Kyere v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 265
•17 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kyere v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 265
File number(s): SYG 3458 of 2017 Judgment of: JUDGE HUMPHREYS Date of judgment: 17 November 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal –Training (sub-class 407) visa – whether the Tribunal made jurisdictional error as it held that at the time of lodging the review application the sponsor was not as approved sponsor – whether the Tribunal failed to provide adequate opportunity to the applicant to put forth his case – whether jurisdictional error is made out – jurisdictional error not made out – application dismissed. Legislation: Migration Act 1958 ss 140E, 140GB, 338
Migration Regulations 1994 reg 4.02
Cases cited: SZTVE v Minister for Immigration and Border Protection & Anor [2014] FCCA 1640
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of last submission/s: 9 November 2021 Date of hearing: 9 November 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Ng. ORDERS
SYG 3458 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MAXWELL YAW KYERE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
17 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $5000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Ghana. On 15 March 2017, the applicant applied for a Training (sub-class 407) visa. On 19 June 2017, a delegate for the Minister (“the delegate”) wrote to the applicant advising him that there was no record of the applicant being the subject of a nomination by an intended sponsor or any other sponsor. As a result, the applicant was unable to meet the criteria contained within cl 407.214 of the Migration Regulations 1994 (“the Regulations”).
In a decision dated 14 August 2017, a delegate refused the applicant his Training visa. It was noted that the nomination of the applicant’s intended sponsor, Sukash Pty Ltd, was refused on 19 June 2017. Accordingly, the applicant did not meet the conditions in
cl 407.214 of the Regulations.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a letter dated 4 October 2017, the Tribunal wrote to the applicant raising concerns that the application for review was not valid. This was because at the time the review application was lodged, the applicant was not identified in a nomination under s 140GB of the Migration Act 1958 (“the Act”). Nor was there a pending application before the Tribunal of the decision not to approve the sponsor under s 140E of the Act, or a decision not to approve the nomination under s 140GB of the Act.
In a decision dated 23 October 2017, the Tribunal found that it did not have jurisdiction in the matter. The applicant now seeks judicial review of the Tribunal decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision is brief and to the point. At paragraph two of the decision record, the Tribunal noted that a decision under cl 407.214 of the Regulations, the decision was reviewable if the applicant made the visa application while in the migration zone and either the applicant is sponsored by an approved sponsor at the time of the application for review of the visa refusal is made, or an application for review of a decision not to approve the sponsor has been made, whilst the application for review of the visa refusal is made, review of the sponsorship decision is pending.
The Tribunal noted that the applicant had been sent a letter inviting him to comment on the validity of the application for review but that no response was received.
In the circumstances of this case, because the applicant was not sponsored or nominated as required by a criterion for the grant of the visa, the Tribunal determined that the application for review was not properly made in that the Tribunal did not have jurisdiction.
The applicant now seeks judicial review of the Tribunal’s decision
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are set out in an Initiating Application filed with the Court on 13 November 2017.
They are as follows verbatim:
Ground one
The Tribunal made jurisdictional error as it held that at the time of lodging the review application the sponsor was not as approved sponsor.
Particulars
The Tribunal in para 2 has observed that the decision under cl 407.214 is reviewable only if the applicant is sponsored by an approved sponsor at the time the application for review was lodged. It is submitted that the sponsor was approved for sponsorship of 407 visa on 20 March 2017 by the Department of Immigration and Border Protection and so was an approved sponsor at the time of lodgement of the review application.
Ground two
The Tribunal failed to provide adequate opportunity to the applicant to put forth his case.
Particulars
The Tribunal did not provide an adequate opportunity by way of hearing for the applicant to reduce oral evidence to prove his case. The sponsor was approved much before the lodging of the review application
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter but was able to follow the proceedings reasonably well given his English language skills. Prior to the hearing commencing, the Court ensured that the applicant was in possession of the relevant Court books and the relevant substance of the respondent’s written submissions had been interpreted to him. The Court also ensured that the applicant had access to a pen and paper so that he could take notes during the course of the hearing should he wish to.
At the commencement of the hearing, the Court explained to the applicant that it was undertaking judicial review, not merits review, and the difference between the two types of review. Despite Court orders, no written submissions or other material was provided by the applicant in support of his application.
In an Affidavit dated 10 November 2017, the applicant stated as follows:
1.I am the applicant in the above matter and I am aware of the facts of the case.
2.I also state that I satisfy all legal requirements for the issue of 407 trainee visa under the Migration Act.
3.I state that I have a good case both on merits and the law.
4.The Tribunal failed to exercise its jurisdiction in spite of my employer nominating me for the trainee position thereby resulting in miscarriage of justice.
The applicant told the Court the company that had sponsored him told him they would do everything to assist him with the Training visa. The applicant did not understand why the visa was refused or the Tribunal’s decision. The Court explained that although Sukash Pty Ltd was approved to make a nomination for a Trainee visa, there was a separate and additional process as to the approval of his visa. It was his approval for a training visa that was rejected.
Following the legal representative for the first respondent’s oral submissions, the applicant was asked if you wish to say anything in response. The applicant replied “No”.
THE FIRST RESPONDENT’S SUBMISSIONS
By ground one and point 4 in the applicant’s Affidavit, the applicant is in effect alleging that the Tribunal was incorrect in finding that it did not have jurisdiction because Sukash Pty Ltd was an “approved sponsor” and a nomination application had been made. As the legal representative for the first respondent understands, the applicant is stating that Sukash Pty Ltd was an approved sponsor pursuant to s 140E of the Act and Sukash Pty Ltd lodged an application for approval of a nomination under sc140GB of the Act. The legal representative for the first respondent accepts this proposition.
However, s 338(2)(d) of the Act requires that “at the time of the application to the Tribunal” being 2 September 2017 either:
the non-citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
a review of a decision under section 140E not to approve the sponsor of the non-citizen is pending at the time the decision to refuse to grant the visa is made…
In this case neither circumstance arise as:
1. Sukash Pty Ltd nomination application was refused on 19 June 2017. Accordingly the nomination was neither approved or pending at the time of the application of the Tribunal.
2. There is no evidence that Sukash Pty Ltd lodged an application for merits review that was pending at the time of the applicant’s application to the Tribunal.
Accordingly, no jurisdictional error arises.
By ground two, the applicant contends that he was denied the opportunity to put forward his case. There is no obligation on the Tribunal to send a letter inviting the applicant to comment on the validity of his application: (see; SZTVE v Minister for Immigration and Border Protection & Anor [2014] FCCA 1640). Notwithstanding this, the Tribunal did send such a letter to the authorised recipient. No response was provided. Thus, it cannot be said that the applicant was denied the opportunity to put forward his case. The fact is that the applicant did not take the opportunity that was provided.
Further, in any event, even if the Tribunal had denied the applicant an opportunity to put forward his case, and error will only amount to jurisdictional error if it had the possibility of depriving the applicant of a successful outcome: (see; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17). If the Court accepts that the Tribunal is correct in that it did not have jurisdiction, any denial of opportunity to put forward submissions could not possibly have changed the outcome. The Tribunal was still bound to find that it did not have jurisdiction.
CONSIDERATION
The relevant legislation in this case is to be found in s 338(2)(d) of the Act. It is as follows:
(d) if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i)the non-citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii)a review of a decision under section 140E not to approve the sponsor of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iii)a review of a decision under section 140GB not to approve the nomination of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iv)except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the regulations--the non-citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
Relevantly reg 4.02 of the Regulations provide:
(1A) For paragraph with 338(2)(d) of the act the following visas apply:
(b) A Subclass 407 (Training) visa
A condition precedent for the granting of a Training visa includes a decision in relation to the sponsor. A decision not to approve the sponsor includes both the approval of the sponsor under s 140E and the approval of a nomination under s 140GB of the Act: (see; Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182). Thus, while Sukash Pty Ltd had been approved as a sponsor such that it could make nominations, there was still a requirement that each individual nomination be approved by the Minister.
In this case, the nomination of the applicant by Sukash Pty Ltd was not approved. No application for a review of that decision with was made by Sukash Pty Ltd to the Tribunal. As a result, the applicant, at the time of the application to the Tribunal by him, was not the subject of a nomination that was approved or pending nor was the subject of a pending application for review before the Tribunal in relation to the decision not to approve his nomination for training visa by the Minister.
In these circumstances, the Court is satisfied that the Tribunal had no jurisdiction and that its decision in this regard was correct. Ground one has no merit.
The Court is also satisfied that the Tribunal afforded the applicant procedural fairness, although not strictly required to do so, by writing to him alerting him to the jurisdictional issue and requesting any submissions. The Court notes that the authorised representative of the applicant made no such submissions. Accordingly, the Tribunal was entitled to proceed in the manner that it did without the benefit of hearing orally from the applicant. No jurisdictional error arises as a result and ground two has no merit.
The applicant has either not been advised properly as to the process following the rejection of his application for a Training visa or has not understood the legal effect of the sponsor not seeking a review of the nomination of the applicant for a Training visa. The application for judicial review is misconceived.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 17 November 2021
0
3
2