Ling v Minister for Immigration

[2015] FCCA 1604

FEDERAL CIRCUIT COURT OF AUSTRALIA

LING v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1604

Catchwords:
MIGRATION – Migration Review Tribunal – Temporary Business Entry (Class UC) visa – jurisdiction of the Tribunal – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – Show cause – application dismissed.

Legislation:  
Migration Act 1958 ss.338, 476

Ahmad v Minister for Immigration & Anor [2015] FCCA 1486
Minister for Immigration v Lee & Ors [2014] FCCA 2881

Applicant: LAN LING

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1245 of 2015

Judgment of: Judge Street

Hearing date: 11 June 2015

Date of Last Submission: 11 June 2015

Delivered at: Sydney

Delivered on: 11 June 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms B. Rayment
Australian Government Solicitor

ORDERS

1. The application be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules.

2. The applicant pay the first respondent’s costs fixed in the sum of $3416.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1245 of 2015

LAN LING

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 24 April 2015 holding that the Tribunal did not have jurisdiction to conduct a review of the decision of the delegate, refusing the applicant a Temporary Business Entry (Class UC) visas. 

2. The application identifies the following ground:

   Tribunal has jurisdiction to review my visa cases.   

3. The application also identifies, under First Court Date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding. 

4. The applicant sought an adjournment for more time to obtain legal advice and/or to amend the application.  The application was opposed.  The first respondent tendered a letter of 14 May 2015 identifying the requirement to attend the first Court date.  The applicant acknowledged that the letter was sent to her correct address but disputed receiving the same.  I find the applicant received the letter of 14 May 2015.  A further letter was tendered by the first responded dated 3 June which relevantly said in the last sentence:

   You should also be aware that rule 10.01 (Federal Circuit rules) provides that at the first Court date the Court may hear and determine all or part of the proceedings.

5. The applicant acknowledged receiving that letter, and the applicant acknowledged receiving the Court book. 

6. There is no utility in granting an adjournment in a proceedings that are doomed to failure, as to do so will only unnecessarily increase the costs of the parties and utilise limited Court time.  For the reasons given, these proceedings are clearly doomed to failure. 

7. The Tribunal relevantly found:

   4. Following the decision of the Federal Circuit Court in MIBP v Lee [2014] FCCA 2881, for the purposes of s.338(2)(d)(i) there must have been, at the time the review application was made, a nomination of an occupation approved and in force. For the purposes of s.338(2)(d)(ii), there must have been at the relevant time, a review of a sponsorship refusal decision pending before the tribunal. The tribunal does not have jurisdiction where an application for review of a decision to refuse a nomination was pending at the time the review application was lodged, as s.338(2)(d)(ii) only refers to review of a decision not to approve the sponsor.

   5. In this case, the associated nomination of an occupation under s.140GB was not approved by the Department of Immigration and Border Protection (the department) and that decision was subject to a review application made on 27 June 2014. By separate decision the tribunal has affirmed the decision of the department in respect of the related nomination.

   6. The tribunal wrote to the applicant on 13 March 2015 inviting comments on whether a valid application for review had been made. The applicants provided documents after this but most appeared related to submissions concerning the related nomination and have been considered in respect of that determination. Among those documents the applicants have included a copy of an earlier decision 1206034 where the tribunal, differently constituted, considered an earlier application for review in respect of a Subclass 457 visa. It is the case that in the past the tribunal took a different view of its jurisdiction in respect of such matters, however that view was found to be wrong in the matter of Lee.

   7. The tribunal finds that at the time the review application was lodged, there was no nomination of an occupation relating to any applicant that was approved under s.140GB of the Act and was in force. While the relevant sponsor was approved as a standard business sponsor before this application for review was made and that remained in force on 28 June 2014, Lee has found this does not satisfy s.338(2)(d)(i). As the sponsor had been approved there was no relevant application for review of a decision not to approve the sponsor which was pending before the tribunal for the purpose of s.338(2)(d)(ii).

   8. The tribunal therefore finds that the requirements of s.338(2)(d) are not met in respect of any applicant.

   9. Accordingly, the tribunal finds that the decisions to refuse the applicants Subclass 457 visas are not an MRT reviewable decisions in accordance with s.338(2)(d) and r.4.02(1A). As the delegate’s decisions are not MRT-reviewable in these circumstances it follows that the application for review was not properly made under s.347 for review of MRT-reviewable decisions for the purposes of s.348 and the tribunal does not have jurisdiction in this matter.

8. There was no jurisdictional error by the Tribunal in holding that it did not have jurisdiction. The Tribunal was correct in its findings in respect of s.338(2)(c)(i), and in following the decision of Minister for Immigration v Lee & Ors [2014] FCCA 2881, as to the requirement at the time of the review application, that there must be a nomination of an occupation approved and in force.

9. The Tribunal was also correct in respect of the requirements of s.388(2)(c)(ii) that there must at the relevant time be a review of a sponsorship refusal decision pending before the Tribunal. The Tribunal was correct in concluding that the Tribunal did not have jurisdiction where an application for review of a decision to refuse a nomination was pending at the time of the review application being lodged, as s.338(2)(d)(ii) refers to a review of a decision not to approve the sponsor. That consideration is correct and consistent with the decision of this Court of Ahmad v Minister for Immigration & Anor [2015] FCCA 1486.

10. It is those circumstances there is no substance in the assertion by the applicant that the Tribunal had jurisdiction to review the applicant’s case. That assertion is clearly wrong. The Tribunal had no jurisdiction. The application fails to disclose any arguable case of jurisdictional error. I dismiss the application under r.44.12.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  12 June 2015