Luvu v Minister for Immigration

[2013] FCCA 1952

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUVU & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1952

Catchwords:
MIGRATION – Application of class 457 visa – delegate refuses application because sponsor identified in application not an approved sponsor under s.140E of the Migration Act 1958 – whether delegate’s decision is an “MRT-reviewable decision” – whether delegate’s misstatement of name of applicant for approval under s.140E discloses jurisdictional error – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5, 29, 31, 140E, 140G, 140GB, 140M, 338

Migration Regulations 1994 (Cth), reg. 1.20, 2.01, 2.03, 2.58, 2.59, 2.72, 4.02 cl. 457.223

First Applicant:

Second Applicant:

Third Applicant:

Fourth Applicant:

Fifth Applicant:

PAULIASI LUVU

SERENA MILLER

WAGA VE VE NI MASINIKA

CHRISTOPHER MASINIKA

LUCYANNA TOLOI MASINIKA

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 62 of 2013

Judgment of: Judge Manousaridis

Hearing date: 2 October 2013

Delivered at: Sydney

Delivered on: 22 November 2013

REPRESENTATION

The Applicant in person.

Counsel for the Respondents: Mr Smith

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The first applicant pay the first respondent’s costs in the amount of $6,646.

3. The name of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 62 of 2013

PAULIASI LUVU

First Applicant

SERENA MILLER
Second Applicant

WAGA VE VE NI MASINIKA
Third Applicant

CHRISTOPHER MASINIKA
Fourth Applicant

LUCYANNA TOLOI MASINIKA
Fifth Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 5 March 2012 the first named applicant, Mr Luvu, lodged with the first respondent (Minister) an application for a Temporary Business Entry (Class UC) visa (457 visa). Mr Luvu applied as a person nominated by an Australian business which Mr Luvu identified as “SSP Stones Pty Limited” (SSP Stones).

2. On 31 May 2012 a delegate of the Minister refused to grant Mr Luvu a 457 visa because the delegate was not satisfied that subclause 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Regulations) had been satisfied. The delegate said:[1]

   On 17/04/2012, a decision was taken by the Department to refuse the application for standard business sponsorship approval lodged by the applicant’s prospective employer, SSP MARBLE AND GRANITE PTY LTD. As the primary applicant’s prospective employer is not an approved standard business sponsor, the nomination application lodged by the primary applicant’s prospective employer was unable to be assessed.

   As the primary applicant’s business activity is not subject to an approved business nomination, I am therefore not satisfied that paragraph 457.223(4)(a) has been met.

   [1] CB26

3. Mr Luvu applied to the second respondent (Tribunal) for review of the delegate’s decision. On 20 December 2012 the Tribunal decided it had no jurisdiction to determine Mr Luvu’s application for review. It so concluded because, at the time the delegate refused Mr Luvu’s application for a 457 visa, Mr Luvu was not “sponsored” by an “approved sponsor”, and a review of the decision not to approve the sponsor was not pending.

4. In his application to this Court, Mr Luvu seeks judicial review both of the delegate’s decision of 31 May 2012 and of the Tribunal’s decision of 20 December 2012. The essential ground on which Mr Luvu seeks judicial review is the contention that the delegate dealt with Mr Luvu’s application on the incorrect assumption that Mr Luvu’s business sponsor was SSP Marble & Granite Pty Limited (SSP Marble) when, in truth, the business sponsor was SSP Stones.

5. The Minister submits that Mr Luvu’s application should be resolved by determining whether the Tribunal had jurisdiction to review the delegate’s decision. He submits the Tribunal did not have jurisdiction. The Minister’s submission assumes, however, that if the Tribunal had no jurisdiction to review the delegate’s decision this Court does not have jurisdiction under s.476 of the Migration Act 1958 (Cth) to review the delegate’s decision for jurisdictional error. For the reasons that appear later, Mr Luvu’s application can be resolved without my having to decide whether or not the Minister’s assumption is correct.

6. I propose to approach the issues raised in this application as follows. First, I will review the regulations governing the granting of 457 visas. That review will show that a 457 visa can only be granted to an applicant who has been nominated by a sponsor, approved as such under s.140E of the Act, in relation to an actual or proposed occupation of the applicant. Second, I will examine the definition of “MRT-reviewable decision” contained in s.338 of the Act and consider in what circumstances the Minister’s refusal to grant a 457 visa may be an “MRT-reviewable decision” within the meaning of s.338 of the Act. That examination will show that the Minister’s decision to refuse to grant a 457 visa will be an “MRT-reviewable decision”, and therefore, reviewable by the Tribunal, only if, among other things, the applicant for the 457 visa was sponsored by a person who was, at the time the decision to grant the visa is made, a sponsor approved as such under s.140E of the Act. Third, I will set out the facts relating to the application by SSP Stones to be an approved sponsor. Fourth, I will consider the facts surrounding Mr Luvu’s application for review by the Tribunal. Finally, I will set out my conclusions on Mr Luvu’s application and the reasons for my conclusion.

457 visas

1. Under s.29 of the Act, the Minister may, subject to the Act, grant a visa to a non-citizen. The visas the Minister may grant include those that fall into a class of visas that are prescribed by regulations made pursuant to s.31(1) of the Act. The granting of such visas may be made subject to the satisfaction of criteria prescribed by regulations made pursuant to s.31(3) of the Act.

2. Classes of visas, as envisaged by s.31(1) of the Act, have been prescribed by reg.2.01 of the Migrations Regulations 1994 (Regulations). These classes are described in the respective items in Schedule 1 to the Regulations. Additionally, criteria for the granting of visas of particular classes have been prescribed by reg.2.03 of the Regulations. The criteria for each class of visas are set out in a relevant Part of Schedule 2 to the Regulations.

3. 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 Sub-class 457 of Schedule 2 to the Regulations. If a valid application for a 457 visa is made, the Minister (or a delegate of 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.

4. Subclass 457 of Schedule 2 specifies criteria that must be satisfied at the time the application for a 457 visa is made. One of these is that the applicant holds a “substantive visa, other than a Subclass 771 (Transit) visa or special purpose visa”. Subclass 457 also specifies criteria that must be satisfied at the time the decision is made to grant the 457 visa. One of these is contained in subclause 457.223(4) which is headed “Standard business sponsorship”. Subclause 457.223(4)(a), in part, provides:

   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; and

   (iii)the approval of the nomination has not ceased as provided for in regulation 2.75…

5. Section 140GB(1) of the Act provides:

   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.

6. An “approved sponsor” is defined in s.5(1) of the Act as a person who has been approved by the Minister under s.140E of the Act in relation to a class prescribed by the regulations for the purpose of s.140E(2) and whose approval has not been cancelled under s.140M of the Act, or otherwise ceased to have effect under s.140G in relation to that class. Section 140E(1) provides that the Minister must approve a person as a sponsor in relation to one or more classes prescribed for the purpose of s.140E(2) if prescribed criteria are satisfied. Subsection 140E(2) provides that the regulations must prescribe classes in relation to which a person may be approved as a sponsor. Regulation 2.58 of the Regulations has prescribed a number of “classes of sponsor in relation to which a person may be approved as a sponsor”. One of those classes is “a standard business sponsor”. Criteria for the approval of a person as a standard business sponsor have been prescribed by reg.2.59 of the Regulations.

7. Section 140GB(2) provides that the Minister must approve a nomination made under s.140GB(1) if “prescribed criteria are satisfied”. Criteria for approval of nomination by a “standard business sponsor” have been prescribed by reg.2.72 of the Regulations.

8. The effect of these provisions is that one set of criteria which the Minister must be satisfied exists before a 457 visa must be granted comprise the following elements:

   a)there is a person who has been approved as an approved sponsor under s.140E of the Act; and

   b)that person has made a nomination under s.140GB(1) which satisfies the criteria prescribed by reg.2.72 of the Regulations, one of which is the identification of the person who is intended to be the holder of the 457 visa.

MRT-reviewable decisions

1. Section 338 of the Act identifies decisions of the Minister which are reviewable by the Tribunal. These decisions are called “MRT-reviewable decisions”. Relevant to this application is s.338(2) of the Act which provides:

   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.

2. Regulation 4.02(1A)(k) of the Regulations prescribes a 457 visa for the purposes of s.338(2)(d).

3. Section 337 of the Act provides, among other things, that the word “sponsor” has the same meaning for the purposes of s.338 as in the Regulations. Regulation 1.20(1) provides that the “sponsor of an applicant for a visa” is a person who undertakes the obligations specified in reg.1.20(2) of the Regulations.

4. In my opinion, each of the criteria specified by subclause 457.223(4)(a) of Schedule 2 to the Regulations is a criterion that falls within s.338(2)(d) of the Act. Accordingly, the decision made by the delegate refusing to grant a 457 visa to Mr Luvu in this case can only have been an MRT-reviewable decision if, at the time the delegate refused to grant the 457 visa, Mr Luvu was sponsored by an approved sponsor or, if Mr Luvu had a sponsor who had not been approved as an approved sponsor of Mr Luvu, there was pending an application by that sponsor of a review of the decision not to approve the sponsor as an approved sponsor.

SSP Stones’ application for approval under s.140E

1. Either on 2 or 5 March 2012 SSP Stones lodged with the Department of Immigration and Citizenship (DIAC) form 1196S for approval as a sponsor under s.140E of the Act.[2] The form stated that SSP Stones was a “Standard Business Sponsor” and recorded “1670515108” as the approval number. With that form, SSP Stones lodged form 1196N nominating Mr Luvu as an overseas person to work temporarily in Australia. The document also recorded that SSP Stones was an approved “Standard Business Sponsor”, stating that SSP Stones had been “previously approved” and noting “1670515108” as the approval number. SSP Stones, however, was not a “Standard Business Sponsor”. The number “1670515108” that was included in these three documents was the number that DIAC had previously assigned to an application made by a different company, SSP Marble.

   [2] There are two date stamps on the application.

2. On 15 March 2012 a case officer from DIAC sent an email to “touficlaba” with a copy to “ssp.stone”. The expression “touficlaba” is the contact display name for the email address of Toufic Laba Sarkis, an accredited interpreter, and a person who represented himself to DIAC as a “community volunteer”. DIAC’s email stated that “[t]his letter refers to your application for approval as a Standard Business Sponsor which was lodged with this office on 02/03/12”, and then set out information DIAC required. The email also stated: “In reply please quote: Sponsor name: SSP MARBLE AND GRANITE PTY LTD”.

3. The information requested by DIAC in the email of 15 March 2012 was provided by Mr Sarkis under cover of a letter dated 5 April 2012. In his letter, Mr Sarkis referred to DIAC’s request of 16 March 2012. I am satisfied, however, that Ms Sarkis intended to refer to DIAC’s email of 15 March 2012. Under cover of Mr Sarkis’ letter was a letter dated 5 April 2012 on the letter-head of SSP Stones signed by Mr Prasad, a director of SSP Stones. Mr Prasad’s letter listed a number of documents. These included a letter from the Australian Securities and Investments Commission to Mr Prassad which concerned Mr Prassad’s new role as company office holder of SSP Stones, a notification issued by the Australian Taxation Office to SSP Stones of its Australian Business Number, and a business activity statement of SSP Stones.

4. On 17 April 2012 a delegate of the Minister decided to refuse an application lodged by “SSP Marble and Granite Pty Ltd” for approval under s.140E of the Act. The Minister submits that I should infer that this decision relates to the application that SSP Stones lodged and that the delegate’s addressing the decision to “SSP Marble and Granite Pty Ltd” was due to the inclusion of the number 1670515108 in SSP Stone’s application which it lodged by 5 March 2012. I agree. Page 4 of the delegate’s decision notes that on 16 April 2012 “the applicant provided . . . information relating to” the criterion specified in reg.2.59(d) of the Regulations, and the delegate identified the information that had been provided. That information is the information that was referred to in the letter dated 5 April 2012 from SSP Stones.

5. Thus, at the time the delegate refused Mr Luvu’s application, namely, 31 May 2012, SSP Stones had not been approved as an approved sponsor under s.140E of the Act. And there is no evidence, and it has not been suggested that as at that date, SSP Stones had applied for a review of the delegate’s decision of 17 April 2012 not to approve SSP Stones as an approved sponsor under s.140E of the Act.

Application to Tribunal

1. On 15 June 2012 Mr Luvu applied to the Tribunal for review of the delegate’s decision. On 17 August 2012, an officer of the Tribunal wrote to Mr Luvu stating that the officer was of the view that when Mr Luvu lodged his application for review, the sponsor Mr Luvu nominated in his application for a 457 visa was not approved, and the sponsor had not made a valid application to the Tribunal for a review of the delegate’s decision of 17 April 2012. The officer invited Mr Luvu to make comments on whether a valid application was made.

2. The Tribunal officer’s letter of 17 August 2012 was met with a response from Mr Sarkis in a letter dated 10 September 2012. Mr Sarkis said:

   The Delegate of the Minister refused the nomination of SSP Marble and Granite Pty Ltd which is no longer operating. The Delegate of the Minister was notified that the sponsor is SSP Stones Pty Ltd and not SSP Marble and Granite. No action was taken to rectify the error.

   The sponsor decided to lodge an application for review to protect the rights of the visa applicant.

   The sponsor again lodged a fresh sponsorship and nomination for SSP Stones Pty Ltd which was received by the Department on Friday 7 September 2012.

3. Although Mr Sarkis stated in his letter that the “sponsor decided to lodge an application for review to protect the rights of the visa applicant”, there is no evidence to suggest that either SSP Stones or SSP Marble applied for review of the delegate’s decision of 17 April 2012.

4. On 12 September 2012, the Tribunal officer sent an email to an officer of DIAC requesting clarification about whether Mr Luvu was sponsored by SSP Stones or SSP Marble and how the delegate linked SSP Marble with Mr Luvu. The officer stated:

   The only link that was evident to me was that the number “1670515108’ was entered in forms 1196S and 1196N against “Approval or agreement number” and in form 1066 against question 40 “If the application for approval as a standard business sponsor and nomination application have been lodged or approved, please indicate the Nomination Permission Request Identifier or the nomination approval number”.

5. The DIAC officer to whom this email was addressed responded to the Tribunal officer by email sent on 19 September 2012 which stated:

   The client is in fact SSP Stones Pty Ltd ABN 99130938751 as their current Sponsorship has expired, however are [sic] records show it was receipted under the company called SSP MARBLE & GRANITE PTY LIMITED ABN 28081980887

   Furthermore to the above, the decision record was intended to be for SSP Stones Pty Ltd and was instead applied against client SSP Marble & Granite Pty Limited ABN 28081980887.

6. By letter dated 5 November 2012, Mr Sarkis informed the Tribunal that SSP Stones Pty Limited “is now an approved sponsor as well as the nomination is also improved”. Mr Sarkis expressed his hope that the Tribunal would “be in a position to finalise this case without any further delay or any further hearing”.

7. On 20 December 2012, the Tribunal decided it did not have jurisdiction to determine Mr Luvu’s application for review. The reason for its conclusion was that, at the time Mr Luvu made his application for review of the delegate’s decision, Mr Luvu was not “sponsored” by an “approved sponsor”, and no review of a decision to not approve the sponsor was pending.

Grounds of application and parties’ submissions

1. In his application, Mr Luvu claims that neither the delegate’s or the Tribunal’s decision can stand because the delegate had dealt with Mr Luvu’s application on the incorrect basis that it was SSP Marble who was Mr Luvu’s sponsor, whereas the correct sponsor was SSP Stones. This ground was expanded in written submissions Mr Luvu provided to the Court. In those submissions, Mr Luvu noted that, given that the delegate refused SSP Marble, not SSP Stones, it was not possible for SSP Marble to apply for a review of that decision “because SSP Marble and Granite Pty Ltd does not exist and never applied for an approval as a standard business sponsor”.

1. The Minister, on the other hand, submits that the issue raised by Mr Luvu’s application “is better stated as being whether or not the Tribunal had jurisdiction to review the delegate’s decision”. The Minister further submits that the Tribunal did not have jurisdiction.

2. In response to the Minister’s submissions Mr Luvu submitted:

   a)the Minister’s submission is “unreasonable as the error made by both the Department as well as the Tribunal was of such significance that the decision should be overturned”;

   b)the delegate “failed to apply the law and to assess the sponsorship application and the nomination application correctly”;

   c)had the delegate originally dealt properly with the application SSP Stones would have been approved immediately and the 457 visa would have been granted;

   d)the delegate’s method in deciding to refuse to grant Mr Luvu the 457 visa for which he applied were not consistent with natural justice and the lack of properly receiving the application deprived Mr Luvu of the opportunity to obtain approval;

   e)the decision of the delegate was extremely unreasonable.

Did the Tribunal have jurisdiction?

1. There is no doubt in my mind that the Tribunal was correct to conclude it had no jurisdiction to review the delegate’s decision not to grant to Mr Luvu a 457 visa. As I have concluded earlier in these reasons, the criterion specified in sub-clause 457.223(4)(a) of Schedule 2 to the Regulations for the issue of a 457 visa requiring that the applicant for the visa be sponsored by a sponsor approved as such under s.140E of the Act is a criterion to which s.338(2)(d) of the Act applies. In his application, Mr Luvu identified SSP Stones as his sponsor. SSP Stones, however, was not approved as a sponsor as at 31 May 2012. Nor was there pending as at that date any application by SSP Stones for any review of a decision refusing to approve SSP Stones as a sponsor.

2. Even if I were to assume the delegate dealt with Mr Luvu’s application on the incorrect basis that Mr Luvu’s sponsor was SSP Marble rather than SSP Stones, that would not alter the fact that, at the time the delegate refused to grant Mr Luvu the 457 visa, SSP Stones was not an approved sponsor.

3. This, however, is not the central question as raised by Mr Luvu. For Mr Luvu, the central question is whether the mistake he claims the delegate made is one which renders the delegate’s decision invalid.

Delegate’s decision

1. Mr Luvu’s application assumes this Court has jurisdiction to hear his challenge to the delegate’s refusal to grant Mr Luvu a 457 visa. The Minister, on the other hand, assumes the Court does not have jurisdiction to review the decision of the delegate if the Tribunal did not have jurisdiction to review the delegate’s decision. For the reasons I will now discuss, I do not need to determine which of these assumptions is correct.

2. There is no doubt that the delegate made an error in stating in the decision he communicated to SSP Stones on 17 April 2012 that he refused an application lodged by SSP Marble rather than by SSP Stones. The evidence I summarise in paragraphs 19-23 of these reasons, however, shows that the delegate did consider SSP Stones’ application. The delegate did not consider any application by SSP Marble, because SSP Marble made no application. The delegate’s error, therefore, was purely clerical. The error is not a jurisdictional error.

3. Mr Luvu does not submit that SSP Stones was misled by the delegate’s error. That submission would not be open on the evidence. In his email of 15 March 2012 to Mr Sarkis, the delegate described SSP Marble as the sponsor: “In reply please quote: Sponsor name: SSP MARBLE AND GRANITE PTY LTD”. This did not lead Mr Sarkis or any other person on behalf of SSP Stones to believe that the delegate was considering an application by SSP Marble. Mr Sarkis understood that the information the email from the delegate was seeking was information that related to the application SSP Stones lodged on 2 or 5 March 2012. That is demonstrated by the fact that Mr Sarkis responded to the email by providing information that related to SSP Stones, not SSP Marble.

Conclusions and disposition

1. The Tribunal was correct to conclude it had no jurisdiction to review the delegate’s decision made on 31 May 2012 to refuse to grant Mr Luvu a 457 visa. Even if it is assumed this Court has jurisdiction to review the delegate’s decision of 31 May 2012, the delegate made no jurisdictional error by misstating in his decision that the applicant seeking approval under s.140E of the Act was SSP Marble, rather than SSP Stones. The delegate considered the application of SSP Stones, not SSP Marble. And SSP Stones was not misled by the delegate’s misstatement.

2. In these circumstances, I propose to dismiss Mr Luvu’s application. I also propose to order that the first applicant pay the first respondent’s costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  22 November 2013