Kaur v Minister for Home Affairs
[2018] FCCA 2000
•24 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2000 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a skilled work visa – Tribunal finding it lacked jurisdiction due to the prior refusal of a nomination application – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.140GB, 338, 411 Migration Regulations 1994 (Cth) |
| Cases cited: Ahmad v Minister for Immigration [2015] FCAFC 182 Kandel v Minister for Immigration & Anor [2015] FCCA 2013 Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 Ramjali v Minister for Immigration [2017] FCA 271 SZEYK v Minister for Immigration [2008] FCA 1940 |
| First Applicant: | RAMANJIT KAUR |
| Second Applicant: | YADWINDER SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 521 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2018 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Zinn 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 applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, 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 521 of 2018
| RAMANJIT KAUR |
First Applicant
| YADWINDER SINGH |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 20 February 2018. The Tribunal found that it lacked jurisdiction in the matter.
There are two applicants who are husband and wife. The principal applicant is the first applicant, Ms Kaur. Background facts relating to the visa application and the decision of the Tribunal are set out in the Minister’s outline of submissions filed on 17 July 2018.
On 2 March 2017, Ms Kaur applied for a Temporary Work (Skilled) (Subclass 457) visa (Subclass 457 visa) on the basis of a nomination by her sponsor Zag Web Developers.[1] The second applicant is Ms Kaur’s husband who was included in the visa application as a secondary visa applicant.[2] Ms Kaur appointed a registered migration agent as her authorised recipient for the purposes of her visa application.[3]
[1] Court Book (CB) 1-13
[2] CB 3
[3] CB 5
On 22 May 2017, a delegate of the Minister (delegate) invited Ms Kaur to comment on information that her prospective employer did not presently have an approved nomination and as a result, the Subclass 457 visa application was unlikely to be successful.[4]
[4] CB 38-40
On 26 June 2017, Ms Kaur’s representative informed the Minister’s Department that Ms Kaur’s new employer, HS FLEET Pty Ltd (the sponsor), had lodged a nomination application in respect of Ms Kaur for the position of Web Administrator and submitted a Form 1022 – Notification of changes in circumstances.[5]
[5] CB 41-45
On 10 October 2017, Ms Kaur was (again) invited to comment on information that the sponsor did not have an approved nomination and as a result, the Subclass 457 visa application was unlikely to be successful.[6] The letter informed Ms Kaur that she was required to respond to the invitation to comment in writing within 28 days.[7] No response to this invitation was received by the Minister’s Department.
[6] CB 56-58
[7] CB 57
On 1 December 2017, the delegate refused to grant Ms Kaur a Subclass 457 visa on the basis that she was not the subject of an approved nomination.[8] Accordingly, Ms Kaur did not satisfy clause 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which was a prescribed criterion for the grant of the visa.
[8] CB 60-68
The Tribunal
On 17 December 2017, Ms Kaur applied to the Tribunal for review of the delegate’s decision.[9] Ms Kaur appointed the same migration agent as her authorised representative.[10]
[9] CB 69-70
[10] CB 70
On 1 February 2018, the Tribunal invited the applicants to comment on the validity of the application, because at the time the review application was lodged, Ms 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 of a decision not to approve the sponsor or a nomination.[11] The applicants did not respond to this invitation.
[11] CB 79-81
On 20 February 2018, the Tribunal found that it had no jurisdiction to review the delegate’s decision.[12]
[12] CB 91-92
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 and the circumstances in which they were reviewable.[13]
[13] CB 92, [2]
The Tribunal found that the decision to refuse to grant a Subclass 457 visa was reviewable under s.338(2) of the Migration Act if, among other things, when they applied for review the review applicants were sponsored by an approved sponsor or the Tribunal had a pending application for review of a decision to refuse approval for sponsorship.[14]
[14] CB 92, [3]
The Tribunal noted that the Minister’s Department had refused the “sponsorship” application on 10 October 2017 and the sponsor did not apply for review of that decision.[15] As the sponsor’s sponsorship application was approved on 19 April 2017 and effective until 19 April 2022,[16] the Tribunal’s reference to the refusal of a “sponsorship” application is plainly intended to be a reference to the sponsor’s nomination application which was refused on 10 October 2017.[17]
[15] CB 92, [4]
[16] CB 85-86
[17] CB 83
The Tribunal found the decision to refuse to grant the applicants the Subclass 457 visas was not reviewable under s.338(2) and there were no other relevant provisions that allowed the Tribunal to review it.[18] Accordingly, the Tribunal found the application for review was not properly made and the Tribunal did not have jurisdiction in the matter.[19]
[18] CB 92, [4]
[19] CB 92, [5]
The present proceedings
These proceedings began with a show cause application filed on 27 February 2018. The applicants continue to rely upon that application. There are two grounds in it:
1.The applicants were denied procedural fairness in that they were denied an opportunity to be heard;
2.The Tribunal did not correctly interpret section 338(2) of the Migration Act when it refused to have jurisdiction in this matter.
The application is supported by a short affidavit filed with it which I received as a submission. I have before me as evidence the court book filed on 24 April 2018.
I invited oral submissions from Ms Kaur this morning. She told me that she did not know what to say. I explained to her the problem which confronted her before the Tribunal of a lack of a nomination from a sponsor or pending nomination application. I put to her my view that the Tribunal made the only finding which was available to it.
The Minister relies upon the written submissions. Ms Kaur declined to make any submissions in reply.
The case is, in my view, a simple one. The judicial review application is, in my view, doomed to fail. I agree with the Minister’s submissions in relation to the grounds advanced.
Ground 1
Ground 1 asserts that the applicants were denied procedural fairness because they were “denied an opportunity to be heard”.
Whilst the Tribunal may have been obliged to provide common law procedural fairness in respect of its consideration of whether it had jurisdiction,[20] the Tribunal fulfilled that obligation by writing to Ms Kaur’s representative and inviting the applicants to comment on the validity of their applications.[21] In any event, as the Tribunal correctly found that it did not have jurisdiction, no practical injustice would flow even if Ms Kaur could demonstrate that there had been a denial of procedural fairness in connection with the invitation to comment on the issue of the Tribunal’s jurisdiction.[22]
[20] SZEYK v Minister for Immigration [2008] FCA 1940 at [36]
[21] CB 79-81
[22] Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 per Gleeson CJ at [36]-[38]
To the extent Ms Kaur alleges that she should have been invited to a hearing, such complaint is misconceived in circumstances where the Tribunal had no jurisdiction to review the delegate’s decision and accordingly its procedural fairness obligations under Part 5 of the Migration Act to invite her to a hearing were not enlivened.
Ground 2
Ground 2 contends that the Tribunal misinterpreted s.338(2) of the Migration Act in finding that it had no jurisdiction.
The Tribunal’s reasons and the material before the Tribunal indicate that at the time the application for review was lodged, there was no evidence that Ms 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.
The Tribunal correctly found that as the sponsor’s nomination application had been refused and the sponsor did not apply for review of that decision, the delegate’s decision was not a reviewable decision in accordance with s.338(2)(d).[23] 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.[24]
[23] CB 92, [4]; 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
[24] Ibid
Conclusion
The applicants are unable to advance an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Ms Kaur did not wish to be heard on costs.
I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, 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-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 30 July 2018
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