 of the Act, sponsored includes being identified in a nomination under section 140GB of the Act.

   (1A) For paragraph 338(2)(d) of the Act, the following visas are prescribed:

   …

   (k)  a Subclass 457 (Temporary Work (Skilled)) visa;

   …”

6. It was not in dispute that Sireb Pty Ltd was an approved sponsor at the relevant time. Nor was it disputed that the Applicant did not fall within s.338(2)(d)(ii) of the Act. The issue before the Court was whether the Applicant fell within s.338(2)(d)(i) by virtue of Sireb Pty Ltd having applied for approval of a nomination of a proposed occupation for the Applicant under s.140GB of the Act. The Applicant argued that by virtue of Sireb Pty Ltd seeking approval of its nomination under s.140GB of the Act, the Applicant thereby became “sponsored” by Sireb Pty Ltd, even though Sireb Pty Ltd’s application for approval of the nomination identifying the Applicant had been refused. Sireb Pty Ltd had also not sought to have the decision made under s.140GB, reviewed.

7. Counsel for the Applicants’ submitted that the definition of “sponsored” does not purport to restrict the plain English meaning, but rather, to extend it. Thus, “sponsor” should include the ordinary meaning of the word, being ‘to promise, vouch, or answer for’, or to ‘make himself or herself responsible for another’.[2] The emphasis, it was argued, is on the person providing the promise or assuming the responsibility – not a third party’s approval of that promise or responsibility. The Applicant argued that:-

   “Thus, it is sufficient for a person to be identified by a sponsor in a nomination application in order to be “sponsored”. There is no requirement for that nomination application to have been approved.”[3]

   [2] Macquarie Concise Australian Dictionary (6^th ed, 2013); Australian Concise Oxford Dictionary (5^th ed, 2009).

   [3] Outline of Submissions for the Applicant dated 29 February 2016 at [20].

8. Counsel for the First Respondent submitted that the definition of “sponsored” has a narrower meaning than the dictionary meaning relied upon by the Applicants, and that when construing legislation the meaning of words was governed not only by the text, but also the context in which words sit and the purpose of the provision.[4] Counsel for the First Respondent submitted that to be “sponsored by an approved sponsor”, an applicant needed to be subject to an approved nomination under s.140GB of the Act or, at the least, be subject to a pending process for such approval, either because the Minister is yet to make a decision on a nomination under s.140GB of the Act, or because an adverse decision under s.140GB of the Act was subject to a pending review by the Tribunal.[5] Absent either of those circumstances, any nomination by an approved sponsor under s.140GB of the Act had no continuing operation and it followed such an applicant could not be described as being ‘sponsored’ for the purposes of the Act.

   [4] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381-382 [69]-[71]; [1998] HCA 28; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 47-48 [51]; [2009] HCA 41; Independent Commission Against Corruption v Cunneen (2015) 89 ALJR 475 at 487-489 [57], [62]; [2015] HCA 14.

   [5] Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 [106].

9. The Court has considered the decision of the Full Court of the Federal Court of Australia in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 (‘Ahmad’). Upon that consideration the Court finds that s.338(2)(d)(i) is not satisfied on the facts of this case where, at the time of the application for review of the visa decision, the Applicant had previously been identified in a nomination, the nomination decision was adverse, and an application for review of that decision had not been made by the Applicant.[6]   

   [6] Ibid at [113].

10. The Court in particular refers to the following parts of the judgment of Full Court of the Federal Court of Australia in Ahmad:-

    “95. In our opinion, the starting point must be whether, within the meaning of s 338(2)(d), it is a criterion for the grant of the visa that the non-citizen, Mr Ahmad, “is sponsored by an approved sponsor”.

    96. It was common ground between the parties that being “sponsored by an approved sponsor” is such a criterion. Clause 457.223(1) of Sch 2 to the Migration Regulations confirms that this is so, as a criterion to be satisfied at the time of decision. It may be noted that the requirement relates, in part, to a nomination of an occupation in relation to the applicant approved under s 140GB and that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved: cl 457.223(4)(a)(i) and (ii).

    97. The next question is the meaning of the words “sponsored by an approved sponsor” in s 338(2)(d)(i).

    98. The definition of the word “sponsored” in s 337, which applies to s 338 (see [34] above), picks up the meaning of the word “sponsored” in the regulations. Regulation 4.02(1AA) states that for s 337, sponsored includes being identified in a nomination under s 140GB. It follows that “sponsored by an approved sponsor” in s 338(2)(d)(i) includes not only “approved sponsor” as defined in s 5(1) of the Migration Act (relevantly, a person who has been approved by the Minister under s 140E) but also includes, by virtue of reg 4.02(1AA), being identified in a nomination under s 140GB.

    99. Turning to s 338(2)(d)(ii), the expression “decision not to approve the sponsor” includes both the approval of the sponsor under s 140E and the approval of the nomination under s 140GB.

    …

    105. Thus we accept Mr Ahmad’s submission that it is sufficient that at the time of the making of the application for review of the visa decision there is pending an application for review in respect of an adverse nomination decision.

    106. At the time Mr Ahmad was refused a subclass 457 visa, he was “sponsored by an approved sponsor” in that his approved sponsor had nominated him in its nomination application; although that nomination application had been refused, his sponsor had applied to review that decision, and the review was pending.

    …

    111. In relation to the decision of the Federal Circuit Court in Lee, it seems clear that it was correctly decided on its facts as the relevant nomination had ceased before the application to the Tribunal for review. We are also of the opinion, however, that the reasoning in [44]-[45] of Lee is incorrect insofar as it was held that there must be an “approved” nomination of an occupation to satisfy s 338(2)(d)(i) as this does not give effect to the terms of reg 4.02(1AA) that for s 337, and thus for s 338, “sponsored” includes being identified in a nomination under s 140GB.

    112. In relation to the decision of the FCCA in Kandel, since it appears the applicant was identified in a nomination under s 140GB and it was lodged prior to the time of the lodging of the application to review the decision to refuse to grant the visa to the non-citizen, s 338(2)(d)(i) was satisfied, as held by Judge Street at [12].

    113. Although it is unnecessary to decide, we indicate that we would not be disposed to accept the broader submission put by Mr Jones that s 338(2)(d)(i) is satisfied where, at the time of the application for review of the visa decision, the visa applicant had previously been identified in a nomination, even if the nomination decision were adverse (and an application for review of that decision had not been made) or the nomination had by then lapsed.”[7]

    [7] Ibid at [95] - [99], [105] – [106], [111] – [113] .

1. The application shall be dismissed and costs follow the event.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 24 August 2016