Farooq v Minister for Immigration and Citizenship

[2008] FCA 946

FEDERAL COURT OF AUSTRALIA

Farooq  v Minister for Immigration & Citizenship [2008] FCA 946

MUHAMMAD FAROOQ v MINISTER FOR IMMIGRATION & CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

NSD 180 OF 2008

SPENDER ACJ
20 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 180 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MUHAMMAD FAROOQ
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER ACJ
DATE OF ORDER:	20 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 180 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MUHAMMAD FAROOQ
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER ACJ
DATE:	20 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Farooq Muhammad is a citizen of Pakistan.  On 17 August 2004, he lodged an application for a temporary Business Entry Class (UC Visa) with the Department of Immigration and Citizenship.  There was some issue before the delegate concerning whether the appellant’s application was valid.  Eventually, a delegate of the first respondent found that the application was valid; however, the delegate refused the application on 19 October 2004 on the basis that the appellant did not satisfy any of the relevant subclauses for the Sub-Class 457 Visa for which he had applied.

2. On 7 December 2004, the appellant applied to the Migration Review Tribunal (the Tribunal) for a review of that decision. 

3. On 8 March 2005, the Tribunal wrote to the appellant advising him that the application for review had not been lodged within time, and therefore the application was “ineligible”. 

4. On 7 June 2006, the Federal Magistrates Court quashed the Tribunal’s decision and remitted the matter to the Tribunal for reconsideration. 

5. On 27 July 2006, the Tribunal wrote the appellant informing him that on the Tribunal’s initial assessment, the refusal of his visa was not reviewable within the terms of s 338 of the Migration Act 1958 (Cth) (the Migration Act). The appellant responded to this request by providing further information through his migration agent.

6. On 27 September 2006, the Tribunal handed down its decision, in which it found that it did not have jurisdiction to review the decision of the delegate.

7. The grounds of appeal before this Court have really not been pressed, in the terms in which they are expressed.  Those grounds are that the Federal Magistrate erred in that he ought to have found the delegate’s decision to dismiss the application was unlawful, and in that before any dismissal, the delegate ought to have given the appellant the option of presenting a new sponsor, or of arranging for a new sponsor to be presented.  A further ground is that the appellant had a reasonable and proper expectation that he would be afforded such an opportunity.

8. Before Nicholls FM, the appellant did argue, as part of the submission that the Tribunal had jurisdiction, that the Minister had an obligation to inform the appellant that the proposed sponsor’s application had been refused, therefore leaving the appellant without a sponsor. 

9. There is the further point, in the grounds to this Court, that there was a legitimate expectation that he would be informed of that development.  That aspect of the matter was not raised below, and it seems to me that it ought not to be able to be pursued by the grant of leave.

10. The question before Nicholls FM was whether there was jurisdiction to make the decision, and the question of whether there was a reasonable expectation was not raised at that point. Not having argued this point previously, it is not right that the appellant should be permitted to argue it here.

11. Mr David Nelson, who appears for the appellant in this Court, pursued, which is, essentially, a very short point.  His claim is that honest administration required the Tribunal not to dismiss the appellant’s application for want of jurisdiction because there was no sponsor, but to adjourn the making of such decision until it had informed the appellant of that circumstance, and given him an opportunity of finding a further sponsor. 

12. There are difficulties about the prosecution of such a claim, having regard to the history of the grounds that were argued in the Tribunal and before Nicholls FM.   

13. The Tribunal held that the appellant did not satisfy s 338(2)(d) of the Migration Act, and therefore the decision of the delegate was not a reviewable one. That subparagraph specifies that a decision can be reviewed only where, if the appellant’s visa requires a sponsor, the appellant is sponsored by an approved sponsor. The Tribunal found, and the appellant accepts, that the appellant did not have such a sponsor at the relevant time.

14. It was argued below by the appellant that the Tribunal had jurisdiction by virtue of s 338(5) of the Migration Act. That section provides:

    (5)      A decision to refuse to grant a non-citizen a visa is an

    MRT-reviewable decision if:

    (a)the visa is a visa that could not be granted while the non-citizen is in the migration zone; and

    (b)the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:

    (i)        an Australian citizen; or

    (ii)       a company that operates in the migration zone; or

    (iii)a partnership that operates in the migration zone; or a partnership that operates in the migration zone;

    (iv)      the holder of a permanent visa; or

    (v)       a New Zealand citizen who holds a special category visa.

15. It was argued below that s 338(5)(a) of the Migration Act was satisfied in the case of the appellant because his visa application was invalid. The visa, as a consequence, could not be granted at all, regardless of whether the appellant was inside or outside Australia.

16. Both the Tribunal and the Federal Magistrate rejected this argument and, in my judgment, they were right to do so.  In any event, it is not pressed by Mr Nelson before this Court. 

17. The position is that the visa applied for was one which normally could be applied for from within the migration zone. Section 338(5) is directed to the location of the applicant with respect to a particular class of visa, for which the applicant had applied.

18. The section deals with the circumstances relating to the grant of a visa, not to the validity or invalidity of a particular application for a visa. Section 338(5)(a) focuses on the type of visa that is required for a decision to be reviewable by the MRT. It is not concerned with whether a particular visa application has the capacity for success or otherwise.

19. Accordingly, s 338(5) does not confer jurisdiction on the Tribunal. So much seems to be acknowledged by Mr Nelson in that point not being pursued.

20. The ground that is pressed requires consideration of the chronology applicable to Mr Farooq’s application: 

    (a)On 17 August 2004, the appellant applied for a subclass 457 visa.  That application referred to a sponsoring employer. 

    (b)On 1 September 2004, the sponsoring employer was informed that its application to sponsor the appellant was not valid as the cheque the employer had presented to accompany the application had been dishonoured. 

    (c)On 9 September 2004, the sponsoring employer presented a payment which was accepted.

    (d)On 18 October 2004, the sponsoring employer withdrew its application for sponsorship.

    (e)On 19 October 2004, the delegate refused the appellant’s application on the basis that it did not satisfy cl 457.223(4) of Sch 2 to the Migration Regulations 1994 (Cth), which required the applicant to be nominated by an employer who was an approved business sponsor.

21. The short point pressed by counsel for Mr Farooq is that there was an obligation on the Tribunal in those circumstances to inform Mr Muhammad Farooq that his proposed sponsor had withdrawn, and not to make the decision which it made without further action.  This appeal to what is said to be pure and honest administration depends legally on a requirement that there be an obligation on the Tribunal to act as Mr Nelson indicates it should have. 

22. No basis for any such obligation can be identified and, while the scenario proposed may have been followed by the Tribunal, in my judgment there was no legal obligation on the Tribunal so to act. 

23. Legally, the position was that the application lacked one of the necessary integers for its success, and there was no jurisdiction in the Tribunal to grant the application in the absence of a valid approved sponsor. 

24. While one consequence of that decision was to restrict the ability of Mr Farooq to make a further application, the existence of that circumstance does not require the Tribunal to hold its hand, so to speak.  It would have been competent for the Tribunal so to do, but, in my judgment, there was no legal obligation for it so to do.  The source of any such obligation has not been identified.  In my judgment, there is, in fact, no obligation so to have acted.  It is perhaps unfortunate that the decision of the delegate of the Minister was made without  advice to him that his sponsor had withdrawn sponsorship, with the consequences set out in [13] above.

25. However, legally, the position is plain. There was no jurisdictional error in the Tribunal in making the decision which it did.  There was no jurisdictional error in the decision by the Federal Magistrate in rejecting the claims for review argued before the Federal Magistrates Court. 

26. It may be, in the particular circumstances of this case, that should Mr Farooq be able to demonstrate, that there is a sponsor willing and able to sponsor him, the Minister might consider his powers of ministerial intervention conferred by the Act.

27. However, no reason has been shown to impeach the legal correctness of the decision of the Federal Magistrate. 

28. The application for the above reasons has to be dismissed.  The appellant is to pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

I certify that the preceding twenty-eight (28) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Spender.

Associate:

Dated:       2 July 2008

Counsel for the Appellant:	Mr D Nelson
Counsel for the Respondents:	Mr K Morgan
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	20 May 2008
Date of Judgment:	20 May 2008