Mann v Minister for Immigration - [2020] FCCA 600

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANN v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 600

Catchwords:
MIGRATION – The Administrative Appeals Tribunal – application for Temporary Work (Skilled) (subclass 457) visa – whether the Tribunal made jurisdictional error in hearing the application for review – whether the Tribunal made an error of law in deciding that it did not have jurisdiction to hear the application – no jurisdictional error made out – the application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.140, 338, 347, 411, 412
Migration Regulations 1994 (Cth), r.4.02, cl.457.223

Applicant:

SUKHVINDER SINGH MANN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

CAG 31 of 2019

Judgment of:

Judge Humphreys

Hearing date:

20 February 2020

Date of Last Submission:

20 February 2020

Delivered at:

Parramatta

Delivered on:

20 February 2020

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Ms Crick, Clayton Utz

ORDERS

The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

CAG 31 of 2019

SUKHVINDER SINGH MANN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant applied for a Temporary Work (Skilled) (subclass 457) visa on 25 August 2017, in connection with an application for nomination made by his nominator for the position of Facilities Manager, Ultimate Facility Services Pty Ltd. On 14 November 2017, that application for nomination by Ultimate Facility Services Pty Ltd was approved, with it ceasing 12 months after the day on which it was approved.
There is no evidence of any review application, with respect to nomination applications or sponsorship after that date.
For reasons that are discussed later, a decision was not made on the applicant’s visa application for a Temporary Work (Skilled) (subclass 457) visa until 14 January 2019. The visa was refused by the delegate of the Minister for Immigration (“the delegate”) pursuant to

cl.457.223(4)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”), on the basis that at the time of the decision, the applicant was not the subject of an approved nomination as required. ~~His~~ The applicant’s sponsor nomination had expired on 14 November 2018.
The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal’). For the reasons set out below, the Tribunal affirmed the delegate’s decision to refuse the visa. The Tribunal found that it did not have jurisdiction to hear the matter.
The applicant now seeks judicial review of the Tribunal’s decision.

The Administrative Appeal Tribunal’s Decision

The Tribunal noted that, as at the time of the decision to refuse the visa, the applicant was not the subject of an approved nomination as required. In order to afford the applicant natural justice, the Tribunal wrote to the applicant on 17 April 2019, advising…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 600
Decision Date: 20 February 2020

CaseChat Overview and Summary

The applicant, Mann, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning an application for a Temporary Work (Skilled) (subclass 457) visa. The central dispute revolved around whether the AAT had made a jurisdictional error in its determination that it lacked the jurisdiction to hear Mann's application for review. The matter came before Judge Humphreys in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the AAT had erred in law by concluding that it did not possess jurisdiction to entertain Mann's application for review of the visa refusal. This required the Court to consider the scope of the AAT's powers and the specific legislative provisions governing its jurisdiction in relation to subclass 457 visa applications.

Judge Humphreys found that the AAT had not made a jurisdictional error. The Court's reasoning, though not detailed in the provided text, led to the conclusion that the AAT correctly interpreted and applied the relevant migration law concerning its review powers. Consequently, the application for judicial review was dismissed.

Orders