Maniam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3106

FEDERAL CIRCUIT COURT OF AUSTRALIA

Maniam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3106

File number(s):	SYG 3700 of 2016
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	17 November 2020
Catchwords:	MIGRATION – application for remedies in relation to decision of Administrative Appeals Tribunal (Tribunal) that it did not have jurisdiction to review a decision not to grant a Temporary Business Entry (Class UC) visa because at the time of application for review the applicant was not identified in a nomination that was approved or pending, and there was not a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E of the Migration Act 1958 (Cth) (Act), or a decision not to approve the nomination under s.140GB of the Act – Tribunal correct in finding it had no jurisdiction – application dismissed
Legislation:	Federal Circuit Court Rules 2001 (Cth), Pt 3, Sch 1 Migration Act 1958 (Cth), ss 5, 140E, 140G, 140GB, 140M, 338, 347, 476 Migration Regulations 1994 (Cth), reg 4.02(1A)(k), Sch 2, cl 457.223(4)
Cases cited:	Singh v Minister for Home Affairs [2019] FCA 291
Number of paragraphs:	21
Date of hearing:	12 November 2020
Place:	Sydney
The Applicant:	Appeared in person, by telephone
Solicitor for the First Respondent:	Mr J Pipolo of Mills Oakley Lawyers, by telephone

ORDERS

SYG 3700 of 2016

BETWEEN:

SATHIASEELAN MANIAM

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	17 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $5,400.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) that it did not have jurisdiction to review a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Temporary Business Entry (Class UC) visa (Temporary Business visa).

   BACKGROUND

2. To have been entitled to the grant of a Temporary Business visa the applicant had to satisfy the criteria contained in Subclass 457 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[1] Relevant to the matters arising on this application is cl.457.223(4)(a) of Schedule 2 to the Regulations which provides as follows:

   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;

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

   [1] The relevant provisions of the Act and of the Regulations are those that applied at the time the applicant applied for the Temporary Business visa.

3. Subsection 140GB(1) of the Act provides that an “approved sponsor” may nominate an applicant or proposed applicant for a visa of a prescribed kind in relation to, among other things, the applicant or proposed occupation. The expression “approved sponsor” is defined in s.5 of the Act as a person who has been approved by the Minister under s.140E in relation to a class prescribed by the Regulations for the purposes of s.140E(2) of the Act, and whose approval has not been cancelled under s.140M or otherwise ceased to have effect under s.140G of the Act. Subsection 140E(1) of the Act 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.

4. In his application for a Temporary Business visa the applicant identified Kismet Ventures Pty Ltd (Kismet) as his sponsoring employer.[2] The applicant supported his application with a letter from a person who described himself as the managing director of Kismet addressed to “To whom it may concern”.[3] The letter stated the applicant had been working part time since 2010 as a motor mechanic; the managing director had been unsuccessfully seeking to recruit new employees; and the managing director wanted to take the opportunity to sponsor the applicant to continue to work for Kismet.

   [2] CB8

   [3] CB27

5. On 24 June 2016 a delegate of the Minister refused a nomination application Kismet had lodged in relation to the applicant. By letter dated 24 June 2016 to the representative of the applicant, the delegate said that one of the criteria for the grant of the Temporary Business visa is that there is an approved nomination, but “[y]our prospective employer”, Kismet, “does not have an approved nomination for [the applicant]” at the time. The letter set out a number of possible responses the applicant could make to the information contained in the delegate’s letter.[4] There was no response to the delegate’s letter.

   [4] CB49

6. On 4 August 2016 the delegate decided to refuse to grant the applicant a Temporary Business visa. The delegate’s decision and reasons for decision are recorded in a document titled “Decision Record”.[5] The delegate found the “primary applicant is not the subject of an approved nomination” and, for that reason, the delegate was not satisfied cl.457.223(4) of Schedule 2 to the Regulations had been met.

   [5] CB59

7. The delegate sent her Decision record by email to the applicant’s migration agent under cover of a letter dated 4 August 2016.[6] That letter included the following:

   [6] CB56

   Review rights

   There is no right of merits review for this decision.

   However, you may become entitled to apply to the Administrative Appeals Tribunal (AAT) for merits review of this decision if within 21 calendar days after the day on which you are taken to have received this letter, you are sponsored by an approved sponsor, or an application for merits review of a decision not to approve the sponsor is pending.

8. “[N]o right of merits review” directs attention to those provisions of the Act that confer on an applicant for a visa the right to apply to the Tribunal under s.347 of the Act for a review of a certain classes of decision. Those classes of decision are referred to as “Part-5 reviewable decisions”; and they are identified in s.338 of the Act. Relevant to this application is s.338(2)(d) of the Act which provides:

   A decision . . . 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.

9. A subclass 457 visa has been prescribed by reg.4.02(1A)(k) of the Regulations.

10. Although the delegate’s letter stated there was no right of merits review, on 25 August 2016 the applicant applied for review to the Tribunal.[7] By letter dated 23 September 2016 the Tribunal informed the applicant’s agent it appeared the application for review to the Tribunal was not valid because at the time the review application was lodged the applicant was not identified in a nomination under s.140GB of the Act that was approved or pending.[8] The Tribunal invited the applicant to provide any comments he may wish to make by 7 October 2016. The applicant did not respond.

    [7] CB62

    [8] CB81

11. On 13 November 2016 the Tribunal found that the decision not to grant the applicant the Temporary Business visa is not a reviewable decision because the requirements of s.338(2)(d) of the Act were not met.[9] The Tribunal’s reasons are as follows:[10]

    The Tribunal finds that, at the time the application for review was lodged by the applicant on 25 August 2016, the applicant was not identified in a nomination that was approved or pending, and there was not a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E, or a decision not to approve the nomination under s.140GB of the Act.

    [9] CB87, [8]

    [10] CB87, [7]

    GROUNDS OF APPLICATION

12. The application contains the following ground (errors in original):

    1)The Tribunal made a finding that it does not have jurisdiction in the matter as there was no application for review of a decision not to approve my employer Kismet Ventures’ Pty Ltd’s nomination and therefore s.338(2)(d)(i) of the Act is not met.

    2)However, The Department’s decision notice dated 4 August 2016 clearly indicate that my application is reviewable by the Administrative Appeals Tribunal. Therefore the Department’s refusal notice was an incorrect or invalid notice as it refused to correctly notify me the circumstances under which my visa application is reviewable by the Tribunal.

13. At the hearing before me the applicant, who is not legally represented, submitted that he believed he had lodged all the paper work, and he said he did not receive correspondence from his migration agent. The applicant implied he understood the agent would do everything that was necessary to be done for the applicant to be entitled to be granted the Temporary Business visa, and that the applicant believed the migration agent had done everything he was required to do to achieve that end. The applicant also said the agent told him not to worry about things, and that he would submit the paper work.

14. Two questions arise. The first is whether the grounds as stated in the application disclose any ground for granting the applicant the relief that he seeks. The second is whether the applicant is entitled to any relief having regard to the applicant’s statements to me about what he believed his agent had done or not done.

    Ground stated in the application

15. There is no merit in the ground. To have been entitled to apply for review of the delegate’s decision, the delegate’s decision “had to be one that relevantly fell within the parameters of s 338(2)(d)(i) or (ii) of the Act”.[11]

    That required the [applicant], at the time of the making of his application for review:

    (a)to be a person “sponsored” by an approved sponsor, which includes being identified in a nomination under s 140GB of the Act; or

    (b)to be a person in respect of whom an application for review of a decision to refuse sponsorship had been made and was pending

    [11] Singh v Minister for Home Affairs [2019] FCA 291, at [17]

16. The delegate’s letter correctly stated the effect of the circumstances set out in s.338(2)(d) of the Act in which the applicant could apply to the Tribunal for review of the delegate’s decision; and that is if within 21 days after the applicant received the delegate’s letter notifying the applicant of the delegate’s decision, the applicant is either sponsored by an approved sponsor, or an application for merits review of a decision not to approve the sponsor is pending.

17. The applicant has not adduced any evidence that either of these conditions were satisfied. The Minister, however, has adduced evidence that shows that no nomination application was on foot in relation to the applicant at the time the applicant lodged his application for review with the Tribunal.[12]

    [12] Affidavit of J Vo 27.07.2017

    Agent’s conduct

18. The applicant has not identified documents he believes his agent ought to have lodged in support of his application which the agent failed to lodge. Thus, on the material before me, I cannot be satisfied the agent failed to lodge material that he ought to have lodged. In any event, even if there is such material, there is evidence I have accepted that no nomination application was on foot in relation to the applicant at the time the applicant lodged his application for review with the Tribunal. There is therefore no doubt, on the evidence before me, that the delegate’s decision refusing to grant the applicant a Temporary Business visa was not a Part 5-reviewable decision because the matters specified in s.338(2)(d) of the Act were not satisfied.

    DISPOSITION AND COSTS

19. The Tribunal was correct in concluding it did not have jurisdiction to review the delegate’s decision not to grant the applicant a Temporary Business visa. I propose, therefore, to dismiss the application.

20. At the hearing I explained to the applicant that when a party succeeds in a proceeding the Court usually orders that the losing party pay the successful party’s costs. I asked the applicant whether there was any reason why I should not order him to pay the Minister’s costs if the Minister succeeds. The applicant said he does not have a proper job. I take this to be a submission that he would not be able to afford to pay any costs he may be ordered to pay. That is not a sufficient reason to lead me not to order the respondent pay the Minister’s costs.

21. The Minister submitted that if costs were ordered in his favour he would seek an order that the costs be set in the amount of $5,400. That is less than the amount provided for in Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). I am satisfied that $5,400 is a fair measure of the Minister’s costs which in justice the applicant should be ordered to pay. I also propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $5,400.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       17 November 2020