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

Case [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…

Details
AGLC
Maniam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3106
Case
[2020] FCCA 3106
Decision Date

CaseChat Overview and Summary

In *Maniam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs*, the applicant sought judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) that it lacked jurisdiction to review a decision not to grant a Temporary Business Entry (Class UC) visa. The core of the dispute concerned whether the applicant had a right to merits review before the Tribunal, given the circumstances at the time of lodging the review application. The matter was heard by Manousaridis J in the Federal Court of Australia.

The legal issues before the Court were whether the Tribunal correctly determined that it did not have jurisdiction to review the visa refusal. Specifically, the Court had to consider whether the applicant met the requirements of section 338(2)(d) of the *Migration Act 1958* (Cth) for a decision to refuse a temporary visa to be a "Part 5-reviewable decision". This involved determining whether, at the time of the review application, the applicant was identified in an approved or pending nomination, or whether there was a pending review of a decision not to approve the sponsor or the nomination.

Manousaridis J reasoned that the Tribunal's finding of no jurisdiction was correct. The Court noted that section 338(2)(d) of the Act sets out specific conditions for a visa refusal to be reviewable by the Tribunal. These conditions require that, at the time of the review application, the applicant must be sponsored by an approved sponsor, or there must be a pending review of a decision not to approve the sponsor or the nomination. The Tribunal found that these conditions were not met because the applicant was not identified in an approved or pending nomination, nor was there a pending review of a sponsorship or nomination decision when the review application was lodged. The applicant's argument that the Department's decision notice incorrectly indicated a right of review was not determinative of the Tribunal's jurisdiction.

The application was dismissed, and the applicant was ordered to pay the first respondent's costs.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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