Kandel v Minister for Immigration & Anor

[2015] FCCA 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANDEL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2013

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Class UC Subclass 457 visa – jurisdiction of the Tribunal – whether the decision was reviewable under s.338 – whether approved nomination of an occupation must be in force at the time of lodging the application for review – jurisdictional error – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.140GB, 337, 338(2)(d), 347, 348, 476

Migration Regulations 1994, regs.2.75, 4.02, cl.457.223 Schedule 2

Minister for Immigration and Citizenship v Islam (2012) 202 FCR 46
Minister for Immigration v Lee & Ors [2014] FCCA 2881

Applicant: RAM PRASAD KANDEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1053 of 2015

Judgment of: Judge Street

Hearing date: 23 July 2015

Date of Last Submission: 6 August 2015

Delivered at: Sydney

Delivered on: 7 August 2015

REPRESENTATION

Counsel for the Applicant: Mr N. Poynder

Solicitors for the Respondent Mr J. Pinder (23 July 2015)
Minter Ellison

Counsel for the Respondent Mr T Reilly of Counsel (6 August 2015)

ORDERS

1. A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 25 March 2015 into this Court for the purpose of quashing it.

2. A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to re-determine the review application before it according to law.

3. The first respondent pay the applicant’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1053 of 2015

RAM PRASAD KANDEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. This is an application for a Constitutional writ under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 25 March 2015 holding that it did not have jurisdiction in respect of an application for review of a decision of the delegate refusing to grant a Class UC Subclass 457 visa.

2. Prior to the decision of the Tribunal, the Tribunal sent a letter to the applicant on 3 February 2015 identifying a preliminary view that without the application for review the application was not valid as the Tribunal did not have jurisdiction, applying the decision of Minister for Immigration v Lee & Ors [2014] FCCA 2881. The Tribunal identified that that decision required either at the time the application for review was made, that there was a nomination of an occupation approved and in force, or alternatively an application for a review of a decision not to approve the nomination of the sponsor.

3. In response to that letter, the applicant provided an application for nomination that was lodged at 1.43 pm on 21 March 2014.  This was some seven minutes before the application for review was lodged on 21 February 2014, namely at 1.50 pm.  The Tribunal followed the decision in Minister for Immigration v Lee & Ors [2014] FCCA 2881 and held that there must be a nomination of an occupation approved and in force. The Tribunal noted that the earlier application had been refused on 4 December 2013. The Tribunal held that there was no nomination of an occupation relating to the applicant that was approved under s.140GB of the Act, and was in force at the time that the application for review was lodged. It was in those circumstances the Tribunal concluded that the requirements of s.338(2)(d)(i) were not met. Accordingly, the Tribunal held that there was not a reviewable decision within s.338 of the Act, and the requirements of s.347 were not engaged, and that the Tribunal does not have jurisdiction to conduct the review under s.348.

4. The application identified the following grounds:

   The second respondent erroneously found that it did not have jurisdiction to consider the applicant's application for review of a decision of the first respondent to refuse a Class UC Subclass 457 visa. The decision was reviewable by the second respondent under s 338(2)(d)(i) of the Act by reason of the following circumstances:

   1. It was a criterion for the grant of the visa that the applicant be sponsored by an approved sponsor and identified in a nomination under section 140GB of the Act.

   2. At the time of the application for review of the decision the applicant was sponsored by an approved sponsor and identified in a nomination under section 140GB of the Act.

5. Counsel for the applicant contended that s.337 picked up the meaning of sponsor in reg.4.02(1AA), which is as follows:

   REG 4.02 – Part 5-reviewable decisions and who may apply for review

   (1AA)  For section 337 of the Act, sponsored includes being identified in a nomination under section 140GB of the Act.

6. For s.337 of the Act, sponsored includes being identified in a nomination under s.140GB of the Act. Counsel for the applicant submitted that it was clear from the material before the Court that the applicant was identified in a nomination by an approved sponsor within the meaning of reg.4.02(1AA). The applicant contended that correctly construed, s.338(2)(d)(i) should be read effectively as follows:

   22. Correctly interpreted, s 338(2)(d)(i) is therefore to be read in conjunction with reg 4.02(1AA) as follows:

   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 - including being identified in a nomination under section 140GB of the Act-by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made. (highlights added of contended construction)

7. The applicant submitted that this construction was supported by the decision of Robertson J in Minister for Immigration and Citizenship v Islam (2012) 202 FCR 46, and that that decision was binding on this Court, and relevantly drew the Court’s attention to the following paragraphs:

   41. If the nomination of the occupation has been approved under s 140GB then the approved sponsor, being a party to a work agreement (other than a Minister), must have satisfied the Minister that the applicant for the visa has been identified in the nomination under s 140GB.

   42. This is the language of the opening words of s 338(2)(d) read with reg 4.02(1AA), that is, that it was a criterion for the grant of the visa that the non-citizen is identified in a nomination under s 140GB of the Act (by an approved sponsor).

   43. I conclude that, at the level of identifying whether it is a criterion for the grant of the visa, the criterion in cl 457.223(2)(b)(ii) does answer the opening words of s 338(2)(d) read with reg 4.02(1AA), that is, that it was a criterion for the grant of the visa that the non-citizen is identified in a nomination under s 140GB of the Act by an approved sponsor.

8. The applicant submitted that the decision of Judge Nicholls in Minister for Immigration v Lee & Ors [2014] FCCA 2881 departed from the reasoning of Robertson J in Islam in the following passages:

   43. I agree with the Minister that, in essence, that analysis is relevant to the current case and, respectfully, applying the same process of “word-changing” adopted by Robertson J, results in the following.

   44. First, s.338(2)(d) of the Act requires that there be reference to a criterion for that visa. Second, that criterion must be satisfied at the time of the application for review to the Tribunal. In the current case the relevant criterion derives from s.140GB of the Act (see cl.457.223(4)(a)(ii) of the Regulations). That criterion was, that for the delegate’s decision to be an MRT-reviewable decision there must be an approved nomination of an occupation in respect of the visa applicant.

   45. Respectfully applying the analysis in Islam, there is a correlation between the term “sponsored by an approved sponsor” in s.338(2)(d) of the Act and the term “nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act”. That latter, therefore, applies in relation to s.338(2)(d)(i) of the Act.

   46. It should be noted that s.338(2)(d)(ii) of the Act does not apply to the current circumstances, given that there was no application for review of a decision not to approve the sponsorship made, or pending, at the relevant time.

9. The applicant submitted that the decision of Minister for Immigration and Citizenship v Islam (2012) 202 FCR 46 did not support a requirement that there must be an approved nomination of an occupation at the time of the application for review, but in fact supported the proposition that s.338(2)(d) must be read with reg.4.02(1AA) so that it included relevantly in this case, the applicant, being a person who is identified within nomination under s.140GB by an approved sponsor. The applicant submitted that the decision in Minister for Immigration v Lee & Ors [2014] FCCA 2881 was inconsistent with the observations of Robertson J in Minister for Immigration and Citizenship v Islam (2012) 202 FCR 46 and in light of the passages referred to above from Islam was plainly wrong.  This Court, it follows, had followed the decision of Minister for Immigration v Lee & Ors [2014] FCCA 2881 in a number of cases identified by the first respondent. Those earlier decisions by this Court were ones that followed Lee in light of the reference to “sponsored or nominated” in s.338(5) and s.338(8).

10. Counsel for the applicant submitted that s.338(5) and (8) did not assist in the construction of the meaning of, “Sponsored,” in s.338(2)(d)(i) as the category of person who may sponsor or nominate was being expanded by the work done under s.338(5) and (8). In this regard the applicant relied upon the reference in s.347(2) to, “Sponsor or nominator.”

11. I accept the applicant’s submission that the reference to or nominated in 338(5) and (8) does not support the construction that was adopted in Lee or the decisions of this Court following Lee.  I accept the applicant’s submission that this Court is bound by the principles recognised by Robertson J in Islam and specifically that s.338(2) must be read with reg.4.02(1AA). 

12. The question of whether the Tribunal had jurisdiction turned on what are in substance jurisdictional facts. I find that an application for nomination identifying the applicant was lodged prior to the time of the lodging of the application for review. I find that in these circumstances the applicant met the criteria under s.338(2)(d)(i). I find that the Tribunal had jurisdiction.

13. I note that the Court raised with the solicitor for the applicant the consequences that may have occurred as a result of the lapse of time or otherwise after the lodging of the application for review. Specifically, the first respondent’s attention was drawn to reg.2.75 and the lapse of the time that had occurred in the present case.

14. The first respondent conceded that this was not a case where there would be a submission that there would be futility in the granting of relief and accepted that if there was an error by the Tribunal in the determination of whether it had jurisdiction this was an appropriate case to remit to the Tribunal.

15. I accept Mr Poynder of Counsel’s submission that in the circumstances of this case where the Tribunal did in fact have jurisdiction it would be open to the applicant to satisfy the requirements of cl.457.223 by establishing a fresh sponsor and approved nomination.  In these circumstances the concession made by the first respondent that this is not a case where there would be futility in the grant of relief is clearly correct.

16. The first respondent at the hearing on 23 July 2015 sought an adjournment for the purpose of putting on further submissions in answer to the submissions of Mr Poynder of counsel on behalf of the applicant.  The Court directed a timetable for the filing of further submissions and reserved its decision.  The Court received the following further submission by Mr T. Reilly of Counsel on behalf of the first respondent as follows:

    1. These submissions are made pursuant to orders made by the Court on 23 July 2015.

    2. Having considered the matter further, the first respondent agrees that in the circumstances of this case the Migration Review Tribunal (the Tribunal) had jurisdiction to consider the applicant’s application for review, essentially for the reasons given in the applicant’s submissions. The first respondent also agrees that the orders sought by the application are appropriate and should be made.

    3. It follows that the first respondent accepts that the obiter dicta in Minister for Immigration and Border Protection v Lee [2014] FCCA 2881 (Judge Nicholls) (Lee) at [44]–[45] are incorrect to the extent that they suggest that there must be an “approved”  nomination of an occupation to satisfy subsection 338(2)(d)(i) of the Migration Act 1958 (Cth) (the Act).

    4. Given the terms of subregulation 4.02(1AA) of the Migration Regulations 1994 (Cth), subsection 338(2)(d)(i) of the Act will also be satisfied if there is a nomination pursuant to subsection 140GB(1) of the Act which has yet to be decided at the time of the application to the Tribunal for review.

    5. However, the first respondent submits that Lee was not incorrectly decided on its facts, as in Lee the relevant nomination had ceased before the application to the Tribunal for review: see Lee at [47]–[48]. As correctly held in Lee at [47], the Tribunal will not have jurisdiction where the relevant nomination “has ceased or does not have currency at the time of the application for review”.

    6. While the first respondent agrees that the orders sought by the applicant are appropriate, the first respondent requests that the Court provide written reasons, given the need for the Tribunal to be given guidance as to the application of Lee in other cases involving similar facts to this case.

17. The Court is satisfied that the Tribunal erred in law in holding that it did not have jurisdiction.  This clearly is a jurisdictional error.  The Court accordingly will grant relief in the nature of certiorari quashing the decision of the Tribunal and an order in the nature of mandamus for the Tribunal to determine the matter according to law.

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

Associate: 

Date: 7 August 2015

Corrections

1. The name of Mr T. Reilly, counsel for the first respondent was corrected at [16] from Mr T. O’Reilly.