Kaur v Minister for Home Affairs
[2019] FCCA 1257
•13 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1257 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal finding it lacked jurisdiction – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Ahmad v Minister for Immigration [2015] FCAFC 182 SZEYK v Minister for Immigration [2008] FCA 1940 |
| Applicant: | SARBJEET KAUR |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2421 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 13 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms N Johnson of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2421 of 2018
| SARBJEET KAUR |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant, Miss Kaur, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 July 2008. The Tribunal, in a brief written decision, found that it did not have jurisdiction in this matter.
The background is set out in the Minister’s outline of submissions filed on 2 May 2019.
On 19 October 2017, Miss Kaur applied for a Temporary Work (Skilled) (Subclass 457) visa (Subclass 457 visa) on the basis of a nomination by her sponsor “Ess Arr Pty Ltd” (the sponsor).[1] Miss Kaur appointed a registered migration agent as her authorised recipient for the purposes of her visa application.[2]
[1] Court Book (CB) 1-21
[2] CB 4
On 27 March 2018, a delegate of the Minister invited Miss Kaur to comment on information that her prospective employer did not have an approved nomination and as a result, her visa application could not be approved. Miss Kaur was invited to respond within 28 days.[3] No response was received to that invitation.
[3] CB 40-42
On 26 April 2018, a delegate of the Minister (delegate) refused to grant Miss Kaur a Subclass 457 visa on the basis that she was not the subject of an approved nomination and therefore did not satisfy clause 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Regulations).[4]
[4] CB 44-48
The Tribunal
On 4 May 2018, Miss Kaur lodged an application for review with the Tribunal.[5]
[5] CB 49-50
In her application, Miss Kaur stated she was seeking review of a decision with visa subclass “WA 010” dated 26 April 2018.[6] This subclass corresponds to a Bridging Visa A. Miss Kaur did not attach a copy of any decision with her application for review. This was plainly an error as under the same heading, Miss Kaur provided the correct date of decision (26 April 2018) and correct Departmental file number (BCC2017/3841792). Tribunal case notes confirm that the Tribunal verified this on the Minister’s Department’s Integrated Client Services Environment system (ICSE) which confirmed that a refusal decision dated 26 April 2018 was in relation to a Subclass 457 visa. Further, all subsequent correspondence from the Tribunal referred to Miss Kaur’s application for review “in respect of a decision to refuse to grant a Temporary Business Entry (Class UC) visa” and Miss Kaur did not take any steps to challenge this characterisation of the application for review.
[6] CB 49
On 13 July 2018, the Tribunal invited Miss Kaur to comment on the validity of the application for review. The letter stated that at the time the review application was lodged, Miss Kaur was not identified in a nomination under s.140GB of the Migration Act 1958 (Cth) (Migration Act) that was approved or pending. Nor was there a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E, or a decision not to approve the nomination under s.140GB of the Migration Act. Miss Kaur was invited to comment on whether a valid application had been made by 27 July 2018.[7] No response was received to this invitation.
[7] CB 60
On 31 July 2018, the Tribunal found that it had no jurisdiction to review the delegate’s decision.[8]
[8] CB 61-65
The Tribunal found that s.338 and s.411 of the Migration Act and regulation 4.02(4) of the Regulations set out the range of decisions that were reviewable by the Tribunal.[9] The Tribunal found that it had informed Miss Kaur that it appeared her application was invalid because, based on evidence before the Tribunal, at the time the review application was lodged:
a)Miss Kaur was not identified in a nomination under s.140GB of the Migration Act that was approved or pending; and
b)there was no pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E or a decision not to approve the nomination under s.140GB.
[9] CB 65, [2]
The Tribunal found no response was received from Miss Kaur to this invitation.[10] The Tribunal found that based on the evidence before it, there was no reviewable decision and it followed that the application for review was not properly made and the Tribunal did not have jurisdiction.[11]
[10] CB 65, [3]
[11] CB 65, [4]-[5]
The present proceedings
These proceedings began with a show cause application filed on 30 August 2018.
Miss Kaur continues to rely upon that application. There is one ground in it:
The Tribunal error by failing to invite the applicant to make comments on evidence the Tribunal relied upon to reach to the subject decision therefore denied Natural Justice.
Particulars
Paragraph 2 and 3 of the decision
The application is supported by a short affidavit filed with it which I received. I also have before me as evidence the court book filed on 26 October 2018.
I invited oral submissions from Miss Kaur this afternoon. She handed up a two page written statement which I received as a submission. It is apparent that she has at times been poorly advised. It is also apparent that she has done her best to negotiate her way through the complex Australian visa conditions with a view to attaining a goal of permanent residence. She seeks more time in Australia in order to achieve her dream. These are matters that might be considered by the Minister should he be minded to do so. They are, however, beyond the scope of this proceeding.
The simple fact in this case was that the absence of an approved sponsor or review of a sponsorship decision left the Tribunal without jurisdiction. That is what the Tribunal found, and in my view the finding was clearly correct. The Minister’s submissions deal with the legal issues. I agree with those submissions and adopt them with any necessary amendments for the purposes of this judgment.
The sole ground of the application for judicial review pleads a breach of natural justice on the basis that the Tribunal failed to invite Miss Kaur to comment on “evidence the Tribunal relied upon” and refers to [2] and [3] of the Tribunal’s decision.
Whilst the Tribunal may have been obliged to provide common law natural justice and procedural fairness in respect of its consideration of whether it had jurisdiction,[12] the Tribunal fulfilled that obligation by writing to Miss Kaur on 13 July 2018 and inviting her to comment on the validity of the application. The invitation was sent to Miss Kaur’s email address identified in her application for review. It expressly informed her that it appeared her application was not valid because at the time the application was lodged, she was not identified in a nomination that was approved or pending nor was there a pending application for review of either a decision not to approve the sponsor or not to approve the nomination. Miss Kaur did not respond to that invitation.
[12] SZEYK v Minister for Immigration [2008] FCA 1940 at [36]
Accordingly, Miss Kaur’s complaint that the Tribunal did not invite her to comment on the “evidence the Tribunal relied upon” lacks substance. In any event, as the Tribunal correctly found that it did not have jurisdiction, no practical injustice would flow even if Miss Kaur could demonstrate that there had been a denial of natural justice or procedural fairness in connection with the invitation to comment on the issue of the Tribunal’s jurisdiction.[13]
[13] Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 per Gleeson CJ at [36]-[38]; Kaur & Anor v Minister for Home Affairs & Anor [2018] FCCA 2000 at [21] per Judge Driver
The Tribunal’s reasons indicate that at the time the application for review was lodged, there was no evidence that Miss Kaur was the subject of an approved nomination or that the Tribunal had before it a pending application for review of a decision to refuse the nomination. Accordingly, the Tribunal correctly applied s.338(2) and found it had no jurisdiction.
Relevantly, s.338(2)(d) of the Migration Act provides that the Tribunal has jurisdiction to review a primary decision in circumstances where it is a criterion for the grant of a temporary visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a prescribed kind if:
a)the non-citizen is sponsored by an approved sponsor at the time the application to review the delegate’s decision to refuse to grant the visa is made; or
b)an application for review of a decision not to approve the sponsor as an approved 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.
At the time of her application to the Tribunal, Miss Kaur was not sponsored by an approved sponsor or identified in an approved nomination. Nor was there an application for review of a decision not to approve the sponsor or the nomination pending at the time of Miss Kaur’s review application. Accordingly, the Tribunal was correct to conclude that the delegate’s decision was not a reviewable decision in accordance with s.338(2)(d) and it lacked jurisdiction.[14]
[14] Ramjali v Minister for Immigration [2017] FCA 271; cf. Ahmad v Minister for Immigration [2015] FCAFC 182; Kandel v Minister for Immigration & Anor [2015] FCCA 2013
For completeness, the Tribunal incorrectly refers to s.140GB of the Migration Act as “Terms of approval as a sponsor”, which it is actually titled “Minister to approve nominations”. This is plainly an error of no significance to the Tribunal’s decision that it had no jurisdiction in the matter.
Conclusion
I conclude that Miss Kaur is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the court scale. Miss Kaur enquired about the possibility of payment by instalments, which is a matter she could take up in due course with the Minister’s Department.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 15 May 2019
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