Kumar v Minister for Immigration

[2015] FCCA 2600

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2600

Catchwords:
MIGRATION – Review of Refugee Tribunal decision – no jurisdictional error found – application dismissed –costs.

Legislation:

Migration Act 1958 (Cth), s.338(2)(d)

Applicant: VIKASH KUMAR

First Respondents: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondents: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 246 of 2015

Judgment of: Judge Vasta

Hearing date: 1 September 2015

Date of Last Submission: 1 September 2015

Delivered at: Brisbane

Delivered on: 1 September 2015

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: Sparke Helmore

THE COURT DECLARES:

(A)That the Second Respondent had no jurisdiction to review the decision of the delegate of the First Respondent dated 6 June 2014.

ORDERS

1. That the name of the Second Respondent be amended to “Administrative Appeals Tribunal”

2. That a writ in the nature of certiorari issue quashing the decision of the Second Respondent made on 20 February 2015.

3. That the Application filed 23 March 2015 be dismissed.

4. That the Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $1,367.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 246 of 2015

VIKASH KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondents

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application filed in this Court on 23 March 2015, the Applicant, Vikash Kumar, seeks a review of the decision of the Migration Review Tribunal made on 20 February 2015. 

2. That Tribunal’s decision was to affirm the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

3. The facts of the matter are that the Applicant had come to Australia.

4. He applied to have a company, VV Fox Proprietary Limited, which is trading as VV Fox Unit Trust, as an approved sponsor on 7 March 2014. 

5. On 7 March 2014, the department also sent a letter to Mr Kumar advising that his prospective employer, VV Fox Unit Trust, does not have an approved nomination and his visa application is unlikely to be successful.

6. He was invited to respond. 

7. On 28 March 2014, his migration agent responded in writing and advised that a new nomination application had been lodged. 

8. On 27 March 2014, a new nomination application for VV Fox Pty Ltd AFT VV Fox Unit Trust was lodged.  That application was refused on 29 May 2014.

9. The delegate refused to grant the visas on 6 June 2014 on the basis that cl.457.223(4)(a) was not met because the Applicant was not subject to an approved business nomination. 

10. On 10 December 2014, the Tribunal received a letter from the applicant’s migration agent stating that a new nomination had been lodged and requesting the Tribunal defer making its decision until the outcome of that application was known.

11. Unfortunately, the Tribunal still went ahead and looked at the matter and affirmed the decision not to grant the temporary business entry. 

12. In my view, that was an incorrect way in which the Migration Review Tribunal should have proceeded. 

13. Section 338(2)(d) of the Migration Act 1958 (Cth) provides for what is a reviewable decision by the Migration Review Tribunal. It states:

    “ (d) where it is a criterion for the grant of a 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 by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made;  or

    (ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.”

14. The fact is that there was no approved sponsor at the time that the application to review the decision to refuse to grant the visa was made; and secondly, there was no review of the sponsorship decision pending. 

15. The decision had been made that VV Fox Pty Ltd was not an approved sponsor, so:

    a)S.338(2)(d)(i)was not enlivened; and

    b)S.338(2)(d)(ii)was not enlivened either.

16. For those reasons, it is my view that the Migration Review Tribunal ought not to have considered this matter.  In my view, the Migration Review Tribunal had no jurisdiction to review the matter.

17. I therefore order and declare that the then, Migration Review Tribunal had no jurisdiction to review the decision of the delegate of the First Respondent dated 6 June 2014, and that the name of the Second Respondent, Migration Review Tribunal, be amended to now read Administrative Appeals Tribunal.  

18. I issue a writ in the nature of certiorari quashing the decision of the second respondent made on 20 February 2015.

19. Of course, if the MRT had no jurisdiction to deal with this matter, then it is not properly before the Court.  The applicant had no jurisdiction to bring the matter to this Court.

20. The application filed in this Court on 23 March 2015 is dismissed and I order that the applicant pay the first respondent’s costs of the proceedings fixed in the sum of $1,367.00. 

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

Date: 22 September 2015