Lam v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 954
Federal Circuit and Family Court of Australia
(DIVISION 2)
Lam v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 954]
File number(s): ADG 416 of 2019
ADG 148 of 2020Judgment of: JUDGE VASTA Date of judgment: 1 November 2022 Catchwords: MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. Legislation: Migration Act 1958 (Cth): s 65, s 140GB, s 338 , s 347
Administrative Appeals Tribunal Act 1975 (Cth): s 25
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 1 November 2022 Date of hearing: 1 November 2022 Place: Brisbane Counsel for the Applicants: The Applicants appearing on their own behalf with the assistance of an interpreter Solicitor for the Respondents: Sparke Helmore ORDERS
ADG 416 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAT TAI LAM
First Applicant
LY PHUNG MOC
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
1 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application filed 1 November 2019 as amended on 14 November 2019 be dismissed.
2.The First and Second Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,000.
THE COURT NOTES THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
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).
ORDERS
ADG 148 of 2020 BETWEEN: HENRY LAM (BY HIS LITIGATION GUARDIAN DAT TAI LAM)
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
1 November 2022
THE COURT ORDERS THAT:
1.The application filed on 17 April 2020 be dismissed.
2.There be no order as to costs.
THE COURT NOTES THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
[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
(Ex Tempore)JUDGE VASTA
On 24 January 2019, the Applicant, Dat Tai Lam, applied for a training visa. The visa was for him as the main Applicant, but secondary to his application, he applied for his wife and his son to be part of his visa. The visa was asked for on the basis that the employer had an approved nomination from the department.
The employer was a company called CFC1PSQ Parramatta Proprietary Limited and it traded as Chambers Fine Coffee. The employer needed to be an approved employer for the department and, if they were an approved employer, they could nominate certain people to work for them.
This was at the heart of the Applicant’s application for a visa; that is, that he was going to work for Chambers Fine Coffee as an employee. This meant that, unless Chambers Fine Coffee had been approved by the Department, the Applicant could not succeed in his application for this particular visa.
On 15 March 2019, the delegate of the Minister notified the Applicant that he did not have an approved nomination by his employer. The delegate invited the Applicant to comment on the fact that he did not have an essential pre-requisite for obtaining the visa; he did not reply to that invitation.
On 17 April 2019, the delegate refused to grant the visa. This was because he did not have an approved sponsor or an approved employer. The notification letter, that enclosed the decision, incorrectly advised the Applicant that he had no rights of merits review in relation to that decision. Nevertheless, on 26 April 2019, the Applicant applied to the AAT for review and the application was accepted.
On 15 July 2019, the Tribunal invited the Applicant to comment on that same information. That information was that the application was invalid because the Applicant did not have an approved sponsor or approved employer.
The Applicant provided submissions and evidence on 29 July 2019. He said that he had been the victim of third-party fraud on behalf of his migration agent. He said that he paid $85,650 to the agent to assist him in the visa application. He said that the agent set up a fake email address for him and directed the Department to that email address as the address for communication with the Applicant. He said that the Tribunal should find that the delegate’s decision was invalid, either due to third-party fraud or any other grounds of invalidity.
On 21 October 2019, the Tribunal made a decision that it had no jurisdiction in respect of this application. The Tribunal did find that the notice that was sent to the Applicant was incorrect when it stated that there was no right to a merits review, but that such an error was not material in the circumstances here.
The Tribunal was satisfied that, at the time of the decision of the delegate, the Applicant was not a person who had an approved nomination from a sponsor, which nomination had not ended. The Tribunal also found that there was no valid or pending application by Chambers Fine Coffee for a review before the Tribunal.
The Tribunal said that, as a result of those facts, s 338(2)(d) of the Migration Act 1958 (Cth) (“the Act”) meant that this delegate’s decision was not reviewable by the Tribunal. As I said, that decision was made on 21 October 2019 and, on 1 November 2019, the Applicant asked this Court to review that decision.
The Applicant had also asked for a review of the delegate’s decision regarding his infant son. The Tribunal gave a separate decision with regard to the infant son. In that decision, the Tribunal said that it had already made a decision that it did not have jurisdiction to determine the matter in respect of the Applicant, and this meant that the Tribunal didn’t have jurisdiction to look at the decision with regard to the infant son either. That decision was also made by the same tribunal on the same day, 21 October 2019. However, it was not until 17 April 2020 that an application on behalf of the son was filed in this Court, asking for this Court to review that decision.
When the matter first came before Registrar Carlton, on 7 February 2020, the Registrar made the usual directions as to the filing of material. The Registrar noted that, in the event that the Applicant filed a separate application for his son, the application he had filed for himself and his wife, be heard contemporaneously with that matter.
Both matters were mentioned before his Honour, Judge Lucev, on 27 May 2022. On that day, His Honour again made an order that the two matters be progressed and heard together. His Honour made other orders as far as the filing of the material was concerned. His Honour ordered that any further information be filed by 1 July 2022 and that the Minister file any material in response, by 29 July 2022.
Other than the submissions of the Minister, there was no other material filed. On 19 August 2022, his Honour transferred the file to me to be heard today, 1 November.
The Applicant has appeared today unrepresented and acting also as litigation guardian for his infant son. He has been assisted by an interpreter fluent in the Vietnamese language. The Applicant told me that everything that he wanted to say to the Court had already been communicated in writing. He said that evidence had been provided to back up what he said.
The grounds of the application are as follows:
1. The Administrative Appeals Tribunal (AAT) ought to have considered the evidence before it and exercise its jurisdiction according to the substantial justice and the merits of the case.
2. The AAT had jurisdiction to hear the applicant's matter pursuant to s 25 of the Administrative Appeals Tribunal Act 1975 and ss. 65 and 34 7 of the Migration Act 1958.
3. Sections 347 is enlivened because the applicants are the victims of third party fraud. The fraud extends to the s 65 delegate because the s 65 delegate was not able to exercise their statutory powers due to the misleading and deceptive conduct of the applicants' former migration agents.
4. By finding that it had no jurisdiction to review the decision of the delegate, the AAT failed to undertake the statutory task it is empowered to do and thereby committed a jurisdictional error.
The Applicant noted that the third-party fraud extended back to proceedings before the delegate. However, because this Court can only look at the decision of the AAT, this aspect of the notations in the grounds of application were not able to be further considered.
In looking at these grounds, it is clear that they are all one ground – that is, that the AAT erred in finding that it had no jurisdiction to hear the matter.
To answer this ground, the Court must look at “where does the jurisdiction to hear the matter come from”. The jurisdiction of the Tribunal to hear the matter does not come from s 65 of the Act. Section 65 of the Act gives the power to the delegate to make a decision, but does not talk about the jurisdiction of the Tribunal.
Section 347 of the Act does not give the jurisdiction to the Tribunal, but talks about what needs to be done in relation to “Part 5 reviewable decisions”. The decision has to be a “Part 5 reviewable decision”, before s 347 can be engaged.
Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) does not confer jurisdiction on the Tribunal. Section 25 simply states that there are other Acts that may provide that applications for reviews of decisions may be made to the Tribunal. The Migration Act 1958 (Cth) is such an Act, but one has to look at where, in that Act, jurisdiction is conferred on the Tribunal.
The power, or the jurisdiction, that is conferred upon the Tribunal, by the Act, is found in s 338.
Section 338(2)(d) applies to the visa by operation of reg 4.02(1A)(aa) of the Migration Regulations 1994 (Cth). In effect, it says that the Tribunal has jurisdiction over a decision regarding a visa if the visa is a temporary visa of a kind prescribed for the following purposes.
(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
(This did not apply to the Applicant because he was not the subject of an approved nomination.)
(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
(This did not apply to the Applicant because Chambers Fine Coffee was not asking for a review of any decision not to allow it to be an approved sponsor.)
(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
(Again, this did not apply to the Applicant because there was no review of a decision under section 140GB pending at the time.)
(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.
(Again, this did not apply to the Applicant because he was not sponsored by an approved sponsor.)
The Tribunal, therefore, correctly determined that the pre-requisites for jurisdiction, pursuant to s 338, had not been met. This means that the Tribunal was correct when it said that it did not have jurisdiction.
While the Applicant has alleged that his migration agent committed fraud, the allegation was not accompanied by evidence before the Tribunal that was sufficient to enable the fraud to be established. The orders of Judge Lucev were that the Applicant had to present any other evidence by 1 July 2022. This was simply not done.
But, in any event, even if there were an error established, the matter simply could not be sent back to the Tribunal because the Applicant does not have an essential pre-requisite for the granting of the visa. In other words, without an approved sponsor, the visa can simply not be granted.
For these reasons, both applications that are before me, must be dismissed with costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 21 November 2022
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