Kim Phillip & Simon Pty Ltd (Migration)

[2018] AATA 4034

Kim Phillip & Simon Pty Ltd (Migration) [2018] AATA 4034 (19 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Kim Phillip & Simon Pty Ltd

CASE NUMBER:  1723863

DIBP REFERENCE(S):  BCC2017/2271598

MEMBER:Peter Emmerton

DATE:19 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 19 October 2018 at 10:01am  

CATCHWORDS

MIGRATION – approval as a standard business sponsor – lawfully operating a business in Australia – considering certain criteria – no jurisdiction       

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 140, 338, 347, 411, 412
Migration Regulations 1994, rr 2.59, 4.02

CASES

Tickner v Chapman (1995) 57 FCR 451              

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 3 October 2017 for review of a decision made by a delegate of the Minister for Immigration to refuse an application for approval as a standard business sponsor under s.140E(1) of the Migration Act 1958 (Cth). For the following reasons, the Tribunal finds that it does not have jurisdiction.

2. The Tribunal has jurisdiction to review a decision under the Act if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 (the Regulations) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse or cancel visas and a range of sponsorship and nomination decisions. The decision to refuse an application for approval as a standard business sponsor is a reviewable decision only if, for review applications made before 18 March 2018, the delegate considered the criteria in r.2.59(d) and (e) or, for review applications made on or after 18 March 2018, the delegate considered the criterion in r.2.59(f): s.338(9), r.4.02(4)(a) and r.4.02(4A).

3. The application for approval was refused by the delegate because they were not satisfied that the applicant met r.2.59(g)of the Regulations. Accordingly, the applicant was invited to comment on the Tribunal’s preliminary view that it did not have jurisdiction because the criteria in r.2.59(d) and (e) was not considered and r.4.02(4A) therefore applied. The applicant submitted in response that it was to be imputed from the delegate’s decision that r.2.59(d) and (e) were considered, in part because they came before r.2.59(g) which was the issue said to be the most critical to the delegate in this case.

   FINDINGS AND REASONS

4. The Tribunal considers r.4.02(4)(a) and (4A) are clear in their terms. They prescribe that a decision is not a Part 5 reviewable decision if the decision relates to a person whose application for approval as an approved sponsor in relation to the standard business sponsor class has been refused, and, in making that decision, the Minister did not consider certain criteria. In assessing its jurisdiction, the Tribunal must therefore look to the matters considered by the delegate in making their decision, and not engage in an assessment of those matters for itself.

5. The meaning of ‘consider’ in the administrative decision-making context was addressed by the Full Court in Tickner v Chapman (1995) 57 FCR 451. Here, Black CJ (at 462) referred to the meaning of ‘consider’ in the sense of the consideration of some thing in the Oxford English Dictionary (2nd ed) as ‘to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of’ and stated that consideration of a document such as a representation or a submission ‘involves an active intellectual process directed at that representation or submission’.

6. Following this, it is clear that to ‘consider’ something requires more than merely being aware of it and requires the subject to actively turn their mind to it and contemplate it in a meaningful way. The delegate’s decision record shows that the delegate considered the criteria in r.2.59 and they were not satisfied that r.2.59(g) was met. No other criteria were considered in the decision record, and the delegate stated in the body of the decision record that they had ‘not assessed the applicant against the other criteria of Regulation 2.59’.

7. The Tribunal has considered whether r.4.02 is ambiguous and could operate to unfairly or unintentionally limit or remove review rights. However, the overall objective of statutory construction is to give effect to the legislative intention as expressed in the text of the statutory provisions. The Tribunal does not consider that r.4.02(4A) is ambiguous. It clearly indicates that a decision is not reviewable if the delegate did not consider certain criteria in the making of their decision. The Tribunal has also had regard to the note to r.4.02(4A) which states that the Minister is only required to consider those criteria if the applicant is lawfully operating a business in Australia. As the note suggests, those criteria in their terms apply only where the applicant lawfully operates a business in Australia.

8. The Tribunal has also considered whether the delegate is required to consider certain criteria in all cases where information about the lawful operation of the business is provided. While s.140E of the Act provides that the Minister must approve a person as a sponsor if all the prescribed criteria are satisfied, this does not mean that r.2.59 must be considered in its entirety in all cases.

9. The Tribunal has considered whether the reference to r.2.59 on the first page of the delegate’s decision record demonstrates that the delegate has considered all of r.2.59 in making their decision. When considered as a whole, the Tribunal finds that the reference on the first page of the decision record to r.2.59 is a general reference to the prescribed criteria only. There is nothing to suggest that r.2.59 as a whole was considered, and the decision record itself points to the contrary. While the Tribunal accepts that the delegate may have been aware of other criteria in r.2.59, the Tribunal does not accept that the delegate considered them, in the sense of actively turning their mind to them and contemplating them in a meaningful way.

10. The Tribunal notes that the letter notifying the applicant of the delegate’s decision indicates that the decision is reviewable by the Tribunal. The Tribunal accepts that the applicant may have relied upon this. However, for the reasons given, and having regard to the meaning of ‘consider’ as discussed above, the Tribunal finds that the criteria in r.2.59(d) and (e) were not considered. It therefore follows that r.4.02(4A) applies, meaning that the delegate’s decision to refuse the applicant’s application for approval as a standard business sponsor is not a Part 5 reviewable decision.

11. As there is no reviewable decision it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

12. The Tribunal does not have jurisdiction in this matter.

    Peter Emmerton
    Member