Eisele v Minister for Immigration

[2014] FCCA 677

FEDERAL CIRCUIT COURT OF AUSTRALIA

EISELE v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 677

Catchwords:
MIGRATION – Decision by the Migration Review Tribunal that it lacked jurisdiction to deal with application for review – meaning of ‘non-privative clause decision’ – claimed breach of Disability Discrimination Act 1992 (Cth) and Sex Discrimination Act 1984 (Cth) by delegate – no ‘MRT-reviewable decision’ to attract the jurisdiction of the Migration Review Tribunal – application dismissed.

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 6, 8

Commonwealth of Australia Constitution Act 1900 (Cth), s.75(v)

Disability Discrimination Act 1992 (Cth)

Federal Circuit Court of Australia Act 1999 (Cth), s.18

Migration Act 1958 (Cth), ss.5, 5E, 234, 334, 336, 338, 347, 348, 349, 351,

474, 476, 477

Migration Regulations 1994 (Cth), reg.1.03, Part 457, Sch.2, cl.457.223
Racial Discrimination Act 1975 (Cth), s.10
Sex Discrimination Act 1984 (Cth)

Zi Pei Shi v the Minister for Immigration and Citizenship (2011) 123 ALD 46

Applicant: DR PATRICIA EISELE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 825 of 2013

Judgment of: Judge Whelan

Hearing date: 4 March 2014

Date of Last Submission: 4 March 2014

Delivered at: Melbourne

Delivered on: 8 April 2014

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Mr Knowles

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.

2. The Amended Application filed 31 January 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 825 of 2013

DR PATRICIA EISELE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the Applicant Dr PATRICIA EISELE

   
   

   (“the Applicant”) under s.477(1) of the Migration Act 1958

   
   

   (Cth) (“the Act”) for judicial review of a decision of the

   
   

   Migration Review Tribunal (“the Tribunal”) made on 7 May 2013 and handed down on 8 May 2013. The Tribunal, in its decision, determined that it did not have jurisdiction to deal with the application for a review of a decision of a delegate of the Minister not to grant the Applicant a temporary business visa.

2. The Applicant seeks the following orders:

   An order that the decision of the tribunal or Minister be quashed.

   1.  The decision made by the Second Respondent, member of the Migration Review Tribunal or the matter remitted to the Tribunal for new hearing.

   2.  Applicant to get a new hearing date at MRT.

   3.  Set aside the cost.

   4.  Any further relief.

   5.Applicant to have the possibility of review by the Minister for Immigration and Border Protection.

   6.  Minister to substitute a more favourable decision.[1]

   [1] Amended Application of Dr Patricia Eisele filed 31 January 2014, at p.3.

Background

1. The Applicant is a citizen of the United States of America. She has been in Australia since 2001.

2. On 21 May 2012, the Applicant applied for a Temporary Business Entry (Class UC) visa, Subclass 457 - Business (Long Stay) Visa

   
   

   (“the visa”). In the application, the Applicant stated that she would be sponsored by her employer, Mr COLBY NELSON HICKEY

   
   

   (“Mr Hickey”).

3. On 26 June 2012, the delegate was notified that the sponsorship application associated with the Applicant’s visa application was withdrawn.

4. In a letter to the Applicant dated 27 June 2012, a delegate of the Minister gave the Applicant 28 days in which to respond to certain adverse information. In this regard the delegate stated that:

   One of the criteria for the grant of a Subclass 457 - Business (Long Stay) visa is an approved nomination. Your prospective employer, Colby Nelson Hickey, does not have an approved nomination for you at this time. As a result, your visa application is unlikely to be successful.[2]

   [2] Court Book of the First Respondent filed 24 September 2013, at p.33.

5. In an email to the delegate dated 25 July 2012, the Applicant’s representative, Ms MARZENA SIEDLECKA (“Ms Siedlecka”)

   
   

   sought an extension of time for the Applicant to submit “a new nomination and sponsorship form”.[3] In an email to Ms Siedlecka dated

   
   

   26 July 2012, the delegate agreed to allow the Applicant until

   
   

   9 August 2012 to submit new sponsorship and nomination applications.[4] Neither the Applicant, nor Ms Siedlecka, provided any further information to the delegate.

   [3] Ibid, at p.35.

   [4] Court Book of the First Respondent filed 24 September 2013, at p.37.

6. On 15 August 2012, the delegate refused to grant the Applicant the visa due to the absence of an approved business nomination.

7. On 31 August 2012, the Applicant applied to the Tribunal for a review of the delegate’s decision.

8. In a letter dated 25 March 2013, the Tribunal informed the Applicant and Ms Siedlecka of the following:

   For you to make a valid application for review, at the time you lodged your application for review your sponsor either needed to be an approved sponsor, or had made a valid application for review of a decision not to approve the sponsor and the review was pending. I am of the view that your application is not a valid application as it appears that when you lodged your review application your sponsor was not approved and your sponsor had not made a valid application to the Tribunal for review of a sponsorship decision. However, this is a matter which must be determined by a Tribunal Member.

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, within 14 days of receiving this invitation. As this letter has been posted, you will be considered to have received this letter 7 working days after the date of the letter. Your application, with any comments you make, will then be referred to a Tribunal Member to make a decision on your application.

   
   

   If the Tribunal Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.[5]

   [5] Ibid, at p.59.

9. The Tribunal received no response to this letter. On 8 May 2013,

   
   

   the Tribunal handed down its decision, in which it determined that it had no jurisdiction. In this regard, the Tribunal found that the delegate’s decision was not a ‘MRT-reviewable decision’ within the meaning of s.338 of the Act because, when the Applicant applied to the Tribunal on 31 August 2012, she was not sponsored by an approved sponsor and there was no pending review of a decision not to approve a sponsor.

10. On 11 June 2013, the Applicant lodged this application for judicial review.

The grounds of the application

1. The Applicant has set out the following grounds on which she challenges the decision of the Tribunal:

   1.The decision made by the Tribunal Member is contrary to natural justice.

   2.The Tribunal has not applied procedural fairness to the Applicant.[6]

   [6] Amended Application of Dr Patricia Eisele filed 31 January 2014, at pp.3-5.

2. The Applicant also sets out, in the amended application[7] and in

   
   

   written submissions,[8] the basis on which the grounds are advanced.

   [7] Amended Application of Dr Patricia Eisele filed 31 January 2014.

   [8] Written Submissions of Dr Patricia Eisele filed 14 February 2014.

The Applicant’s submissions

1. The Applicant submitted that, in 2012, she started work in the position of education manager for Mr Hickey, a 27 year-old business owner.

   
   

   Mr Hickey is the sole proprietor of his business. He has multiple disabilities and the Applicant was his sole employee. In June 2012,

   
   

   Mr DANIEL HUNTER (“Mr Hunter”), a case officer with the Department of Immigration and Citizenship (“the Department”),

   
   

   acted far outside his legitimate authority, and with excess jurisdiction, in making non-privative clause decisions.

2. The Applicant contends that Mr Hunter communicated materially false and misleading statements that the sponsorship application had been withdrawn by Mr Hickey on 27 June 2012. The Applicant further contends that this decision was made with excess jurisdiction, and was induced, or affected, by fraud. Mr Hunter took direction from

   
   

   Mr Hickey’s adoptive mother, Ms JANE HICKEY (“Ms Hickey”),

   
   

   who was no longer his authorised recipient. Mr Hunter then falsely communicated to the Applicant and to the Department that Mr Hickey had withdrawn the sponsorship application on 27 June 2012.

3. The Applicant submits that there are three issues of relevance before the Court:

   ·First, that the Tribunal had no jurisdiction based on two conditions:

   §There was no sponsorship in place; and

   §There was no Tribunal review of sponsorship under way;

   ·Second, the non-privative clause decision made by Mr Hunter to file papers containing false and misleading information about material particulars; and

   ·Third, disability and sex discrimination on the part of the Department.

4. The Applicant contends that, with respect to the first issue, the Tribunal is limited in what can be reviewed by the two conditions referred to, and it may be that the Court finds, as indicated in the

   
   

   First Respondent’s submissions,[9] that these two conditions were not met, and therefore the finding of no jurisdiction is appropriate under the narrow guidelines of review. However, the two Tribunal review conditions were impacted by Mr Hunter’s decision to alter material information regarding the sponsorship application, which was an offence under ss.234, 334 and 336 of the Act.

   [9] First Respondent’s submissions filed 24 February 2014.

5. The Applicant contends that, with respect to the second issue regarding the conduct and decisions of Mr Hunter, the Court has original jurisdiction pursuant to:

   ·Section 476 of the Act;

   ·Sections 5, 6 and 8 of the Administrative Decisions
   (Judicial Review) Act 1977 (Cth) (“ADJR Act”); and

   ·Section 75(v) of the Commonwealth of Australia Constitution Act 1900 (Cth) (“the Australian Constitution”).

   Although privative clause decisions and purported privative clause decisions are exempt, the Court has jurisdiction to review other decisions. Mr Hunter was not engaged in a privative clause decision under the Act when he engaged in discrimination, made false and misleading statements, and communicated them.

6. The Applicant contends that Mr Hunter’s administrative decisions were decisions to discriminate, in breach of the Disability Discrimination Act 1992 (Cth) (“Disability Discrimination Act”) and the

   
   Sex Discrimination Act 1984

   (Cth) (“Sex Discrimination Act”), and

   
   

   Mr Hunter’s decisions to modify and impair identifying information, and create false written statements, was in breach of ss.234, 334 and 336 of the Act. Mr Hunter did not make a privative clause decision to review sponsorship; Ms Hickey unlawfully withdrew sponsorship.

   
   

   Mr Hunter’s conduct and decision to make false and misleading statements about material particulars breaches multiple subsections of

   
   

   ss.5 and 6 of the ADJRAct, including that his decision was induced or affected by fraud on the part of Ms Hickey.

7. Mr Hickey contacted Mr Hunter, in writing, on 26 June 2012 with specific written instructions to no longer communicate with Ms Hickey and to communicate only with him, with a request for reasonable adjustment based on his disability, so that his sponsorship application of the Applicant would continue to be in effect. Mr Hunter’s decision to change material facts created the impression that Mr Hickey had,

   
   

   in fact, withdrawn the sponsorship application on 27 June 2012.

   
   

   Since Mr Hickey did not withdraw the application, that sponsorship application is lawfully still under a period of open consideration by the Department.

8. With respect to the third issue, that is, discrimination under the Disability Discrimination Act and the Sex Discrimination Act,

   
   

   the Applicant requests that the Court consider the discrimination issues under s.18 of the Federal Circuit Court of Australia Act1999 (Cth) (“Federal Circuit Court Act”) which deals with the Court’s jurisdiction in associated matters. The Applicant asked the Court to consider the discrimination issues as part of Mr Hunter’s conduct in making a

   
   

   non-privative clause decision. The Applicant submits that there are no relevant exemptions under the Disability Discrimination Act, or the

   
   Sex Discrimination Act

   , that would preclude the Court from considering these issues. The Applicant further submits that consideration of discrimination was allowed as a basis for judicial review in the case of Zi Pei Shi v the Minister for Immigration and Citizenship (2011) 123 ALD 46 (“Shi”).

9. Last, the Applicant contends that there are clear statements in

   
   

   ss.234, 334 and 336 of the Act regarding the making of false statements. Mr Hunter, through his actions, enabled fraud, theft and rights violations which had impacted on the Applicant’s ability to live and work in Australia.

10. On 3 July 2012, Mr Hickey filed a 956 form with his migration agent alleging an unlawful withdrawal of the sponsorship application.

    
    

    On 6 July 2012, Mr Hickey’s ability to communicate with anyone, without Ms Hickey’s permission, ended.

The First Respondent’s submissions

1. The First Respondent submits that the Applicant, essentially, concedes that the conditions which are necessary to be satisfied in order for the Tribunal to have jurisdiction may not have been met in this case.

   
   

   That is because, at the time of applying for the review by the Tribunal, there was no approved sponsor. There was an application for approval of a sponsor and there was a withdrawal of that sponsorship.

   
   

   The Applicant contests the validity of that withdrawal. That argument is not, however, relevant to judicial review of the Tribunal’s decision that it did not have jurisdiction. The First Respondent does not concede that the withdrawal of the sponsorship application was unlawful.

   
   

   In any event, it preceded the decision not to grant the visa. The fact is that there was no approval of any sponsorship at the time of the application for review and no pending review of any decision not to approve a sponsorship application. In the submission of the

   
   

   First Respondent, having regard to the terms of s.338 of the Act,

   
   

   there was therefore no ‘MRT-reviewable decision’ and, as a result of that, no jurisdiction on the part of the Tribunal.

2. With respect to what the Applicant referred to as the second issue,

   
   

   the First Respondent submits that the criticism appears to refer to an apparent acceptance by a departmental officer of a document purporting to be a withdrawal of the sponsorship application. The

   
   

   First Respondent drew to the Court’s attention the sponsorship application and the fact that the contact person on the application was, in fact, Ms Hickey. However, putting that to one side, it is not clear what decision is said to have been made by Mr Hunter, such that it would fall for review in this Court.

3. The Applicant appears to rely on an assertion that the action somehow constitutes a non-privative clause decision. The term

   
   “migration decision”

   is defined in s.5 of the Act to mean “a privative clause decision; or a purported privative clause decision; or a
   non-privative clause decision”. The terms “privative clause decision” and “non-privative clause decision” are effectively defined in s. 474 of the Act. The term “purported privative clause decision” is defined in s.5E of the Act and states:

   (1)In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:

   (a)     a failure to exercise jurisdiction; or

   (b)     an excess of jurisdiction;

   in the making of the decision.

4. In other words, it is a decision which, but for jurisdictional error,

   
   

   would be a privative clause decision. A privative clause decision is defined in s.474(2) of the Act. That section states that:

   "privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).[10]

   [10] Migration Act 1958 (Cth), s.474(2).

5. The expression ‘decision’ is defined in s.474(3) of the Act. It is a very broad definition. Section 474(3)(g) of the Act is the broadest reference: “doing or refusing to do any other act or thing”. It is not clear, even in that context, what was done or refused to be done by Mr Hunter.

   
   

   In any event, the jurisdiction of the Court, in relation to privative clause decisions, is that which the High Court has, under s.75(v) of the Australian Constitution, to issue constitutional writs, subject to some limitations.

6. Sections 474(4) and (5) of the Act deal with matters that concern a

   
   

   non-privative clause decision. Section 474(4) of the Act contains a table listing certain decisions which are non-privative clause decisions.

   
   

   Section 474(5) of the Act provides that regulations may be made to specify a decision as a non-privative clause decision. However,

   
   

   Mr Hunter’s conduct, as characterised, does not fall under any of the provisions in s.474(4) of the Act and nor is there any regulation which specifies that that decision is a non-privative clause decision if, indeed, his conduct was to be regarded as constituting a decision.

7. The Applicant, in her submissions to the Court, refers to the Court’s ability to review non-privative clause decisions under the ADJR Act. Section 476(3) of the Act refers to nothing in s.476 affecting any jurisdiction of the Court in relation to non-privative clause decisions under s.8 of the ADJR Act. It is, however, the First Respondent’s position that there is no non-privative clause decision. However one looks at Mr Hunter’s conduct, even if it was a decision, it is not a

   
   

   non-privative clause decision because, as indicated in ss.474(4) and (5) of the Act, the definition of non-privative clause decision is confined to specific exercises of power.

8. Further, s.476(2) of the Act concerns limitations on the Court’s jurisdiction and, in particular, the First Respondent refers to the Court having no jurisdiction in relation to a primary decision. Similarly, the Court lacks jurisdiction with respect to the exercise of power pursuant to the provisions that are listed in s.474(7) of the Act. Among those provisions are the provisions of s.351 of the Act, being the power of the Minister to substitute a more favourable decision for a decision that has been made by the Tribunal.

9. The First Respondent further submits that the Minister’s power to substitute a decision for that of the Tribunal is only enlivened once the Tribunal has completed a review and made a decision under s.349 of the Act. In this case, that stage was never reached because jurisdiction was never enlivened in the Tribunal to conduct a review. In those circumstances, the Applicant is unable to request the Minister to exercise his power under s.351 of the Act.

10. With respect to the claim for application of the

    
    Disability Discrimination Act

    and the Sex Discrimination Act, the

    
    

    First Respondent submits that those matters do not bear on the matters under review and, even if they did, it is not clear how it is

    
    

    said they would. The case of Shi, as referred to by the

    
    

    Applicant, concerned a judicial review of a decision of the Administrative Appeals Tribunal (“AAT”). The Federal Court had regard to the Racial Discrimination Act 1975 (Cth)

    
    

    (“Racial Discrimination Act”) and assessed whether or not the Tribunal, in its construction of the relevant provisions, had construed the provisions in the Act in a way which was counter to s.10 of the Racial Discrimination Act. In this case, the complaint relates not to the decision of the Tribunal, but to the actions of a delegate who is an officer of the Department. If it is a decision, it is a decision of the delegate in the process of determining if the Applicant should be granted a visa. As such, it does not fall for review in these proceedings. It is not clear, in any event, the basis upon which it is put that

    
    

    Mr Hunter contravened the provisions of either of those Acts.

Conclusions

1. The criteria for a Temporary Business Entry (Class UC) visa, Subclass 457 - Business (Long Stay) Visa are set out in Part 457 of Sch.2

   
   

   of the Migration Regulations 1994 (Cth) (“the Regulations”).

   
   

   Clause 457.223(4) of Sch.2 of the Regulations requires that a

   
   

   ‘standard business sponsor’ has nominated an occupation in relation to the Applicant, and that nomination has been approved by the

   
   

   Minister. Regulation 1.03 of the Regulations defines the term

   
   

   ‘standard business sponsor’ to mean an ‘approved sponsor’ of a particular kind. An ‘approved sponsor’ is defined in s.5 of the Act to mean “a person who has been approved by the Minister under section 140E …”.

2. Section 348(1) of the Act provides that the Tribunal must review an ‘MRT-reviewable decision’ if an application is properly made under s.347 of the Act for review of that decision. Section 347 of the Act only has application to an application for review of an ‘MRT-reviewable decision’. Section 338 of the Act sets out the circumstances in which a decision is an ‘MRT-reviewable decision’. Section 338(2)(d) of the Act is the relevant provision in this case. It states:

   (2)A decision … 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.

3. A Temporary Business Entry (Class UC) visa, Subclass 457 -

   
   

   Business (Long Stay) Visa is one of the visas prescribed by the Regulations for the purposes of s.338(2)(d) of the Act.

4. In this matter, the sponsorship application was lodged on 21 May 2012. The business is described as a sole trader with the legal name of

   
   

   ‘Colby Nelson Hickey’. The contact officer for all enquiries is named as Jane Hickey, who gives her title as ‘Administrator’ and who signed the document as the authorising officer.

5. On 26 June 2012, Mr Hickey wrote to Mr Hunter requesting time to provide additional information and stating:

   My mum Jane Hickey has been handling my case but she is ill and unable to continue ….

   Please see the attached statement regarding my disability and direct all future correspondence to me at this email address.[11]

   [11] Court Book of Dr Patricia Eisele filed 31 January 2014, at p.16.

6. On 27 June 2012, the Department (Mr Hunter) wrote to the Applicant advising her that “Your prospective employer, Colby Nelson Hickey, does not have an approved nomination for you at this time”.[12]

   
   

   On 3 July 2012, Mr Hickey appointed Ms Siedlecka as his migration agent. Ms Siedlecka was also appointed by the Applicant as her migration agent. On 25 July 2012, Ms Siedlecka wrote to

   
   

   the Department requesting an extension of time to put “a new nomination and sponsorship form”.[13] An extension was granted until

   
   

   9 August 2012.

   [12] Court Book of the First Respondent filed 24 September 2013, at p.33.

   [13] Ibid, at p.35.

7. On 15 August 2012, Mr Hunter wrote to the Applicant enclosing his reasons for rejecting her visa application.[14] The decision record contained the following statement:

   On 27/06/2012, the sponsorship application corresponding to the applicant’s visa was withdrawn by the applicant’s prospective employer, Colby Nelson Hickey. As the primary applicant’s prospective employer is not an approved standard business sponsor, the nomination application lodged by the primary applicant’s prospective employer was unable to be assessed.[15]

   [14] Ibid, at pp.39-46.

   [15] Ibid, at p.45.

8. There are no documents in the Court Book,[16] other than this statement, indicating that the sponsorship application was withdrawn. It was the Applicant’s understanding that the withdrawal of the application occurred in a telephone conversation between Ms Hickey and

   
   

   Mr Hunter.

   [16] Court Book of the First Respondent filed 24 September 2013.

9. I am satisfied that, in making the decision that it had no jurisdiction to review the decision of the delegate not to grant the temporary visa, the Tribunal made no jurisdictional error. The Tribunal correctly identified that, at the time the Applicant lodged the application for review,

   
   

   the Applicant was not sponsored by an approved sponsor and there was no pending review by the employer of a decision not to approve the employer as a sponsor. In those circumstances, there was no

   
   

   ‘MRT-reviewable decision’ to attract the jurisdiction of the Tribunal.[17]

   [17] Migration Act 1958 (Cth), s.338(2)(d).

10. It seems to me that the real complaint of the Applicant relates to the acceptance by the delegate of the withdrawal of the sponsorship application by Ms Hickey. The jurisdiction of the Court under the Act is limited to a review of the Tribunal’s decision. Judicial review does not extend to a review of the delegate’s decision as this is a primary decision under s.476(2)(a) of the Act. In this case, in any event,

    
    

    the ‘decision’ of the delegate was to reject the visa application.

11. The Applicant sought to rely on the provisions of s.476(3) of the Act which provides that nothing in s.476 of the Act affects any jurisdiction the Court may have in relation to non-privative clause decision under s.8 of the ADJR Act. Section 8(2) of the ADJR Act vests jurisdiction in the Court to hear and determine applications made to the Court under that Act.

12. The jurisdiction of the Court, with respect to s.476(3) of the Act,

    
    

    is expressly limited to ‘non-privative clause decisions’. Section 474(6) of the Act provides that a decision mentioned in s.474(4), or specified (whether by reference to a particular decision or class of decisions)

    
    

    in regulations made under s.474(5) of the Act, is a non-privative clause decision. A decision by a delegate to reject a visa application clearly does not fall within any category of decision covered by s.474(4), or by regulations made under s.474(5) of the Act. Further, I am not able to find that a decision to accept a withdrawal of a sponsorship application could fall within either of those provisions.

13. The Applicant further contends that the decision of Mr Hunter was a breach of the Disability DiscriminationAct and the Sex Discrimination Act. She relied on the decision in Shi to submit that the Court could consider that matter under the accrued jurisdiction conferred by s.18 of the Federal Circuit Court Act. The case of Shi concerned a decision by the AAT in which the AAT, in its reasons for decision, referred to the applicant’s ties to the Australian community appearing to be ‘ethnically based’. The Court found that the effect of s.10 of the Racial Discrimination Act was to require the Court to construe the Act as not permitting decision-making processes in which ethnicity is an integer.

14. There is nothing in this case to suggest that the decision under review, that is, the decision of the Tribunal, involved either discrimination on the basis of disability or sex. If either of those was true of the

    
    

    decision-making by Mr Hunter, and there is no evidence before this Court to establish that they were, then this is not the appropriate proceeding in which to deal with such allegations.

15. There may well be real issues to be tried with respect to how the sponsorship application in this matter came to be withdrawn, but they are not matters which can be dealt with in what is, essentially,

    
    

    a proceeding under the Act for judicial review of a decision by the Tribunal.

16. There is no basis upon which the Court could quash the decision of the Tribunal, or remit the matter to the Tribunal for further hearing. Further, it is not a matter for this Court to make orders about how the Minister exercises power under s.351 of the Act. Section 474(7) of the Act provides that a decision by the Minister under s.351 of the Act is a privative clause decision. Section 476(2)(d) of the Act expressly excludes from the Court’s jurisdiction “a privative clause decision or purported privative clause decision mentioned in subsection 474(7)”. There is, therefore, no basis upon which this Court could grant the relief sought.

17. For these reasons, the amended application in this matter is dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 8 April 2014