MANAKOFUA v Minister for Immigration

[2017] FCCA 97

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANAKOFUA v MINISTER FOR IMMIGRATION [2017] FCCA 97

Catchwords:
MIGRATION – Temporary Work (Skilled) (subclass 457) – refusal of nominated sponsor’s application – whether the applicant's agent acted with authority – whether the Court has jurisdiction under s.476 – no jurisdictional error identified – no denial of procedural fairness identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.140GB, 198, 474, 476

Migration Regulations 1994 (Cth), reg.1.13A, 2.72

Applicant: MAKAMAILE MANAKOFUA

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 119 of 2017

Judgment of: Judge Street

Hearing date: 23 January 2017

Date of Last Submission: 23 January 2017

Delivered at: Sydney

Delivered on: 23 January 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent: Mr A Keevers
Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 119 of 2017

MAKAMAILE MANAKOFUA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application purportedly within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of an alleged decision made on 10 January 2017. The applicant also sought injunctive relief. The application seeks an order that that decision be quashed, and seeks relief in the nature of orders giving the applicant a chance to apply for permanent residency, and allowing the applicant to work for his family who are in Australia. The applicant and his family members are citizens of Tonga. The applicant was granted a UC visa on 4 May 2012, which expired on 19 May 2016. The applicant brought his family members to Australia from Tonga, in the hope of being able to provide a better lifestyle for his family and to apply for permanent residency in due course.

2. On 10 January 2017 the applicant was sent a letter, being a notification of a grant of a Bridging E (class WE) Bridging E (General) (subclass 050) visa. That decision noted that a Bridging E visa had been granted on 10 January 2017 to the applicant. The letter contained important information about that visa. The bridging visa grant notice attached to the letter identified that the bridging visa would cease on 17 January 2017. The bridging visa notice noted that it had been granted to the applicant listed in the table as he satisfied the criteria for the grant of the visa because he is making or is subject of acceptance arrangements to depart Australia. That visa noted that it allowed the applicant to remain lawfully in Australia until the cessation of the visa, being 17 January 2017. The bridging visa was the subject of a condition that gave no permission to work and no permission to study.

3. On 19 May 2016 the applicant lodged an application with the respondent for a Temporary Work (Skilled) (subclass 457) visa. The applicant was the primary visa applicant nominee in relation to that application and his wife and children were the secondary applicants in respect of that application. The visa application specified a nominating employer, being Stage & Dance Hire Pty Ltd, as the sponsor in respect of the visa application.

4. Materially, in that application, there was a question:-

   If the application for sponsorship or nomination is refused or withdrawn, do you wish to withdraw your visa application?

   The applicant answered that question in the affirmative. It is apparent that the applicant had a migration agent acting for him and the applicant from the bar table has taken issue with the authority of the agent to have completed the answer in the affirmative. There was no suggestion that the agent did not have authority to make the application for the applicant. There was no evidence before this Court to support any fraud by the agent of the applicant, let alone a fraud on the Department.

5. Negligence or incompetence of the agent in relation to the completion of the application form is not a basis that gives rise to any relief that could be granted by this Court. Underneath the question that was completed, relevantly there was a note:-

   Note: If Yes, if you withdraw your application, the case will be considered closed and you will forego any review rights to which you might have been entitled.

   There was a further question answered in the affirmative in relation to the withdrawal of the application, seeking a refund of the visa application charge. There is also a question referring to the secondary applicants in the application, asking:-

   If you include secondary applicants in this application and you withdraw your application because the application for sponsorship or nomination is refused or withdrawn, do you also wish to withdraw the secondary applications?

   The form again was completed in the affirmative.

6. The applicant was sent a letter on 19 May 2016 acknowledging the application for a Temporary Work (Skilled) (subclass 457) visa. A letter was sent to the agent confirming authority to act for the applicant in respect of that application. The applicant was also sent on 23 May 2016 the notification of a grant of a bridging visa in respect of the applicant and his family.

The Nomination Application

1. On 11 July 2016, a request was made by the Department for further information in respect of the application for a Temporary Work (skilled) (subclass 457) visa.

2. On 23 September 2016, in respect of the temporary business entry nomination business sponsorship visa application, which was lodged by Stage & Dance Hire Pty Ltd, the proposed sponsor was invited to comment on alleged adverse information received by the Department. An opportunity was provided to respond in that regard and a further extension of time was given by the Department for the provision of that information.

The Delegate’s Decision

1. On 12 December 2016, the Department notified Stage & Dance Hire Pty Ltd, the proposed sponsor, of the refusal of the nomination application. That refusal notification also identified review rights of 21 days for the sponsor in that regard. The notice of decision nomination refusal notice from the subclass 457 visa provided reasons that identified that the prescribed criteria for approval of the nomination were set out in reg.2.72 of the Migration Regulations 1994 (Cth) (“the Regulations”). Reference was made to the requirements of s.140GB of the Act in respect of the application.

2. The delegate was not satisfied that the applicant met reg. 2.72(9) of the Regulations. The decision referred to the requirements of subregulation 2.72(9) to the meaning of adverse information defined in regulation 1.13A. The delegate referred to the information that was provided on 8 June 2016 and the opportunity provided to the sponsor to comment on that information. The delegate referred to the records identifying Stage & Dance Hire Pty Ltd having the same registered office, principal place of business and common shareholders with another entity that had been sanctioned by the Department resulting in a five-year ban.

3. The delegate found that as there was adverse information known to the Department about a person associated with the applicant, being the sponsor, subregulation 2.79(2)(a) was not met. The delegate turned to consider whether there were circumstances that made it possible to disregard the adverse information pertaining to the person. Reference was made to the directors of the company. The delegate found that the sponsor had been provided with procedural fairness and that it was not reasonable to disregard the adverse information.

4. The delegate accordingly found that subregulation 2.72(b) was not met. The delegate was therefore not satisfied the applicant met subregulation 2.72(9). The delegate referred to the requirement of s.140GB(2) and (3) of the Act and that the nomination application must satisfy the prescribed criteria in order to be approved and that the prescribed criteria was set out in reg.2.72 of the Regulations. The delegate found the applicant for sponsorship did not satisfy reg.2.72(9) of the Regulations and was not satisfied that the applicant for sponsorship met the prescribed criteria for approval of a nomination Subclass 457 (Temporary Work (Skilled)) visa.

5. The delegate accordingly refused Stage & Dance Hire Pty Ltd’s application for approval of nomination - Subclass 457 (Temporary Work (Skilled)) visa.

Withdrawal of the Application

1. On 12 December 2016, the applicant was sent an acknowledgment of withdrawal of application for a Temporary Work(Skilled) (subclass 457) visa. That letter from the Department referred to the fact that the application for the Temporary Business Entry (class UC) Temporary Work(Skilled) (subclass 457) visa had been withdrawn as requested. Reference was made to the application and the answers provided in that application.

2. Specifically, the letter referred to the fact that if the application for sponsorship was refused, that the application form advised that the applicant wished to withdraw the visa application. The letter informed the applicant that the nomination application had been refused and therefore that the visa application had been withdrawn. The letter noted that the visa application had been withdrawn effective from 12 December 2016 and that no further processing would be undertaken in that regard. The letter noted that it was not possible to reconsider at a later time an application that has been withdrawn.

3. The letter made reference to the applicant holding a Bridging C (subclass 030) visa that was granted in association with the visa application which would cease in 28 days from the date the application was withdrawn. The letter noted that the applicant must depart Australia by the date that the bridging visa ceases unless the applicant holds another visa. The letter noted that if the applicant and his family, upon the expiry of that bridging visa, do not hold another visa and remain in Australia, they will be here unlawfully.

4. The letter noted that serious consequences, including possible detention and removal out of Australia may follow if the applicant and his family remain unlawfully in Australia.

Proceedings Before this Court

1. These proceedings were commenced on 13 January 2017. On 16 January 2017, the Court made an order providing the applicant with an opportunity to file an amended application, affidavit, evidence and submissions on or before 19 January 2017. No such documents were filed. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the applicant was entitled to relief sought in the application.

2. The Court explained to the applicant that, in order to obtain relief in the nature of an injunction, the Court must be satisfied that there is a prima facie case that the Minister has acted unlawfully or unfairly in relation to either the purported decision dated 10 January 2017 or in relation to the refusal of the sponsor nomination. The Court explained to the applicant that it would have identified the evidence and hear submissions from the applicant and then hear submissions from the solicitor for the respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood what had been said by the Court.

3. From the bar table, the applicant maintained that he had come to Australia and brought his family to Australia with the hope of providing a better life for his family and a better education. The applicant identified that he had been taken advantage of in relation to his intention to work for a sponsor and had not been paid as he should have been paid. The applicant also said that the application for the form was one in relation to which the agent had not obtained his permission in respect of the answer in respect of withdrawal of the visa applications.

4. The applicant submitted that he wanted another chance for him and his family and explained the hardship that he and his family had been undergoing in the circumstances where he had limited work rights and the steps he had taken to try and ensure that they did obtain an education. The Court explained to the applicant that the Court had no power to grant relief on compassionate grounds. The Court again explained to the applicant that the Court could only grant relief if satisfied that the Minister was proposing to act unlawfully or unfairly or had acted unlawfully or unfairly in relation to the notification of termination of the bridging visa or in respect of the refusal of the nomination.

5. Mr Keevers, the solicitor on behalf of the respondent, submitted that this Court had no jurisdiction to entertain any challenge to the delegate’s decision. Mr Keevers submitted that the only body that had a power to seek review of the refusal of the nomination was the sponsor entity, and it is apparent in the material before the Court that the time for such an application has expired. I accept the submission of the respondent that this Court has no jurisdiction under s.476 of the Act in respect of the decision refusing the nomination made on 12 December 2016.

6. Mr Keevers also submitted that the notification letter was not a step preparatory to a decision within s.474(2) and (3) of the Act and therefore not within the jurisdiction conferred under s.476 of the Act. Mr Keevers has submitted that the steps required under s.198 had not yet been taken. The scope of this Court’s power to grant injunctive relief in respect of a decision within s.474(2) and (3) of the Act is not directly curtailed by s.198. If the Court had been satisfied that there was a prima facie case that the respondent had or was proposing to act in excess of his statutory power or in circumstances where there was a denial of procedural fairness, this Court has jurisdiction and could grant injunctive relief.

7. There is nothing on the face of the material before the Court in respect of the notification of the expiry of the bridging visa that supports any prima facie case that the Minister has or proposes to exceed his statutory power in relation to that notification. Nor in the material before the Court is there any basis to find a denial of procedural fairness by the Minister in relation to the notification of the expiry of the bridging visa to the applicant. I can find no basis to grant any final  injunctive relief. I accept the respondent’s submissions that there is no basis upon which any injunctive relief could be granted.

8. I accept the respondent’s submission that the notification of the cessation of the bridging visa, on the face of the material before the Court, was within the scope of the statutory powers of the respondent and that there is nothing to support any argument that the respondent has exceeded its statutory powers in that regard or has denied the applicant procedural fairness. There is no basis to find that the applicant proposes to act in excess of statutory authority. I accept the respondent’s submission that the compassionate grounds advanced by the applicant do not give rise to any basis upon which this Court could grant relief. The respondent also submitted that the relief sought in the application in terms of opportunity to apply for permanent residency and allowing the applicant to work for his family did not fall within any statutory power conferred on this Court in respect of its jurisdiction. I accept that submission.

9. I am not satisfied that there is any basis upon which to grant the relief sought by the applicant in the application. I am not satisfied that there is any basis upon which this Court could grant injunctive relief in respect of the expiration of or the removal of the applicant from Australia.

10. There is no other basis apparent on the material before the Court upon which any injunctive relief could be granted to the applicant. Whilst this Court understands the hardship that this may impose upon the applicant and his family in having to return to Tonga, the position is that the applicant and his family members would not be precluded from seeking to apply for further visas from Tonga. The Court also notes that the letter of notification of the bridging visa drew attention to the consequences that follow if the applicant and his family members remain unlawfully in Australia.

11. The application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  30 January 2017