Jean v Minister for Immigration
[2016] FCCA 1029
•15 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JEAN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1029 |
| Catchwords: MIGRATION – Review of a decision of the Second Respondent – application for a Skilled Business (Long Stay) (Class VC) (Subclass 457) visa – no jurisdiction of the Tribunal to hear the review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.347, 338, 338(2)(d), 338(2)(d)(i), 338(2)(d)(ii), 412 Migration Regulations 1994 (Cth), cls. 456.211, 457.211(b)(ii), 457.223(4)(a), Sch. 3: criterion 3004 |
| Cases cited: Minister for Immigration and Border Protection v Lee [2014] FCCA 2881 |
| First Applicant: | JOSEPH BENOIT LOUIS JEAN |
| Second Applicant: | MARIE NATHALIE LOUIS JEAN |
| Third Applicant: | LARAL DIDIER LOUIS JEAN |
| Fourth Applicant: | ADRIANO BENOIT LOUIS JEAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1755 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 15 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 15 April 2016 |
REPRESENTATION
| The First Applicant: | In Person |
| The Third Applicant: | In Person |
| Counsel for the First Respondent: | Mr Young |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1755 of 2015
| JOSEPH BENOIT LOUIS JEAN |
First Applicant
| MARIE NATHALIE LOUIS JEAN |
Second Applicant
| LARAL DIDIER LOUIS JEAN |
Third Applicant
| ADRIANO BENOIT LOUIS JEAN |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application filed 28 July 2015 by the Applicants seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 7 July 2014 where the Tribunal found that it did not have jurisdiction in the matter.
The grounds of application are as follows:
“1. Tribunal failed to take the facts of application without giving me any sufficient opportunities to justify my claim.
2. Tribunal determined that they have no jurisdiction without following the principle of natural justice, I plead a Court hearing to set aside the tribunal decision.”
As can be seen from the above, no particulars of the grounds of application are pleaded.
By orders made by Registrar Allaway on 20 January 2016, the Applicants were ordered to file and serve any amended application, including any additional grounds of review with complete particulars of each ground and any affidavits, together with written submissions. The Applicants have not amended the grounds of application, provided particulars and nor have they filed any written submissions.
The First Respondent relies upon the response dated 10 August 2015 wherein the First Respondent opposes the making of the orders as sought in the application filed and seeks dismissal of the application, on the basis that the application for judicial review does not establish any jurisdictional error in the decision of the Administrative Appeals Tribunal dated 7 July 2015.
The Court has before it the evidence as contained in the Court Book that has been filed in the proceedings and the Court has also the First Respondent’s written submissions dated 8 April 2016 on which the First Respondent relies.
At the hearing this day, the First Applicant appeared in person. The Third Applicant also appeared and the First Applicant was assisted by an interpreter. The First Applicant handed to the Court a document issued from the Department of Immigration and Border Protection (‘the Department’) dated 5 August 2015, being approval of a nomination form which the Court notes post-dates the Decision Record of the Tribunal of 7 July 2015.
To obtain relief from this Court, the Applicants must show jurisdictional error in the Tribunal’s decision. The application itself and the submissions made this day failed to identify any jurisdictional error. The application is dismissed for the reasons which follow.
Background
On 29 April 2011, the Applicants applied to the Department of Immigration and Citizenship (as it then was)(‘the Department’) for a Skilled Business (Long Stay) (Class VC) (Subclass 457) visa. The Applicants were represented by a migration agent.
On 9 June 2011, the Applicants, via their authorised representative, were sent a letter requesting various documents in support of the visa application. On 5 July 2011 and 8 August 2011, the Applicants provided the Department with various documents in response to the invitation.
On 12 August 2011, the Department provided the Applicants, via their authorised representative, with a letter that stated, relevantly, as follows:-
“…One of the criteria for the grant of a Subclass 457 – Business (Long Stay) visa is an approved nomination. Your prospective employer, Concretech Pty Ltd, does not have an approved nomination for you at this time. As a result, your visa application is unlikely to be successful.
If you wish to seek more information regarding why your prospective employer does not have an approved nomination for you, please be advised that you will need to contact them directly.
Impact on your visa application
In the absence of an approved nomination from your prospective sponsor, you can either:
(a) provide comment on your intentions regarding your visa application (including providing evidence that you are the subject of an approved nomination); or
(b) withdraw your application in writing.
prior to a decision being made on your visa application…”
No response to the above correspondence was received from the Applicants by the Department.
On 10 October 2011, a delegate of the First Respondent refused the application on the basis that there was no approved nomination for the visa application, and, therefore, that the First Applicant did not meet cl.457.223(4)(a) of the Migration Regulations 1994 (Cth) (‘the Regulations).
As the First Applicant did not meet the requirements of sub-cl.456.211, the delegate found that the First Applicant did not meet the criteria for the ground of a Temporary Business (Class UC) (Subclass 456) Business (Short Stay) visa. Thus the application for that visa was refused. The secondary Applicants’ applications were also refused.
On 28 October 2011, the Applicants applied to the Migration Review Tribunal, as it then was, for a review of the delegate’s decision. On 9 December 2013, the matter was remitted by the Tribunal to the Department with a direction that the First Applicant met cl.457.223(4)(a) on the basis that the nomination had been approved on 2 December 2013 and would remain in effect for 12 months.
On 30 December 2013, the Department wrote to the Applicants via their authorised recipient acknowledging that the application had been remitted to the Department and requesting further information from the Applicants in support of the application. The correspondence noted that the delegate had commenced considering the First Applicant’s application for a Subclass 457 Temporary Work (Skilled) (Class UC) visa application for the occupation of wall and floor tiler 333411 within Concretech Pty Ltd. Amongst other things, that correspondence noted that, at the time of the visa application, the First Applicant held a Bridging visa E, which is not a substantive visa. The correspondence noted that the First Applicant’s last substantive visa was a student visa which expired on 17 July 2010. The First Applicant was thus required to meet cl. 457.211(b)(ii) of the Regulations in relation to the Sch.3 criteria. The letter therefore requested information in relation to whether the First Applicant satisfied criterion 3004 of Sch.3 of the Regulations. Significantly, criterion 3004 required that if the First Applicant was not the holder of a substantive visa at the time of the application, and the Minister was satisfied that it was because of factors beyond the First Applicant’s control; and there were compelling reasons for granting the visa; and that the First Applicant had complied substantially with the conditions that applied to the last held substantive visa; and that the First Applicant intended to comply with any conditions, subject to which the visa was granted, then that criterion could be satisfied. The First Applicant was requested to provide a written statement addressing each of the criterion in 3004 of Sch. 3 of the Regulations.
No response was received by the Department to the above correspondence. Had comment been received by the Department an entirely different outcome may have resulted. Mr Clothier makes that point well in his correspondence (as the lawyer for the Applicants) of 9 June 2015 to the Tribunal as set out in evidence at page 176-177 of the Court Book.
By correspondence of 11 November 2014, the Applicants, via their authorised recipient, were notified that the visa application had been refused. The email transmission, however, failed. On 28 November 2014, a copy of the same visa refusal notification letter was sent by email to the Applicants’ last email address provided in support of the application.
On 10 December 2014, the Department contacted the First Applicant who claimed to have not received any notification of refusal from the authorised representative. The Department found that notification of the refusal was defective. As a result, on 6 February 2015, the Applicants were re-notified via the last known email address of the authorised representative, that the visa application had been refused.
The Tribunal
On 17 February 2015, the Applicants made an application to the Tribunal for review of the delegate’s decision, attaching a copy of the decision with the application for review.
On 18 February 2015, the Applicants appointed a migration agent who had previously represented them before the Department, as their representative.
On 25 February 2015, the Applicants, via their authorised representative, were sent a letter inviting them to comment on the Tribunal’s view that the application was not valid because, at the time of the application:-
“…there was no nomination of an occupation that was approved under s.140GB of the Migration Act 1958 and in force. There was also no application for review of a decision to refuse a nomination pending before the Tribunal at the relevant time. However, this is a matter which must be determined by a Tribunal member.”
The Applicants were invited to provide comment on whether, in those circumstances, a valid application had been made.
On 10 March 2015, the First Applicant attended on the Tribunal and explained that he had appointed a representative but that each time he attended that office it was closed. The First Applicant was advised of the letter dated 25 February 2015 as referred to above and was told, in the circumstances, he may wish to seek an extension of time to respond to that letter. The First Applicant made such a request and was provided with further time. On 26 March 2015, the Tribunal was notified that the Applicants had appointed a new representative to act on their behalf.
On 17 April 2015, the Applicants, via their authorised representative, were sent a letter which, amongst other things, set out that, in order to make a valid application for review, the First Applicant must be sponsored by an approved sponsor as required under s.338(2)(d)(i) of the Migration Act 1958 (Cth) (‘the Act’) or there must be a pending application for a review of a decision not to approve the sponsor as a standard business sponsor pursuant to s.338, as set out in s.338(2)(d)(ii) of the Act. The letter said further as follows:-
“I am of the view that your application was not valid. This is because at the time the review application was lodged there was no nomination of an occupation that was approved and in force as required by s.338(2)(d)(i), nor was there a pending application for review of a decision not to approve your sponsor as a standard business sponsor as required by s.338(2)(d)(ii). However, this is a matter which must be determined by a Tribunal member.”
The Applicants were asked if they wished to make any comment on whether a valid application had been made. They were invited to do so in writing by 1 May 2015.
Further correspondence passed between the Tribunal and the authorised recipient of the Applicants. Included in this was correspondence indicating that the Applicants’ sponsor had sought fresh approval as a sponsor and made a new sponsorship application and nomination application on 3 June 2015 and 5 June 2015 respectively.
On 8 July 2015, the Applicants, via their authorised recipient were notified of the Tribunal’s decision that it did not have jurisdiction in the matter. They were provided with a copy of the Tribunal’s decision of 7 July 2015.
The Tribunal decision
The Tribunal correctly set out that it had jurisdiction to review a decision under the Act if an application was properly made under s.347 or s.412 of the Act or in limited circumstances not relevant to the application before it. The Tribunal thereafter set out in its statement of decision and reasons (‘the Decision Record):-
“5. In the circumstances of this case, the primary decisions are reviewable if they are Part 5-reviewable decisions. They are so, if at least one of the following circumstances existed at the time the applicant attempted to make the Tribunal review application:
the applicant was sponsored by an approved sponsor – s.338(2)(d)(i); and/or
there was a pending application to the tribunal for a review of a decision not to approve the sponsor as a standard business sponsor – s.338(2)(d)(ii).
6. In order to be ‘sponsored’ for s.338(2)(d)(i), the applicant must be identified in an approved nomination of an occupation under s.140GB that is in force at the time the review application is lodged (see MIBP v Lee [2014] FCCA 2881).
7. The tribunal wrote to the applicant and informed the applicant of the requirements laid out above, suggested to the applicant that the tribunal may not have jurisdiction as it appeared that neither of the two circumstances above existed at the time the tribunal review application was received, and invited comment by a certain date.
8. A request for access to information held by the tribunal was accommodated.
9. In a written reply the applicant’s representative, Mr Michael Clothier, concedes that neither of the two threshold requirements above existed at the relevant time.
10. He also asserts that Lee was not correctly decided. The tribunal notes that the position in Lee has recently been confirmed in Damore[1] and the tribunal is bound by those court decisions.”
[1] Damore v Minister for Immigration and Border Protection [2015] FCCA 1289.
The Tribunal found that the First Applicant was not the subject of an approved nomination that was in force and which had not ceased on the day of the application for review, and found there was no pending review application of a decision not to approve the First Applicant’s sponsor on the day of the application for review. In those circumstances, the Tribunal found it did not have jurisdiction in the matter.
Consideration
It was correct for the Tribunal to form the view that, in order for it to have jurisdiction, it was required to be satisfied that the First Applicant met s.338(2)(d) of the Act at the time of filing of the review application. There was an appropriate concession by the Applicants’ representative that neither of the two threshold requirements existed at the relevant time. This fact was most unfortunate for the Applicants. The Tribunal thus found it did not have jurisdiction in the matter.
The conclusion by the Tribunal is consistent with the decision in Minister for Immigration and Border Protection v Lee [2014] FCCA 2881 where the relevant nomination had ceased before the application to the Tribunal for review, and the Court held that the Tribunal had no jurisdiction. This was approved as correctly decided on its facts by the Full Federal Court in Ahmad v The Minister for Immigration and Border Protection [2015] FACFC 182 at 111.
There is no jurisdictional error in the Tribunal’s decision. The application is dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 3 May 2016
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