Lin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 97
•30 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 97
File number(s): PEG 329 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 30 September 2021 Catchwords: MIGRATION – Temporary Business Entry (Subclass 457) visa – decision of the Administrative Appeals Tribunal – relevant version of s 338 of the Act – whether the Tribunal had jurisdiction to review decision – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 338, 359A, 360, 476
Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018, Part 2 of Schedule 1
Migration Regulations 1994 (Cth), reg 4.02, cl 457.233 of Schedule 2
Cases cited: Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182
Cui v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2021] FedCFamC2G 96
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Yu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2021] FedCFamC2G 98
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of hearing: 17 September 2021 Place: Perth Counsel for the Applicant: Mr N Wong Solicitor for the Applicant: HRL Legal Counsel for the First Respondent: Mr P Macliver Second Respondent Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 329 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHUHAI LIN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
30 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 KENDALL:
INTRODUCTION
This application for judicial review was heard on 17 September 2021. It was heard with two other matters. The matter in PEG328/2020 (Cui v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2021] FedCFamC2G 96) was heard first. The matter in PEG330/2020 (Yu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2021] FedCFamC2G 98) was heard immediately after this matter.
The solicitor for the applicants in all three matters (Mr Wong) relied on identical grounds of review and identical written submissions for all three matters. In effect, Mr Wong’s written submissions in PEG328/2020 served as a template for this matter and PEG330/2020. Mr Wong also relied on and adopted oral submissions made during the hearing of PEG328/2020 and asked that those submissions be applied in this matter and PEG330/2020. Counsel for the Minister, in turn, relied on the same written and oral submissions advanced in in PEG328/2020 for this matter and PEG330/2020 (other than referencing relevant date changes and Tribunal and document references).
The reasons that follow necessarily (for the reasons outlined above) replicate those made by this Court in relation to PEG328/2020, with minor amendments made to the relevant factual background, dates and Tribunal references specific to this matter.
Judgments in relation to PEG328/2020 and PEG330/2020 have been or will be published separately.
BACKGROUND
The applicant is a citizen of China (Court Book (“CB”) 12). He arrived in Australia on a Temporary Business Entry (Class UC) (Subclass 457) (Temporary Work (Skilled)) visa in late 2013 (CB 17-18).
On 17 November 2014, the applicant applied for a further Temporary Business Entry (Class UC) (Subclass 457) (Temporary Work (Skilled)) visa (the “visa”) (CB 11-33). In that application, the applicant listed Max Builder & Development (Australia) Pty Ltd (“Max Builders”) as his “sponsoring employer” (CB 18).
On 8 December 2014, the then Department of Immigration and Border Protection (the “Department”) requested additional information from the applicant (CB 38-46).
On 14 March 2015, the Department requested further additional information from the applicant (CB 47-53).
The applicant provided the Department with his monthly income details and a statutory declaration (CB 54-56).
On 26 June 2015, the Department invited the applicant to comment on the fact that Max Builders did not have an approved nomination in relation to the applicant (CB 57-61). No response was provided.
The applicant obtained a new prospective sponsoring employer, Ausline Construction & Renovation Pty Ltd (“Ausline”). However, Ausline’s nomination was also refused.
On 26 May 2017, the Department again invited the applicant to comment on the fact that he was (again) not the subject of an approved nomination (CB 62-65). Again, no response was provided to the Department.
On 19 June 2017, the Department invited the applicant to comment on adverse information regarding an employment reference letter issued by Anshan City Huanyu Construction and Engineering Co, Ltd (CB 66-70).
On 12 July 2017, the applicant’s representative provided a response to that invitation via email, with supporting documents (CB 71-92).
The applicant subsequently obtained a further prospective sponsoring employer, Newlink Construction Group Pty Ltd (“Newlink”). However, on 18 December 2017, a delegate of the Minister’s refused to approve Newlink’s nomination (CB 103). The Department invited the applicant to comment on that nomination refusal (CB 93-96) but no response was received from the applicant.
On 7 January 2018, following the refusal of Newlink’s nomination application, Newlink applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of that nomination refusal decision (“the Newlink Application”) (Affidavit of Arran Gerrard affirmed 6 July 2021, Annexure ANG-1).
On 25 January 2018, a delegate of the Minister refused to grant the applicant the visa (CB 102-103). The delegate was not satisfied that the applicant met cl 457.223(4)(a) of the Migration Regulations 1994 (Cth) (the “Regulations”) as the applicant was not the subject of an approved nomination (CB 103).
On 6 February 2018, the applicant applied to the Tribunal for review of the delegate’s decision. He did so with the assistance of a registered migration agent (CB 104-105).
On 17 February 2020, Newlink was deregistered (Affidavit of Arran Gerrard affirmed 6 July 2021, Annexure ANG-2). On 14 April 2020, the Tribunal invited the applicant to comment on the deregistration (Affidavit of Arran Niall Gerrard affirmed 6 July 2021, Annexure ANG-3).
On 24 April 2020, the applicant, through his representative, provided a response to that invitation to the Tribunal advising that “the company [had] ceased to exist” (Affidavit of Arran Niall Gerrard affirmed 6 July 2021, Annexure ANG-3).
On 21 May 2020, the Tribunal found that it had no jurisdiction to review the Newlink Application as Newlink had ceased to exist as a legal entity and thus had no standing to continue with any application (Affidavit of Arran Niall Gerrard affirmed 6 July 2021, Annexure ANG-4).
On 17 September 2020, the Tribunal invited the applicant to comment, pursuant to s 359A of the Act, on information that it considered would be the reason, or part of the reason, for the Tribunal affirming the decision under review (CB 114-115). That information related to the fact that:
(a)the applicant was not the subject of an approved nomination;
(b)Newlink had been deregistered on 17 February 2020;
(c)the Tribunal had found that it had no jurisdiction to consider the Newlink Application; and
(d)legislative amendments commencing on 18 March 2018 meant that the Subclass 457 visa had been repealed and was “closed to new applicants”.
The invitation also advised that if the Tribunal did not receive a response “within the period allowed or as extended” the applicant would “lose any entitlement [he] might otherwise have had under the Migration Act 1958…” (CB 115).
The applicant did not provide a response to this invitation.
On 13 October 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 119-123).
On 29 October 2020, the applicant filed an application for judicial review of the Tribunal’s decision in this Court (CB 1-6). That application was supported by the affidavit of Mr Nathan Wong, affirmed on 28 October 2020, which annexed a copy of the Tribunal’s decision (CB 7-10). The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 5 pages long and spans 19 paragraphs. It also includes two pages containing extracts of the relevant legislative provisions.
The Tribunal began by identifying the type of visa under review. The Tribunal then noted that a delegate of the Minister had refused the visa (at [1]) and that the applicant had applied for the visa on 17 November 2014 (at [2]).
The Tribunal then summarised the legislative provisions and criteria relevant to the grant of the visa (at [3]).
The Tribunal detailed the delegate’s decision to refuse to grant the visa on 25 January 2018 on the basis that the applicant was not the subject of an approved nomination (the relevant nomination application being refused by the Department on 18 December 2017) (at [4]).
The Tribunal noted that it had invited the applicant to comment on information pursuant to s 359A of the Act. The relevant information was that the Tribunal had found that it had no jurisdiction in relation to the Newlink Application on the basis that Newlink had been deregistered on 17 February 2020 (at [5]).
The Tribunal also explained that it had informed the applicant that, due to amending legislation commencing on 18 March 2018, the 457 visa criteria was repealed and replaced. As a result, applications for approval of nominations in respect of outstanding 457 visa applications can no longer be made (at [6]).
The Tribunal confirmed that the invitation was sent to the last known address provided. Further, the invitation explained that, if comments were not provided by 1 October 2020, the applicant would lose any entitlement to a hearing he may have had under the Act (at [7]).
The Tribunal noted that it did not receive a response from the applicant and that, as such, the applicant was no longer entitled to appear before the Tribunal: s 360(3) of the Act. The Tribunal then explained that, where an applicant loses his or her right to a hearing, the Tribunal has no power to permit an appearance, citing Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.
On the basis of the above, the Tribunal proceeded to make its decision without an appearance from the applicant (at [7]) and without taking further steps to obtain comments from him.
The Tribunal identified that the issue in the present case was whether the applicant met the requirements of 457.223(4)(a) of the Regulations (at [11]), outlined those requirements (at [12]) and noted that the applicant had applied for the visa on the basis of a nomination made by Newlink. The Tribunal confirmed that the nomination was refused and Newlink had applied to the Tribunal for review of that decision (at [13]). The Tribunal also noted, however, that, during the processing of the review, Newlink had been deregistered and, as such, the Tribunal did not have jurisdiction in relation to the Newlink Application (at [14]).
The Tribunal confirmed that no response had been received in relation to the invitation to comment letter. The Tribunal then outlined that the evidence before it was that the nomination in respect of the applicant had been refused and that that decision could not be reviewed by the Tribunal. The Tribunal found that, as the applicant was not the subject of an approved nomination, he did not satisfy the requirements in cl 457.223(4)(a) of the Regulations (at [15]-[16]).
On the basis of the above, the Tribunal found that the requirements of cl 457.223(4) of the Regulations, and therefore the requirements of the visa, had not been met (at [17]-[18]). The Tribunal affirmed the decision not to grant the applicant the visa (at [19]).
PROCEEDINGS IN THIS COURT
The applicant filed an application for judicial review in this Court on 29 October 2020 which outlined three grounds of review, as follows:
1. The AAT does not have jurisdiction to review the application which is associated with the sponsor’s application, since the AAT decided that it had no jurisdiction to review the sponsor’s application.
2. The AAT erred in law in finding that the AAT continued to have jurisdiction to review the associated application when the AAT conceded that the AAT did not have jurisdiction to review the application lodged by the sponsor which was deregistered in February 2020.
3. The AAT erred in law in finding that the AAT can review the associated application when the basis no longer existed.
Although the applicant’s application for judicial review outlines those three grounds of review, the parties agree that “the sole issue before the Court is whether the Tribunal had jurisdiction to review the application”.
The application for judicial review was supported by an affidavit affirmed by Mr Wong on 28 October 2020 and filed on 29 October 2020.
The evidence before the Court thus includes the applicant’s application for judicial review dated 27 October 2020 and supporting affidavit (both filed on 29 October 2020), a Court Book numbering 123 pages (marked as Exhibit 1), correspondence provided to Chambers by Mr Wong via email on 16 September 2021 (marked as Exhibit 2) and the affidavits of Mr Arran Niall Gerrard (affirmed and filed on 6 July 2021) and Mr Wong (affirmed and filed on 9 July 2021).
The applicant was represented by Mr Wong. The Minister was represented by Mr Macliver of counsel. Both parties provided written submissions dated 4 August 2021 and 24 August 2021 respectively. Mr Wong and Mr Macliver also appeared at the hearing before the Court on 17 September 2021.
CONSIDERATION
Applicant’s submissions
Unfortunately, Mr Wong’s written submissions are not entirely clear (at [12]-[19). Nor were his oral submissions to the Court. In effect, Mr Wong’s main argument seems to be that the Tribunal did not have jurisdiction to hear his client’s application (and should not have heard it) because the Tribunal had previously determined that it did not have jurisdiction to hear an appeal from Newlink (his client’s nominator). That, Mr Wong seems to contend, means that (as per the requirements of s 368 – discussed below) there was “no pending nomination” from Newlink that allowed the Tribunal to assess his client’s application.
Given the above, it is perhaps “easier” (albeit less than ideal) to provide Mr Wong’s written submissions in full so that there is at least some context for the discussion that follows.
In full, Mr Wong’s written submissions, on behalf of the applicant, provide as follows:
BACKGROUND
3. The applicant is a Chinese National.
4.Mr. Cui was granted a subclass 457 visa in 2014 which expired on 12 December 2014.
5.Mr. Cui engaged my service to lodge a new subclass 457 visa on 29 October 2013 which was refused by the Department on 25 January 2018.
6.On 6 February 2018, I lodged an application for review at the AAT under Mr. Cui’s instructions.
7.On 21 May 2020, I received a letter from the AAT informing me that her Member R. Skaros had made her decision that the AAT did not have jurisdiction to review the nomination as New Link Pty Ltd was deregistered as a company.
8.On 17 September 2020, I received a letter from the AAT in relation to Mr. Cui’s individual application inviting my client to make comments on the issues in paragraph 7.
9.As New Link Pty Ltd nominated several persons, the AAT sent multiple letters inviting all the clients to make comments on the issue. However, I only sent two letters in response to the AAT in relation to two clients other than Mr. Cui stating my concerns that the AAT did not have jurisdiction since there were no pending applications for review of nomination or sponsorship as the issues were identical.
10.As I stated in my affidavit, I received a phone call from her member R. Skaros prior to her decision made on 13 October 2020 insisting that the AAT did have jurisdiction to continue to review my client’s application.
11.During the phone conversation with her member R. Skaros, I pointed out that the AAT conceded that the AAT did not have jurisdiction to review the individual application when there were no pending sponsor or nomination applications for review at the AAT by his member Peter Emmerton in 2019. However, her member R. Skaros did not accept my argument.
LAWS USED BY THE FIRST RESPONDENT TO REFUSE MY CLIENT’S VISA APPLICATION
12.Migration Act 1958 (the Act) 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) cl.457.223(4)(a) of Schedule 2 to the Regulations. A ‘standard business sponsor’ is a person who is an ‘approved sponsor’; and is approved as a sponsor in relation to the standard business sponsor class by the Minister, under s.140E(1) of the Act: ss.5 and 140E of the Act and rr.1.03 and 2.58 of the Regulations. It is therefore a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor and s.338(2)(d) applies: Ahmad v MIBP [2015] FCAFC 182 (Katzmann, Robertson and Griffiths JJ, 16 December 2015) (Ahmad) at [95]– [96].
13.Pursuant to the above laws, his member Peter Emmerton has stated very clearly in his decision made in 2019 that:
Therefore, such a decision is reviewable where, at the time the review application is made, either:
•the applicant is identified in a nomination under s.140GB of the Act by an approved sponsor. This includes a nomination application that has not yet been determined, or an approved nomination, but does not include a nomination that has been refused with no review pending of that refusal, or a nomination that has ceased (s.338(2)(d)(i)); or
•there is a pending application for review of a decision not to approve the sponsor under s.140E, or a pending review of a decision not to approve the nomination under s.140GB (s.338(2)(d)(ii)).
GROUNDS OF REVIEW
i.The AAT does not have jurisdiction to review the application, which is associated with the sponsor’s application, since the AAT decided that it had no jurisdiction to review the sponsor’s application.
ii.The AAT erred in law in finding that the AAT continued to have jurisdiction to review the associated application when the AAT conceded that the AAT did not have jurisdiction to review the application lodged by the sponsor which was deregistered in February 2020.
iii.The AAT erred in law in finding that the AAT can review the associated application when the basis no longer existed.
14.To a certain degree, the above three grounds are identical. As such, I am intending to merge the three grounds into one. The main argument as to whether the AAT has made a jurisdictional error in relation to this decision is focused on whether the preconditions on which this associated application relies exists.
15.The decision made by his member Peter Emmerton clearly manifested that there is a precondition for the AAT to review my client’s case, which is that there must be either a pending sponsor review application or a pending nomination application, without which the AAT will not have jurisdiction to accept my client’s application nor to continue to review the application unless my client’s application alone is a Part VI reviewable decision where there is an approved sponsorship or an approved nomination in place.
16.On 22 May 2020, her member conceded that the AAT did not have jurisdiction to review the nomination application as the company was deregistered.
17.Once the company was deregistered and there were no pending sponsor nor nomination application at the AAT, it therefore can be inferred that the associated individual application has lost its basis or the precondition which is a must for the AAT to continue to review the associated application.
18.As the individual application is associated with the pending sponsor or nomination application, once that basis or precondition is lost, the individual application consequently becomes unreviewable. It is illogical and meaningless by law to continue to review the associated application when the underlying pending sponsor or nomination application no longer exists.
19.His member’s decision made in 2019 is correct as per the law whilst her member R. Skaros’s decision is not consistent with the law.
CONCLUSION
20.It appears that the AAT has made two different decisions using the same laws against the same facts with different interpretations by the Members. Based on my understanding of the law, the decision made by his member Peter Emmerton is the correct interpretation of the law (s.338(2)(d) of the Migration Act) cited above whilst her member R Skaros’s decision is based on a wrong interpretation of the cited law as the sponsor or nomination applications cannot be treated as separate applications from my client’s individual application. Therefore, the precondition is a must for the AAT to continue to review the associated application, the absence of which is critical to the determination that there is no jurisdiction by the AAT. Thus, the AAT has made a jurisdictional error in deciding otherwise.
21.It is incorrect to treat the sponsor or nomination application and my client’s individual application as two separate matters as whether my client’s individual application is reviewable or not is purely dependent on the existence of the precondition to have either a pending sponsor or nomination application.
22.As such, I urge your Honour to make your determination as per the laws cited above.
Legislative provisions
In order for the Tribunal’s jurisdiction to be enlivened in relation to a review of the delegate’s decision, that decision must be a “Part 5-reviewable decision” within the meaning of s 338 of the Act.
In relation to this matter, it is noted that the provisions of s 338(2)(d) of the Act were amended between the time of the delegate’s decision (that being 25 January 2018) and the time of the Tribunal’s decision (that being 13 October 2020).
At the time of the delegate’s decision (25 January 2018), s 338(2)(d) of the Act relevantly provided (emphasis added):
338 Definition of Part 5‑reviewable decision
…
(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 a Part 5‑reviewable decision if:
…
(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.
On 13 December 2018, the Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018 No. 90, 2018 (the “Amendment Act”) commenced. Part 2 of Schedule 1 of the Amendment Act relevantly provided (emphasis added):
Part 2—Review of decisions relating to certain visas
Migration Act 1958
4 Paragraph 338(2)(d)
Repeal the paragraph, substitute:
(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.
5 Application of amendments
The amendments of section 338 of the Migration Act 1958 made by this Part apply in relation to decisions made after this item commences.
The new provisions, as enacted by the Amendment Act, thus only apply in relation to decisions made after the Amendment Act commenced. Hence, the new provisions only relate to decisions made after 13 December 2018.
Here, the delegate’s decision was made on 25 January 2018. The delegate’s decision is therefore a decision that was made before the Amendment Act commenced. On that basis, the Amendment Act and the provisions it inserts do not have application in relation to the delegate’s decision in this matter.
On the basis of the above, the version of the Act relevant to this matter is that which was in force at the time of the delegate’s decision of 25 January 2018 – that is, s 338(2)(d) of the Act as outlined at [46] above.
Did the Tribunal here have jurisdiction to hear the applicant’s application?
As discussed at [55] above, relevant to this matter is s 338(2)(d) of the Act (in force at 25 January 2018). For ease of reference, that provision relevantly provided as follows (emphasis added):
338 Definition of Part 5‑reviewable decision
…
(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 a Part 5‑reviewable decision if:
…
(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) of the Regulations, as at 25 January 2018, prescribed that the applicant’s visa was one which was subject to s 338(2)(d) of the Act.
Regulation 4.02(1A) provided as follows (emphasis added):
4.02 Part 5‑reviewable decisions and who may apply for review
…
(1A) For paragraph 338(2)(d) of the Act, the following visas are prescribed:
(a) a Subclass 401 (Temporary Work (Long Stay Activity)) visa;
(aa) a Subclass 402 (Training and Research) visa;
(b) a Subclass 407 (Training) visa;
(c) a Subclass 416 (Special Program) visa;
(e) a Subclass 420 (Entertainment) visa;
(k) a Subclass 457 (Temporary Work (Skilled)) visa;
(l) a Subclass 488 (Superyacht Crew) visa.
In Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 (“Ahmad”), the Full Court of the Federal Court considered the meaning of the words “sponsored by an approved sponsor” in s 338(2)(d) of the Act and determined:
97.The next question is the meaning of the words “sponsored by an approved sponsor” in s 338(2)(d)(i).
98.The definition of the word “sponsored” in s 337, which applies to s 338 (see [34] above), picks up the meaning of the word “sponsored” in the regulations. Regulation 4.02(1AA) states that for s 337, sponsored includes being identified in a nomination under s 140GB. It follows that “sponsored by an approved sponsor” in s 338(2)(d)(i) includes not only “approved sponsor” as defined in s 5(1) of the Migration Act (relevantly, a person who has been approved by the Minister under s 140E) but also includes, by virtue of reg 4.02(1AA), being identified in a nomination under s 140GB.
In relation to the Tribunal’s jurisdiction under s 338(2)(d)(ii) of the Act, the Full Court in Ahmad further held (emphasis added):
99.Turning to s 338(2)(d)(ii), the expression “decision not to approve the sponsor” includes both the approval of the sponsor under s 140E and the approval of the nomination under s 140GB.
100.On the facts of the present case, an application for review of the decision not to approve the sponsor had been made and was pending at the time the application to review the decision to refuse to grant the visa to Mr Ahmad was made.
101. It follows that the Tribunal had jurisdiction.
In relation to the present matter, in order for the Tribunal to have jurisdiction, it required that (at the time of application to the Tribunal) either:
(a)the applicant was the subject of a nomination that was approved or pending: Ahmad; or
(b)there was a pending application for review before the Tribunal in relation to the decision not to approve the nomination.
The time at which the Newlink Application needed to be pending was at the time the application to review the decision to refuse to grant the applicant the visa was made.
Here, the relevant factual background is as follows:
(a)on 18 December 2017, the Department refused the Newlink nomination (CB 103 and Affidavit of Arran Gerrard affirmed 6 July 2021, Annexure ANG-1);
(b)on 7 January 2018, the Newlink Application was filed with the Tribunal (Affidavit of Arran Gerrard affirmed 6 July 2021, Annexure ANG-1);
(c)on 25 January 2018, a delegate refused to grant the applicant the visa (CB 102-103);
(d)on 6 February 2018, the applicant lodged the application for review with the Tribunal (CB 82-83); and
(e)on 21 May 2020, the Tribunal found that it did not have jurisdiction in relation to the Newlink Application (Affidavit of Arran Gerrard affirmed 6 July 2021, Annexure ANG-4).
It follows then that from 7 January 2018 (being the time the Newlink Application was filed with the Tribunal) to 21 May 2020 (being the time that the Tribunal found it did not have jurisdiction to in relation to the Newlink Application), the review of the sponsorship decision (being the Newlink Application) was pending.
The application for review of the delegate’s decision in relation to the visa was filed with the Tribunal on 6 February 2018. This falls within the time that the review of the Newlink Application was pending.
The application filed with the Tribunal for the review of the delegate’s decision to refuse the visa satisfied s 338(2)(d)(ii) of the Act. The decision of the delegate was therefore a “Part 5-reviewable decision” by operation of ss 338(2)(d)(ii) and 338(9) of the Act.
The Court is satisfied that the Tribunal did have jurisdiction to review the decision to refuse the visa and was correct to so find.
In the circumstances, the Tribunal was legislatively entitled, on the facts before it, to determine that, as the applicant was not the subject of an approved nomination, he did not satisfy the requirements in cl 457.223(4)(a) of the Regulations (at [15]-[16]). The applicant was not the subject of a valid nomination and in those circumstances the Tribunal made the only decision open to it – that is, to affirm the decision to refuse the applicant the visa.
No jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review filed by the applicant on 29 October 2020 has failed to identify any jurisdictional error. The Court is satisfied that the Tribunal had jurisdiction to review the decision of the delegate (dated 25 January 2018) to refuse the visa and no error arises in relation to the Tribunal’s substantive decision affirming the delegate’s decision to deny the applicant the visa he was seeking.
The application is, accordingly, dismissed.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 September 2021
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