KHAN v Minister for Immigration

[2015] FCCA 1891

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1891

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugee Division) – Class UC (Subclass 457) visa – procedural fairness – whether there was an approved nomination at the time of the decision – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.338, 476

Khatri v Minister for Immigration and Border Protection [2015] FCA 669
Minister for Immigration v Lee & Ors [2014] FCCA 2881

Applicant: GULAB KHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL (MIGRATION AND REFUGEES DIVISION)

File Number: SYG 984 of 2015

Judgment of: Judge Street

Hearing date: 10 July 2015

Date of Last Submission: 10 July 2015

Delivered at: Sydney

Delivered on: 10 July 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms B. Griffin
Australian Government Solicitor

ORDERS

1. The name of the second respondent is the Administrative Appeals Tribunal (Migration and Refugee Division) and the filing of any further document in this regard is dispensed with.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $3500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 984 of 2015

GULAB KHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL (MIGRATION AND REFUGEES DIVISION)

Second Respondent

REASONS FOR JUDGMENT

As Corrected

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision that the Tribunal made on 17 March 2015, finding that the Tribunal did not have jurisdiction in respect of an application made to the Tribunal on 24 April 2014 for review of a decision of the delegate refusing to grant the applicant a Class UC (Subclass 457) visa. 

2. The application identified the following grounds:

   1. The application for review was a reviewable decision in accordance with s338(2)(d) of the Migration Act 1958 as the applicant was sponsored at time of review.

   2. The need for a nomination being approved is a time of decision requirement.

   3. An application for a new nomination was to be submitted by the sponsor prior to notification of tribunal review hearing.

   4. The tribunal did not apply the applicable law and policy correctly as it should have provided a natural justice request regarding the need for a nomination.

   5. The tribunals 12 month delay in determining the validity of the review application was unreasonable and has prejudiced the review applicant.

   6. The tribunal should apply the policy and law that was in place at the time the review application was submitted.

3. The applicant submitted that he was adversely affected by the delay in the Tribunal’s determination and that it was incorrect, or unreasonable, or unfair.  The first respondent identified that the applicant applied for a Long Stay Temporary Business visa on 18 June 2013.  On 15 October 2013, the delegate wrote to the applicant and said (CB 30):

   One of the criteria for the grant of a Temporary Work (Skilled) (subclass 457) visa is an approved nomination. Your prospective employer, AULION PTY LTD, does not have an approved nomination for you at this time. As a result, your visa application is unlikely to be successful.

4. The applicant’s solicitor responded to that letter dated 15 October 2013, identifying that there was a subsequent attached nomination application that had been submitted by the sponsor, and that the sponsor was submitting further evidence concerning that nomination.  In light of the new nomination, the delegate was asked that the application be determined once the nomination application has been decided.  The applicant identified a letter to the sponsor dated 26 November 2013, acknowledging the nomination application received by the Department.  On 2 December 2013, the applicant was sent a request for more information concerning the Temporary Work (Skilled) (Subclass 457) visa, which request detail relevantly referred to (CB 47): 

   I am considering the above client’s application further against the requirement that:

   The Minister is satisfied that

   (i) the applicant’s intention to perform the occupation is genuine; and

   (ii) the position associated with the nominated occupation is genuine (Regulation 457.223(4)(d)).

5. Further information was provided in response to that letter dealing with the issue of the nominated occupation being genuine.  On 4 March 2014, a further invitation to comment was sent to the Applicant which relevantly provided (CB 66):

   One of the criteria for the grant of a Temporary Work (Skilled) (subclass 457) visa is an approved nomination. Your prospective employer, AULION 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.

   In the absence of an approved nomination from your prospective sponsor, you can either:

   ·Provide comment on your intentions regarding your visa application (including providing evidence that you are the subject of an approved nomination); or

   ·Withdraw your application in writing.

6. The first respondent pointed out that the letter of 4 March 2014 clearly drew the applicant’s attention to the fact that the prospective employer did not have an approved nomination for the Applicant.  There was no response to that letter dated 4 March 2014.  The first respondent drew attention to the decision delivered on 10 April 2014 which relevantly set out the requirements in respect of a standard business sponsor under cl.457.223(4) as follows (CB 76-77):

   Standard business sponsorship

   (4) The applicant meets the requirements of this subclause if:

   (a) each of the following applies:

   (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

   (ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

   (iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and

   (aa) the nominated occupation is specified in an instrument in writing for paragraph 2.72(10) (a) or (aa) that is in effect;

7. In opposition to the application and the alleged existence of any jurisdictional error the first respondent drew attention to the findings of the delegate which are relevantly, as follows (CB 77):

   On 18/06/2013, the applicant lodged his Subclass 457 – Temporary Work (Skilled) visa on the basis of being sponsored by a standard business sponsor, AULION PTY LTD, for the position of Customer Service Manager.

   On 04/03/2014, the applicant’s nomination application was refused by the department.

   On 04/03/2014, the visa applicant was informed in writing that one of the criteria for the grant of a Temporary Work (Skilled) (subclass 457) visa is an approved nomination, and the applicant’s prospective employer, AULION PTY LTD, did not have an approved nomination for the primary visa applicant at that time. As a result, the visa applicant’s visa application was unlikely to be successful. The applicant was provided with 28 days to either:

   ·Provide comment on his intentions regarding his visa application (including providing evidence that he is the subject of an approved nomination); or

   ·Withdraw his applicant in writing.

   To date, the visa applicant has not provided a response.

   I have conducted a search on the departmental records and found no evidence that the applicant has a valid nomination.

   As the applicant is not the subject of an approved nomination under section 140 GB of the Act as per the above sub-clause, the applicant does not meet the criteria of this sub-clause.

   Consequently, I find that the applicant does not satisfy the criteria at the Migration Regulation 457.223 of Schedule 2 of the Migration Regulations. I have not assessed the applicant against any other sub-clause of 457.223(4).

   Therefore, I am not satisfied that this visa application meets sub-regulation 457.223(4)(a)(i).

8. It is clear that it would have been open to the Applicant to obtain a different sponsor and seek an approved nomination from a different sponsor up until the date of the decision of the delegate.  It is also clear that the decision of the delegate identified the reason why the Applicant had been unsuccessful. 

9. The Applicant applied for a review which was acknowledged on 5 May 2014.  The first respondent drew attention to the letter sent to the Applicant on 4 February 2015, relevantly identifying the potentially dispositive issue of a want of jurisdiction based on the decision of Minister for Immigration v Lee & Ors [2014] FCCA 2881 in the circumstances where for the application for review to be valid, there must have been at the time that the application was made, either a nomination of an occupation approved and in force, or an application for review of a decision, albeit in error referring to the nomination rather than review of a decision not to approve sponsorship under s.338 (2) (d) (ii) pending before the Tribunal.

10. The Applicant’s solicitors responded to the letter of 4 February 2015 (CB 87) contending that the decision in Minister for Immigration v Lee & Ors [2014] FCCA 2881 was not correct and had no retrospective operation, contending that the application was valid and should have been determined in a timeframe prior to the refusal of the nomination that occurred on 4 March 2014 and asserting that the decision was unfair. The first respondent submitted that it was clear that the Tribunal had taken into account those submissions and relied upon the following relevant findings in the Tribunal’s decision:

    3. 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). Alternatively, for s.338(2)(d)(ii), there must be a pending review of the decision to refuse the standard business sponsor before the Tribunal at the relevant time.

    …

    5. The Tribunal invited the applicant to comment on the validity of the applications for review. In response, the representative made submissions, together with email correspondence from the Department’s 457 and Sponsor Monitoring Section, regarding the interpretation of s.338(2)(d) in light of the case of MIBP v Lee [2014] FCCA 2881. The representative submitted that MIBP v Lee [2014] FCCA 2881 should not apply to the applicant’s case as the application for review was lodged before that court decision. It was also submitted that it is unfair for the Tribunal to assess the validity of the application 10 months after the review application had been lodged and that the policy intention is that case law should not be applied retrospectively.

    6. The Tribunal has considered the submissions, but does not agree with the representative’s understanding of how or when Lee applies. In MIBP v Lee [2014] FCCA 2881 the court determined how s.338(2)(d)(i) should be interpreted in relation to 457 visa applications and the Tribunal is bound by that interpretation with respect to subclass 457 review applications that have not been decided.

    7. Consequently, the Tribunal finds that at the time the review application was lodged there was no nomination of an occupation relating to the applicant that was approved under s.140GB of the Act and was in force. The Tribunal also finds that at the time of the review there was no application for review of a decision not to approve the sponsor that was pending before the Tribunal.

    8. Given the above, the Tribunal consequently finds that the requirements of s.338(2)(d) have not been met.

    9. Accordingly, the Tribunal finds that the decision to refuse the applicant a Subclass 457 visa is not an MRT reviewable decision in accordance with s.338(2)(d) and r.4.02(1A). As the delegate’s decision is not MRT-reviewable in these circumstances it follows that the application for review was not properly made under s.347 for review of an MRT-reviewable decision for the purposes of s.348 and the Tribunal does not have jurisdiction in this matter.

11. The first respondent submitted that the Tribunal was correct in holding that it did not have jurisdiction and was correct in following the decision of Lee.  The first respondent submitted that on the proper construction of cl.457.223(4), it was clear that there was a mandatory requirement that the approval of the nomination had not ceased.  The applicant submitted that there is no substance in the proposition that the Tribunal had not correctly applied the law, and that there is no substance in relation to grounds 1-4 of the application. It was submitted by the first respondent that the applicant had been afforded natural justice, given the notification of the dispositive issue in advance of the hearing and an opportunity to respond to the same.

12. The first respondent submitted that there was no relevant prejudice to the applicant from the alleged delay of 10 months in the delivery of the decision of the Tribunal.  The first respondent submitted that it could not be said that the delay had prejudiced the applicant, and that there is no substance in ground 5.

13. In relation to ground 6, the first respondent submitted that there had been no change in the law, and that the decision of Lee was an application of the correct interpretation of the law as it stood at the time of the applicant’s original application, and that there was no substance in ground 6.

14. I find that the Tribunal was correct to hold that it had no jurisdiction.  In following the decision in Minister for Immigration v Lee & Ors [2014] FCCA 2881 as to the correct construction of s.338(2)(d)(i), I find that the Tribunal was correct that its jurisdiction under s.348 required, pursuant to s.338(2)(d)(i), that the applicant was sponsored by an approved sponsor at the time the application to review the decision to refuse the grant of a visa was made. The Tribunal was correct in finding that the requirements of s.338(2)(d) had not been met.

15. I note that this construction is consistent with the decision in Khatri v Minister for Immigration and Border Protection [2015] FCA 669, albeit that that decision focused specifically on cl.457.223(4)(a). I accept the first respondent’s submission that the Tribunal applied the correct law, and that the Tribunal afforded the applicant procedural fairness by notifying the applicant in advance of the potentially dispositive issue.

16. I find that there is no denial of procedural fairness.  I find that there is no prejudice to the applicant by reason of the alleged 10 months delay.  I find that the 10 months taken to deliver the decision was not in any event a delay of a kind to cause the decision to be unreasonable, and that the decision cannot be said to be disproportionate or lack an evident and intelligible justification.  There is no substance in relation to ground 4 or ground 5.

17. In relation to ground 6, the Tribunal correctly applied the law, and there was no retrospective application of policy.  Accordingly, there is no substance in relation to ground 6.  To the extent that the applicant advanced that the delay had been unfair to him, I find that up until the determination of the delegate and the making of the application for review the applicant could have up to that time sought a new sponsor and nomination.  I find there was no relevant delay.

18. I reject the proposition that the time taken for delivery of the decision by the Tribunal caused the applicant any unfairness. I find that a shorter period for the determination of the application by the Tribunal would not have assisted the applicant, as the applicant had not met the requirements of s.338 at the time of the lodging of the application for review.

19. To the extent that the applicant complains he was not given an opportunity to have a further sponsor after he applied for review to the Tribunal, s.338 does not provide jurisdiction to the Tribunal to permit some further step. Accordingly, there is no substance in the criticism of the Tribunal advanced by the applicant that he was denied an opportunity to have a further sponsor apply for nomination after he filed the application for review.

20. I note the application for review was made on 24 April 2014, and that the applicant was well on notice of the potential problem in not having an approved nomination, on any view, since 15 October 2013.  It would have been open to the applicant to take steps to obtain a fresh sponsor and seek an approved nomination had he wished to do so up until the lodging of the application for review made on 24 April 2014.  The application fails to find any jurisdictional error.  The application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 15 July 2015

CORRECTIONS

1. Para.14 amended by deleting “In following the decision in Minister for Immigration v Lee & Ors [2014] FCCA 2881 as to the correct instruction of s.338(2)(d)(i),…” and substituting “In following the decision in Minister for Immigration v Lee & Ors [2014] FCCA 2881 as to the correct construction of s.338(2)(d)(i)…”