Mabogodage v Minister for Immigration
[2018] FCCA 1031
•27 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MABOGODAGE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1031 |
| Catchwords: MIGRATION – Application for judicial review – Temporary Work (Long Stay Activity) (Class GB, Subclass 401) Visa – sponsorship of visa – whether jurisdictional error occurred – application refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), ss.140GB, 359A, 476(1) Migration Regulations 1994 (Cth), cls.401.212, 401.214 of sch. 2, 401.311(a) |
| Cases cited: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 24 ALR 577, 2 ALD 60 Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286; 82 ALJR 1147; 248 ALR 390 |
| First Applicant: | DASUN RANDIKA MABOGODAGE |
| Second Applicant | TAYANI CHATHURIKA FERNANDO WERASOORIYA MAHAWATTAGE |
| Third Applicant | TANALEE DILHANSA MABOGODAGE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 691 of 2017 |
| Judgment of: | Judge McNab |
| Hearing date: | 11 April 2018 |
| Date of Last Submission: | 11 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bandara |
| Solicitors for the Applicant: | PLS Lawyers |
| Counsel for the Respondents: | Mr Murano |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001, the application filed 6 April 2017 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 691 of 2017
| DASUN RANDIKA MABOGODAGE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicants filed an application in the Federal Circuit Court on
6 April 2017 seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 8 March 2017. This decision affirmed a decision of the delegate of the First Respondent not to grant the Applicants Temporary Work (Long Stay Activity) (Class GB, Subclass 401) Visas (‘Visas’).
The matter was listed for a show cause hearing on 28 March 2018 after consent orders were made on 11 October 2017. The Applicants filed written submissions on 15 November 2017. The Applicants were represented at the hearing by a solicitor, Mr Bandara and Mr Murano appeared for the First Respondent.
The grounds of the application are as follows;[1]
[1] Court Book 370-371 (reproduced exactly).
1. That the Administrative Appeals Tribunal fell into jurisdictional error when it took into account irrelevant evidence in determining the application for review.
Particulars
a. The Administrative Appeals Tribunal fell into jurisdictional error when it took into account the essential requirement of the Visa c1.401.212 which required him to be identified in a nomination of an occupation or activity approved under 140GB of the act when the delegate of the Minister for Immigration and Border Protection refused to grant the Visa Applicants Temporary Work (Long Stay Activity) (Class GB) on the basis that the Applicant did not meet c1.401.2 14 of Schedule 2 of the regulation because he was not satisfied that the Applicant genuinely intends a temporary stay in Australia.
b. The Administrative Appeals Tribunal fell into jurisdictional error when it relied on the essential requirement of the Visa, c1.401.212 nomination of an occupation or activity approved under s.140GHB of the act when the real issue raised by the delegate was whether the Applicant was genuinely intending to stay in Australia.
c. The Administrative Appeals Tribunal fell into jurisdictional error when it did not invite the Applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review, namely the Administrative Appeals Tribunal failed to invite the Applicant to give evidence and present arguments on the issue and/or finding by the delegate for the Minister for Immigration and Border Protection that the Applicant was not an Applicant genuinely intending to temporarily stay in Australia .
2. That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to take into account relevant evidence in determining the application for review.
Particulars
a. There was no evidence before the Administrative Appeals Tribunal that the Applicant was intends permanent stay in Australia.
b. There was no evidence before the Administrative Appeals Tribunal that the Applicant or any other person named in the application intends a permanently stay in Australia.
3. That the Administrative Appeals Tribunal fell into jurisdictional error when it came to the conclusion that the First Applicant does not satisfy the primary criteria for grant of Subclass 401 Visa.
4. That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to provide a logical and legal reasoning process as to how it arrived at the conclusion that the First named Applicant does not satisfy the primary criteria for grant of Subclass 401 Visa.
5. That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to ask itself the correct questions in relation to the review;
6. That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to correctly apply and/or interpret the Migration Act 1958 and/or the Migration Regulations 1994;
7. That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to adequately and/or properly assess the evidence before it.
Relevant Background
The relevant facts in the chronology in this matter are accurately set out in the contentions in fact and law prepared on behalf by the First Respondent and are replicated exactly below.
The First and second Applicants are husband and wife, and the third Applicant is their daughter. The Applicants are citizens of Sri Lanka. The First Applicant is currently 31 years old, the second Applicant is currently 33 years old and the third Applicant is currently 6 years old.
On 22 April 2014, the Applicants applied for the Visas. In the Visa application, the First Applicant indicated that he was sponsored by Donvale Cricket Club (sponsor).
On 1 August 2014, the nomination of the sponsor was approved
Between 8 October 2014 and 13 March 2015, the Department of Immigration and Border Protection (‘the Department’) conducted investigations to ascertain whether the First Applicant was working.
On 13 March 2015, Australia Post confirmed that the First Applicant commenced work as a mail contractor on 15 June 2013. The Department invited the Applicants to comment on adverse information, specifically that the Department had received information that the First Applicant was employed by Australia Post as a contractor since June 2013.
On 18 May 2015, the Applicants provided written submissions in response to the invitation to comment, with the assistance of Malintha De Mel (‘First representative’). In those submissions, the First Applicant acknowledged that he misconstrued his work limitation condition, which was a condition of his bridging visa, but submitted that the delegate should exercise its discretion not to cancel the bridging visa.
On 22 May 2015, the Applicants provided the Department with further documents in support of the Visas. In particular, the Applicants provided evidence that the sponsor had lodged an application for a nomination on 18 May 2015.
On 18 June 2015, the Applicants were notified of the delegate's decision to refuse to grant the Visas. The delegate was not satisfied that the Applicants met cl.401.214 of sch. 2 to the Migration Regulations 1994 (Cth) (‘Regulations’).
On 8 July 2015, the Applicants applied to the Tribunal for review of the delegate's decision.
By email dated 5 January 2017 sent to the First representative, the Tribunal invited the Applicants to comment on or respond to information. In that letter, the Tribunal stated as follows:
8. The Tribunal has had regard to information contained on Departmental file records indicating that you are not presently the subject of an approved nomination. In particular, records contained on the Department's Integrated Client Service Environment (/CSE) database indicate that a nomination in respect of you was granted on 1 August 2014.
9. This nomination therefore ceased by operation on law on 1 August 2015.
10. This information is relevant to the Tribunal's review because in cl.401.212 requires that at time of decision you be the subject of an approved nomination by an approved temporary work sponsor.
The Tribunal invited the Applicants to give comments in writing by 19 January 2017.
On 18 January 2017, KGS Consulting Group was appointed as the Applicants' representative (‘second representative’). The second representative requested an extension of 28 days to respond to the Tribunal's invitation to comment.
By email dated 19 January 2017 sent to the Tribunal, the First representative responded to the Tribunal's invitation to comment. In that email, the First representative provided the Tribunal with evidence that the sponsor's application for a nomination of the First Applicant was approved on 18 June 2015.
On 8 March 2017, the First Applicant attended the hearing, assisted by an interpreter. At the hearing, the First Applicant provided the Tribunal with written submissions. In summary, the First Applicant submitted that he did not intend to stay in Australia for a long period, but his cricket club wanted him to stay longer and provide training during the winter. The First Applicant also requested an extension for him to submit a new nomination approval. The First Applicant also provided evidence that he had applied for a Subclass 408 Visa.
The First Applicant gave the following evidence at the hearing:
a)he played cricket for the sponsor and they requested that he stay on for 2 years. He applied for a 2 year visa and obtained a bridging visa in 2015. The sponsor tried to apply for another 401 Visa but could not, so the sponsor applied for a 408 Visa; and
b)he understood that because he did not have an approved 401 nomination in respect of him that had not ceased the Tribunal could not make a decision in his favour.
By email dated 9 March 2017 sent to the second representative, the Tribunal notified the Applicants of its decision dated 8 March 2017 to affirm the delegate's decision to refuse to grant the Visas. In reaching its decision, the Tribunal:[2]
[2] Court Book 356-366.
a)stated that at issue was whether the First Applicant was the subject of a current nomination;
b)found that, according to the documentation provided with the Applicants' section 359A response, the First Applicant's last 401 nomination ceased on 18 June 2016;
c)found that the First Applicant was not the subject of an approved nomination;
d)noted that on 14 February 2017, it wrote to the second representative to inform the Applicants that the new nomination that had been lodged was for a 408 Visa, and as the decision under review concerned refusal of a 401 Visa, the hearing scheduled for 8 March 2017 would proceed;
e)stated that, as put to the Applicants at the hearing, the 401 Visa class closed on 19 November 2016;
f)stated that as the new nomination lodged concerned a 408 Visa, a decision on that nomination could not affect the outcome of this review in relation to a 401 Visa and, for that reason, did not grant an extension of time;
g)was not satisfied that the First Applicant was the subject of a nomination of an occupation or activity under s 140GB of the Migration Act 1958 (Cth) (‘the Act’) and that the approval of the nomination had not ceased;
h)found that the First Applicant did not meet the requirements of cl.401.212;
i)found that no claims had been made in respect of the other Visa streams;
j)found that the second and third Applicants did not satisfy the secondary criteria for the grant of the Visas, in particular cl.401.311(a); and
k)affirmed the delegate's decision not to grant the Applicants the Visas.
Consideration
In oral submissions made to the Court, Mr Bandara, solicitor appearing on behalf of the Applicant, submitted that the principal error was that the Tribunal had failed to properly consider whether the Applicant was a genuine short stay visa applicant. He submitted that the Tribunal was in error by focussing on whether there was a sponsor for the Applicant at the time of the hearing before the Tribunal. He put that the Tribunal was in error by asking the wrong question.
Grounds 1 (a) – (b)
In brief, the Applicants submitted that the Administrative Appeals Tribunal made an error in fact or law, or made a jurisdictional error by;
a)failing to take into account relevant evidence;
b)taking into account irrelevant evidence;
c)concluding that the First Applicant does not satisfy the criteria for a Subclass 401 Visa and failing to provide a logical reasoning process for reaching this conclusion;
d)misapplying the Migration Act 1958 (Cth) and/or the Migration Regulations 1994 (Cth); and
e)improperly assessing the evidence before it.
I find that there has been no error in the approach taken by the Tribunal. Cl. 401.212 required the Applicants to satisfy a criteria that, at the time of the decision, was made in their application to a Subclass 401 Visa that;
1. The Applicant is identified in a nomination of an occupation or activity approved under section 140GB of the Act.
…
2. The approval of the nomination has not ceased under regulation 2.75A[3]
[3] Migration Regulations 1994 (Cth).
The First Applicant agreed with the finding of the Tribunal that he was not nominated for an approved occupation or activity under s. 140GB of the Act. It was open to the Tribunal to find that the Applicant had not satisfied the requirements of cl.401.212(1). The Applicant sought to rely on the fact that the delegate had cited their decision as being based on the Applicant being unable to satisfy cl.401.214 rather than cl.401.212. While another criterion which the Applicants were required to satisfy for their application was cl.401.214, which requires that the Applicants genuinely intend to only stay temporarily in Australia, it was unnecessary for the Tribunal to confine itself to examining the validity of the decision only on this point. The Tribunal was required to review the decision of the delegate not their reasons: Drake v Minister for Immigration and Ethnic Affairs[4] and later by Kiefel J (as she then was) in Shi v Migration Agents Registration Authority.[5]
[4] (1979) 2 ALD 60, 68 per Bowen CJ and Deane J.
[5] (2008) 235 CLR 286.
From 16 November 2016, the Visa regime was changed and the 401 Subclass Visa was discontinued and this particular type of visa was superseded by the Subclass 408 Visa. The First Applicant sought to argue that, as he has gained a nomination and lodged an application for a Subclass 408 Visa, that the Tribunal should grant a stay on the review of the Subclass 401 Visa. In oral submissions the First Applicant accepted the position on this point submitted by the First Respondent, namely that there was no basis for the Tribunal staying their decision on the First Applicant’s Subclass 401 Visa.
The consideration of whether the Applicants genuinely want to stay temporarily in Australia only arises for consideration if the criteria in relation to nomination has been satisfied.
I accept the Respondent’s submission that the Tribunal, in reviewing the decision of the delegate and not their reasons, was entitled to examine the question of whether the Applicant had a valid Subclass 401 nomination in accordance with cl.401.212. The Tribunal had notified the Applicant prior to the hearing that the only issue at the hearing would be whether the Applicants are the subject of a valid 401 nomination.[6]
[6] Court Book 338.
Ground 1(c)
Ground 1(c) seeks to put that there was a failure on the part of the Tribunal to invite the First Applicant to give evidence and present arguments. The First Applicant attended the hearing with the assistance of an interpreter. This ground seems to be focused on a complaint that the hearing did not concentrate on whether the Applicants intended to stay temporarily in Australia. For the reasons stated above, there was no error in the Tribunal focussing on whether the nomination requirements as been met.
Ground 2
Ground 2 asserts that the Tribunal failed to take into account relevant evidence. Given that the Tribunal found that the First Applicant did not satisfy cl.401.212, it did not need to consider whether the Applicants satisfied cl.401.214.
Ground 3
Ground 3 seeks to put that the Tribunal was in error in finding that the First Applicant did not meet the criteria for a Subclass 401 Visa. Since the First Applicant did not have a valid nomination under cl.401.212, the Tribunal did not err when it found that the criteria for the grant of a Subclass 401 Visa.
Ground 4
Ground 4 asserts that the Tribunal fell into jurisdictional error by failing to provide logical reasoning for its conclusion that the First Applicant did not satisfy the criteria for a Subclass 401 Visa. Due to the First Applicant having no valid nomination, for the reasons set out above, there appears to be nothing within the record of the Tribunal’s decision which indicates that the Tribunal made a finding that was illogical or irrational.
Ground 5
Ground 5 asserts that the Tribunal failed to ask itself the correct questions for determination. The issue for determination by the Tribunal was whether the First Applicant had a valid nomination for the grant of a Subclass 401 Visa. By examining whether the First Applicant had a valid nomination per cl.401.212 the Tribunal was asking itself the correct question.
Ground 6
Ground 6 seeks to put that the Tribunal failed to correctly apply the law. Given the reasons above, I find that the Tribunal has correctly applied the law.
Ground 7
Ground 7 seeks to put that the Tribunal failed to assess the evidence. The relevant evidence for the assessment of whether the First Applicant satisfied the criteria for the grant of Subclass 401 Visa. The Tribunal therefore examined the relevant evidence.
For these reasons, I can discern no error in the Tribunal’s approach. The Applicant’s application for judicial review of the Tribunal’s decision is therefore dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 27 April 2018
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