Lee v Minister for Immigration
[2015] FCCA 2736
•7 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2736 |
| Catchwords: MIGRATION – Review of decision of former Migration Review Tribunal – Tribunal lacking jurisdiction as the applicant lacked a sponsor at the relevant time – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules2001 (Cth) Migration Act 1958 (Cth), ss.140GB, 338, 347, 348 Migration Regulations1994 (Cth) |
| Farooq v Minister for Immigration [2008] FCA 946 Minister for Immigration v Islam [2012] FCA 195; (2012) 202 FCR 46 Minister for Immigration v Lee & Ors [2014] FCCA 2881; [2015] FCCA 2013 Kandel v Minister for Immigration & Anor [2015] FCCA 2013 |
| First Applicant: | HYEONJIN LEE |
| Second Applicant: | HYE MEE PARK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2192 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 7 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 7 October 2015 |
REPRESENTATION
| Solicitor for the Applicants: | Ms V. Tannous of MacKellars Lawyers |
| Solicitor for the Respondents: | Ms F. Taah of Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,875.
The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2192 of 2014
| HYEONJIN LEE |
First Applicant
HYE MEE PARK
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (The Tribunal). The decision was made on 14 July 2014. The Tribunal stated that it did not have jurisdiction in the matter. Background facts relating to the Tribunal decision and the visa application to which it relates are set out in the Minister’s outline of legal submissions filed on 21 August 2015.
The first named applicant (Mr Lee) is a South Korean national who first arrived in Australia on 25 August 2010.[1] On 7 June 2013, he electronically lodged an application for the visa with his wife, the second named applicant (Ms Park), included in the application as a member of his family unit.[2]
[1] Relevant Documents (RD) filed 17 September 2015 109
[2] RD 1-13
In the application, Mr Lee identified the nomination (business sponsor) to which the application related as Mill & Penn Management Pty Ltd (Mill & Penn).[3]
[3] RD 10
On 22 August 2013, a Department officer wrote to Mr Lee informing him that Mill & Penn did not have an approved nomination for him and requested evidence that he was subject to an approved nomination.[4]
[4] RD 48
On 11 February 2014, Mr Lee changed his nominated business sponsor from Mill & Penn to GNT Dream Pty Ltd (GNT).[5] GNT had, on 8 February 2014, lodged an application for standard business sponsorship with the Department nominating Mr Lee.[6]
[5] RD 51
[6] RD 55-65
On 27 March 2014, a delegate of the Minister refused the application for the visa.[7] The delegate found that Mr Lee did not satisfy clause 457.223(4)(a) of the Migration Regulations 1994 (Cth) (Regulations) because on 27 March 2014, a decision was made to refuse the application for standard business sponsorship approval lodged by GNT, meaning that Mr Lee was not the subject of an approved business nomination. Given Mr Lee did not satisfy the criteria of the 457 visa, Ms Park could not be granted a 457 visa.
[7] RD 77-80
On 17 April 2014, the applicants applied to the Tribunal for review of the delegate’s decision.[8]
[8] RD 81-91
On 2 June 2014, the Tribunal officer wrote to Mr Lee, noting that: [9]
[9] RD 112
For you to have made a valid application for review, at the time you lodged your application for review your sponsor either needed to be an approved sponsor, or to have a valid application for review of a decision not to approve a sponsorship application pending before the Tribunal.
…
The Department made a decision on 27 March 2014 to refuse an application for approval lodged by your sponsor, GNT Dream Pty Ltd, and there is no record of your sponsor having applied for review of the decision. Accordingly, I am of the view that your application is not a valid application as it appears that when you lodged the application your sponsor was not approved and your sponsor had not made a valid application to the Tribunal for review of a sponsorship decision. However, this is a matter which must be determined by a Tribunal member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, within 14 days of receiving this invitation.
No response was received from the applicants and on 14 July 2014, the Tribunal determined that it did not have jurisdiction to review the delegate’s decision not to grant the visa.[10]
[10] RD 115
Tribunal decision
The Tribunal found that the delegate’s decision was not an MRT-reviewable decision within the meaning of s.338(2) of the Migration Act 1958 (Cth) (Migration Act) and regulation 4.02(4) of the Regulations.
The Tribunal noted that s.338(2)(d) of the Migration Act specified that a decision to refuse a person a 457 visa is reviewable by the Tribunal if the person is sponsored by an approved sponsor at the time the application to review the visa refusal was made, or 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 refuse to grant the visa is made, review of the sponsorship decision is pending.
The Tribunal referred to the refusal of GNT as a standard business sponsor and to the lack of information indicating that GNT had sought review of that decision with the Tribunal.[11] The Tribunal found that at the time of the application for review of the decision to refuse the visa, Mr Lee was not sponsored by an approved business sponsor, nor was there any pending review of the decision not to approve the sponsor, and accordingly the requirements of s.338(2)(d) were not met.[12]
[11] RD 115 at [3]
[12] RD 115 at [5]
It followed that the application for review was not properly made under s.347 of the Migration Act, and, pursuant to s.348 of the Migration Act, the Tribunal did not have jurisdiction.[13]
[13] RD 115 at [7]
The present proceedings
These proceedings began with a judicial review application filed on 6 August 2014. At that time, the applicants were represented by solicitors. The application was supported by a short affidavit, which I have received into evidence subject to relevance. I also have before me the book of relevant documents filed on 17 September 2014.
The Minister’s submissions reproduce verbatim the grounds advanced in the application:
1) The Tribunal denied the applicant procedural fairness and natural justice in denying him then representative to assist the applicant in presenting his case.
2) The Tribunal denied the applicant procedural fairness and natural justice in not giving him the opportunity to properly consider his legal position, given his limitation in the legal system.
3)The Tribunal failed to determine the applicant’s application for review according to the law, in taking a view of the migration act and regulations that was unnecessarily limited and construed and which fitted the Tribunal member’s personal view rather than a comprehensive view of the relevant law.
This matter came before me for first court date directions on 15 September 2014. At that time, Mr Bangura appeared for the applicants and Ms Carr for the Minister. I made orders by consent preparing the matter for a hearing. At that time, the matter was to be heard on a final basis on 28 August 2015. On 28 August 2015, I made further orders adjourning to hearing to 2.30pm today. Subsequently, the applicants’ lawyers filed a Notice of Intention to Withdraw as Lawyer and a Notice of Withdrawal. The latter was filed on 23 September 2015.
The Notice of Intention to Withdraw and Withdrawal appear to be in conformity with the Federal Circuit Court Rules2001 (Cth). The solicitors provided an address for service and a mobile telephone number for the applicants. I am satisfied from those documents that the applicants were put on notice by their former lawyers of their circumstances and of the Court fixture today.
Before I came on the bench this afternoon, my deputy associate attempted to contact the applicants on their nominated mobile telephone number, with the assistance of the Korean interpreter who had been booked for this afternoon’s hearing. A person answered the call and, so I am told, stated that a lawyer was coming to Court and would arrive in about five minutes.
After about five minutes, Ms Tannous appeared on behalf of the applicants, although the status of her appearance was unclear. She understood that she was appearing as an agent, although not for a legal practitioner. It appears that her instructions had come from the applicants through a migration agent. Her only instructions were to apply for an adjournment of today’s hearing. I gave Ms Tannous leave to appear for that purpose. The only reason advanced in support of the adjournment application was that an application and supporting affidavit were in the course of preparation and an adjournment of several weeks would be sought.
I refused that application on the basis that the matter had been before the Court for a significant period; there had already been one adjournment; and the applicants had had ample opportunity to arrange alternative representation. At that point, Ms Tannous sought leave to withdraw, which I granted, while pointing out that the consequence would be that the applicants were not only unrepresented, but not in attendance.
In the circumstances, Ms Taah, who appeared for the Minister today, sought a substantive hearing on the application. I agreed to that course.
Consideration
The Tribunal’s decision was that it lacked jurisdiction in the absence of an approved sponsor for the applicants.
Relevant legislation
Class 457 visas are prescribed as a class of visa by item 1223A of Schedule 1 to the Regulations (Temporary Business Entry (Class UC)). The criteria for the granting of that class of visa are contained in Clause 457 of Schedule 2 to the Regulations. If a valid application for a 457 visa is made, the Minister must not grant a 457 visa unless (among other things) the Minister is satisfied that the criteria prescribed for that class of visa have been satisfied.
Clause 457 of Schedule 2 specifies criteria that must be satisfied at the time an application for a 457 visa is made, as well as specifying the criteria that must be satisfied at the time the decision is made whether to grant the 457 visa. Some of the criteria that need to be satisfied at the time of decision are contained in subclause 457.223(4) which is headed “Standard business sponsorship”. Relevantly, subclause 457.223(4) provides:
(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; and
…
Section 140GB of the Migration Act provides:
(1) An approved sponsor may nominate:
(a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant's proposed occupation; or
(ii) the program to be undertaken by the applicant or proposed applicant; or
(iii) the activity to be carried out by the applicant or proposed applicant; or
(b) a proposed occupation, program or activity.
(2)The Minister must approve an approved sponsor's nomination if:
(a)in a case to which section 140GBA applies, unless the sponsor is exempt under section 140GBB or 140GBC--the labour market testing condition under section 140GBA is satisfied; and
(b)in any case--the prescribed criteria are satisfied.
…
MRT-reviewable decisions
Section 338 of the Migration Act identifies decisions of the Minister which are reviewable by the Tribunal: MRT-reviewable decisions. Section 338(2) of the Migration Act provides:
(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:
(a)the visa could be granted while the non-citizen is in the migration zone; and
(b)the non-citizen made the application for the visa while in the migration zone; and
(c)the decision was not made when the non-citizen:
(i)was in immigration clearance; or
(ii)had been refused immigration clearance and had not subsequently been immigration cleared; and
(d)where it is a criterion for the grant of the 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 refuse to grant the visa is made, review of the sponsorship decision is pending.
Regulation 4.02(1A)(k) of the Regulations prescribes a 457 visa for the purposes of s.338(2)(d).
Relevant to these provisions, “sponsored” includes being identified in a nomination under s.140GB of the Migration Act.[14]
[14] see rule 4.02(1AA) of the Regulations
On the basis of the Minister’s submissions, I can find no fault with the Tribunal’s decision that it lacked jurisdiction. The applicants’ grounds and complaints, including the allegation of denial of procedural fairness and misapplication of the law, are all misconceived.
The Tribunal’s finding that Mr Lee did not have an approved sponsor when he applied for review to the Tribunal on 17 April 2014 was not only open to it, but it was the only conclusion that it could possibly have reached on the material before it. Relevantly, that material established that GNT’s application as a standard business sponsor had been refused by the Department on 27 March 2014.
Crucially, there was no evidence before the Tribunal that Mr Lee had an approved sponsor at the critical date for the purposes of s.338(2)(d)(i) of the Migration Act, that is, on 17 April 2014. Nor was there any evidence that GNT had sought review of the sponsorship decision with the Tribunal hence Mr Lee’s circumstances therefore did not fall within s.338(2)(d)(ii) either.
The Tribunal expressly considered the relevant legislative provisions and relevant facts in its reasons in determining that it had no jurisdiction. The Tribunal’s application of the legislative provisions in this case is not controversial. [15]
[15] See Minister for Immigration v Islam [2012] FCA 195; (2012) 202 FCR 46 (followed in Minister for Immigration v Lee [2014] FCCA 2881) and Farooq v Minister for Immigration [2008] FCA 946
The Minister notes that in the recent judgment of Kandel v Minister for Immigration & Anor, [16] Judge Street found that Mr Kandel was sponsored by an approved sponsor because he was “identified in a nomination” by an approved sponsor at the time he applied for review of his visa refusal decision, because a nomination was lodged with the Department, that was yet to be decided, hence the Tribunal had jurisdiction to review the visa refusal decision. Kandel is however distinguishable from the current matter because in the applicants’ case, there was no evidence before the Tribunal that the applicant was identified in a nomination by an approved sponsor under s.140GB of the Migration Act. There is also no evidence that after GNT was refused as a business sponsor, a further application for nomination by an approved sponsor identifying Mr Lee was lodged with the Department before the application for review of the decision to refuse the visa was lodged with the Tribunal. Nor was there any information suggesting that GNT sought review of the sponsorship decision with the Tribunal.
[16] [2015] FCCA 2013
It maybe accepted that s.338(2)(d)(i) will be satisfied if there is a nomination by an approved sponsor pursuant to s.140GB(1) of the Migration Act which is yet to be decided at the time of an application for review of a visa refusal decision to the Tribunal. Those facts, however, did not arise in the applicants’ case.
The grounds of review advanced in the application are misconceived. The applicants have failed to establish any jurisdictional error in the decision of the Tribunal. The decision is, therefore, a privative clause decision and the application must be dismissed. I will so order.
I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,875.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 October 2015
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