Ho v Minister for Immigration

[2016] FCCA 3292

FEDERAL CIRCUIT COURT OF AUSTRALIA

HO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3292

Catchwords:
MIGRATION – Administrative Appeals Tribunal – skilled (provisional) (Class UC) 457 visa – Tribunal having no jurisdiction – no jurisdictional error.

Legislation:
Migration Act 1958 ss.140GB(1), 338(2)(d)

Cases cited:
Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365; [2015] FCAFC 182
Kandel v Minister for Immigration and Border Protection [2015] FCCA 2013

Applicant: THI BICH TRAM HO

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1717 of 2015

Judgment of: Judge Riley

Hearing date: 6 December 2016

Date of last submission: 6 December 2016

Delivered at: Melbourne

Delivered on: 6 December 2016

REPRESENTATION

Counsel for the applicant: In person

Solicitors for the applicant: None

Counsel for the first respondent: Bromley Hornsby

Solicitors for the first respondent: Sparke Helmore Lawyers

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore Lawyers

ORDERS

1. The application filed on 24 July 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1717 of 2015

THI BICH TRAM HO

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The decision of the Tribunal was dated 9 July 2015.  The Tribunal decided that it did not have jurisdiction to consider an application for review made to it. 

2. The applicant had applied for a Skilled (Temporary) subclass 457 visa. The Tribunal said that its jurisdiction in such matters arose under s.338(2)(d) of the Migration Act 1958 (“the Act”).  That subsection said that a decision was reviewable by the Tribunal in the following circumstances:

   … 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. The Tribunal wrote to the applicant by letter dated 19 June 2015 via her migration agent, inviting the applicant to comment by 3 July 2015 on the Tribunal’s preliminary view that it did not have jurisdiction on the basis that the application to it was not valid.  That was said to be because, at the time of the application to the Tribunal, the applicant did not have an approved sponsor and there was not, at the time of the application to the Tribunal, a pending application to review the decision not to approve the sponsorship. 

4. The applicant did not reply to the Tribunal’s correspondence by 3 July 2015 or subsequently. 

5. The Tribunal proceeded to make a decision on 9 July 2015 to the effect that the delegate’s decision was not reviewable by the Tribunal and therefore the Tribunal did not have jurisdiction.

6. The applicant applied to this court within time and the matter was listed for final hearing today.  The applicant was not represented.  She asked the court to examine the matter to see if there was a jurisdictional error. 

7. In her application filed on 24 July 2015, the applicant set out a number of paragraphs under the heading, grounds of application.  However, the statements under that heading amount to a partial history of the matter and otherwise do not identify anything that could be characterised as a jurisdictional error. 

8. The applicant did note in her grounds that her employer wanted to apply for another nomination. However, that could not have made any difference because under s.338(2)(d) of the Act, it was required that there be one of two states of affairs at the time, the application to review was lodged. If the Tribunal had given any more time, it would not have altered the situation at the time of the lodgement of the application.

9. The Minister has pointed out in oral submissions today that, since the Tribunal’s decision, there have been two decisions of courts which potentially have an impact on this matter.

10. In respect of s.338(2)(d)(ii) of the Act, the Minister drew the court’s attention to the decision of the Full Federal Court in Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365; [2015] FCAFC 182 at paragraphs 95 to 101. In that case, there was an application for review of the delegate’s decision pending at the time the application was lodged to review the delegate’s decision. There does not seem to be a comparable circumstance in the present case. At CB116 the history of the applicant’s various applications was set out. It indicates that the applicant’s employer made a number of nominations, all of which were refused, prior to the date of the application to the Tribunal, which was 18 June 2015.

11. The other decision the Minister’s representative drew the court’s attention to was Kandel v Minister for Immigration and Border Protection [2015] FCCA 2013. In that decision, the court accepted the Minister’s submissions to the effect that, in relation to the requirement in s.338(2)(d)(i) of the Act, it was incorrect to say that there must be an approved nomination to satisfy s.338(2)(d)(i).

12. On the contrary, that provision, according to the submissions of the Minister, which were accepted by the court, would also be satisfied if there was a nomination pursuant to s.140GB(1) of the Act, which had yet to be decided at the time of the application to the Tribunal for review. Again, the history at CB116 shows that there was no such nomination in the applicant’s case. Therefore, it follows that the Tribunal decided correctly that it did not have jurisdiction in this case.

13. The Tribunal afforded the applicant natural justice, not by giving a hearing, but by providing a letter to the applicant about the reasons that the Tribunal had formed the preliminary view that it did not have jurisdiction.  As it happens, those reasons have been somewhat overtaken by the authority of this court and the Full Federal Court.  Arguably, it could be said that the applicant was not afforded natural justice on those issues by the Tribunal. 

14. However, the fact is that those issues were matters of jurisdictional fact.  Whether the Tribunal afforded the applicant natural justice or not, the fact remains that the Tribunal did not have jurisdiction.

15. The applicant today has heard the Minister’s submissions about the cases of Ahmad and Kandel.  Also, CB116 was drawn to the applicant’s attention.  She did not seek to dispute anything that the Minister had submitted. 

16. In all the circumstances, it seems to me that there is no option but to affirm the Tribunal’s decision.  It correctly found that it did not have jurisdiction.  Even if there had been a jurisdictional error of a procedural nature, there would be no point in remitting the matter to the Tribunal because the same problem would arise on any review.

17. Consequently, the application filed on 24 July 2015 must be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 16 December 2016

Correction

The first respondent’s name was corrected on the first page of the reasons for judgment.