Gurung v Minister for Immigration & Border Protection

[2015] FCCA 1855

FEDERAL CIRCUIT COURT OF AUSTRALIA

GURUNG  v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1855

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth) ss.338, 347
Migration Regulations 1994 (Cth) reg.4.02
Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13

Applicant: ANJAN GURUNG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1524 of 2015

Judgment of: Judge Emmett

Hearing date: 6 July 2015

Date of Last Submission: 6 July 2015

Delivered at: Sydney

Delivered on: 6 July 2015

REPRESENTATION

The Applicant appeared in person with the assistance of a Nepalese interpreter.

Solicitor for the Respondents: Ms Nicola Johnson
(Mills Oakley Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1524 of 2015

ANJAN GURUNG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 4 June 2015, the applicant filed an application seeking judicial review of a decision of the Migration Review Tribunal, dated 4 May 2015 and handed down on 5 May 2015 (“the MRT”).

2. On 30 June 2015, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the MRT unless the Court is satisfied that the MRT’s decision is affected by a mistake going to its jurisdiction. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars, and did not, by themselves, disclose an error capable of review by this Court. I further explained to the applicant that where the application does not disclose an arguable case for the relief sought, his application could be dismissed. The applicant confirmed he wished to continue with his application for judicial review of the MRT’s decision.

3. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 2 July 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 2 July 2015.

4. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

5. The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was also given to the applicant, together with a copy of the costs schedule.

6. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

1. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

2. The applicant was unrepresented before the Court this morning, although had the assistance of a Nepalese interpreter.

3. The applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with my directions, or otherwise. 

4. The applicant’s application for judicial review, filed on 4 June 2015, stated the grounds of review as follows:

   “1.    The Tribunal erred in law by stating that the review application before the Tribunal in maintable <sic> only by the sponsor. As per Sec 338 of the Migration Act it is a MRT reviewable decision and can be maintained by the visa applicant

   Particulars

   The Tribunal failed to consider that the applicant was onshore at the time of the decision and hence he is eligible to file a review proceedings before the MRT. He has filed the review application with the time provided by law along with the required documents to lodge a valid review application

   2.  The Tribunal failed to provide adequate opportunity for the applicant and this resulted in miscarriage of justice and has vitiated the procedural fairness.

   Particulars

   The applicant was self represented in the Tribunal proceedings. The Tribunal did not explain to him in detail as to why the applicant being on shore in Australia at the time of decision is not eligible to file a review before the MRT. Further the application was rejected after the payment and lodging of application in August 2015. This has resulted in failure to adhere to the principles of natural justice and the provisions of law resulting in miscarriage of justice.”

5. In its decision, dated 4 May 2015, the MRT found that it lacked jurisdiction to review a decision of a delegate of the first respondent refusing the applicant a Temporary Business Entry (Class UC) visa (“the Delegate”). 

6. The first respondent, in written submissions, accurately summarised the background of this matter and the MRT’s decision, as follows:

   “Background

   2.  On 28 June 2013, the applicant applied for a Subclass 457 visa on the basis of a sponsorship by an approved sponsor, J Souris & M Souris (the sponsor): CB 1-13.

   3.  On 28 May 2014, a delegate of the Minister invited the applicant to comment on information that his prospective employer did not have an approved nomination for the applicant: CB 14-18. The delegate did not receive a response to this invitation: CB 25.9.

   4.  On 25 July 2014, a delegate of the Minister refused to grant the applicant a Subclass 457 visa on the basis that he was not the subject of an approved nomination and therefore did not satisfy cl 457.223(4)(a) of Schedule 2, a prescribed criterion for the grant of the visa: CB 25-27.

   The Tribunal

   5.  On 13 August 2014, the applicant applied to the Tribunal for review of the delegate’s decision: CB 28-29.

   6.  By a letter dated 7 April 2015, the Tribunal sent an invitation to the applicant to comment on the validity of his application: CB 34. The Tribunal received no response to this correspondence: CB 37, par 6.

   7.  By a decision dated 4 May 2015, the Tribunal found it had no jurisdiction to review the delegate’s decision to refuse the applicant a Subclass 457 visa: CB 36-37. It found that the applicant was offshore at the time the visa application was lodged: CB 37, par 2. As a consequence of this, the delegate’s decision was a “MRT-reviewable decision” pursuant to s 338(9) and reg 4.02(4)(l), but an application for review could only be made by the applicant’s sponsor: reg 4.02(5)(k). As the review application had been made by the applicant himself, the Tribunal found that it was not an application properly made under s 347 of the Act and the Tribunal lacked jurisdiction: CB 37, par 7.”

7. I accept as accurate the first respondent’s summary of the relevant legislative scheme, as follows:

   “10. Section 338 defines decisions that are MRT-reviewable decisions and identifies a number of classes of decisions. Section 338(9) also provides that the regulations may prescribe a decision to be a MRT-reviewable decision for the purposes of s 338 of the Act. For the purposes of s 338(9), reg 4.02(4)(l) prescribes a “decision to refuse to grant a Subclass 457 (Temporary Work (Skilled)) visa to a non-citizen” where the non-citizen is outside Australia at the time of the application and the non-citizen was sponsored or nominated by a company or partnership that operates in the migration zone as a MRT-reviewable decision. The relevant provisions of reg 4.02 are extracted in an appendix to these submissions (with emphasis added).

   11. Section 347(2) of the Act identifies persons who may apply to the MRT for review of a MRT-reviewable decision. Section 347(2)(d) provides that if the MRT-reviewable decision is covered by subsection 338(9) of the Act, the person who may apply to the MRT for a review of that decision is “the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection”. For the purposes of s 347(2)(d), reg 4.02(5)(k) relevantly provides that an application for review of a decision mentioned in reg 4.02(4)(l) may only be made by “the sponsor or sponsor or nominator”.

   12.    The Tribunal found (at CB 37, par 2) that at the time the applicant applied for the visa he was offshore. The applicant’s movement records confirm that he departed Australia on 27 June 2013 and returned on 5 July 2013: CB 32. The visa application was lodged on 28 June 2013.  That meant the delegate’s decision was a MRT-reviewable decision covered by reg 4.02(4)(l). Accordingly, the only person who could apply to the Tribunal for review of the delegate’s decision in accordance with reg 4.02(5)(k) was the sponsor that the applicant had identified in his visa application.”

8. The grounds of the application were interpreted for the applicant and the applicant was invited to make oral submissions in support of the grounds.

9. The insurmountable hurdle faced by the applicant this morning in seeking judicial review of the Delegate’s decision is as reflected in the relevant sections and regulations of the Migration Act 1958 (Cth) (“the Act”)  in respect of decisions that are MRT reviewable decisions. 

10. The MRT in its decision record referred to s.347(2) of the Act and reg.4.02(5) of the Migration Regulations 1994 (Cth) (“the Regulations”) which specify who is entitled to apply for review of a MRT reviewable decision. In the case of a MRT reviewable decision in s.338(9) of the Act and reg.4.02(4)(l) of the Regulations, the visa applicant must make his visa application offshore but an application for review may only be made by the sponsor or nominator as provided for in reg.4.02(5)(k) of the Regulations.

11. The first respondent read the affidavit of Sharon Manpreet Sangha, affirmed 2 July 2015 and filed on that date, annexing a copy of a screenshot from the Department of Immigration and Border Protection’s file management system which confirmed that the applicant was offshore at the time the visa application was made. 

12. Ms Sangha’s affidavit also annexes a copy of the decision of the Delegate, dated 20 February 2014, refusing the nomination application made by J. Souris and M. Souris in respect of the applicant. 

13. The MRT found that the sponsors or nominators were J.Souris and M.Souris, and the applicant does not suggest otherwise. 

14. However, the application for review of the Delegate’s decision was made by the applicant rather than the sponsors or nominators. 

15. On 7 April 2015, the MRT wrote to the applicant and informed him that the proper person to seek review of the Delegate’s decision were his sponsors or nominators, rather than himself.  The MRT informed the applicant that in circumstances where he himself made the application for review of the Delegate’s decision, his application was not valid. The MRT invited the applicant to comment and noted that he did not respond to this invitation.

16. The MRT concluded that it did not have jurisdiction in the matter in circumstances where the legislation required that any application for review of the Delegate’s decision could only be made by the sponsors or nominators.  That decision by the MRT would appear to be without error. 

17. The grounds of the applicant’s application for judicial review misunderstand or misconceive the effect of the legislative provisions upon the applicant’s entitlement to make an application for review of the Delegate’s decision.

18. As stated above, the MRT wrote to the applicant and informed him of the difficulty he faced in seeking review of the Delegate’s decision and invited his comments.  The applicant did not respond. In those circumstances, the applicant’s assertion of a denial of procedural fairness would not appear to be able to be made out. 

19. While I make no final decision as to whether or not the MRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the MRT that is capable of establishing jurisdictional error and none is apparent on the face of the MRT decision record. The MRT referred to the relevant law in affirming the decision under review and its findings and conclusions that it had no jurisdiction would appear to be open to it for the reasons it gave.

20. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.

21. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 4 June 2015, should be dismissed with costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  20 July 2015