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

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. 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

1. 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.

2. There is no evidence of any review application, with respect to nomination applications or sponsorship after that date.

3. 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.

4. 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.

5. The applicant now seeks judicial review of the Tribunal’s decision.

The Administrative Appeal Tribunal’s Decision

1. 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 him that the Tribunal considered it did not have any jurisdiction of the delegate’s decision, to refuse the visa under s.338(2) of the Migration Act 1958 (Cth) (“the Act”) or under any of the other sub paragraphs of s.338 of the Act and r.4.02(4) of the Regulations.

2. At paragraph 9 of its decision, the Tribunal noted that on 1 May 2019, the applicant responded to the above correspondence by way of submissions and supporting documents. It is contended, on behalf of the applicant, that multiple attempts were made to contact the Department to ascertain why the processing of his Subclass 457 visa, lodged on 25 August 2017, was taking so long, particularly, following approval of the nominator’s application for nomination on 14 November 2017.

3. Additionally, it was contended the Department acted unfairly in processing the Subclass 457 visa in a timely fashion, then refusing it after the approval of the nomination ceased following the expiration of 12 months on 14 November 2018.

4. The Tribunal considered the submissions, but concluded as a matter of law, it had no jurisdiction to review the decision, to refuse the visa application and accordingly dismissed the matter.

Grounds of Application

1. A single ground of appeal is contained in the application to this Court and is as follows, verbatim:

   My case was misinterpreted by the respected officer of Department of Immigration and Border Protection (now Department of Home Affairs).

2. No particulars were supplied to support the ground of application.

The Applicant’s Submission’s

1. The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. Despite orders of the Court, no submissions in support of the grounds of appeal were filed.

2. The applicant drew the Court’s attention to correspondence forwarded to the Department by his migration agent on 19 April 2018, 2 July 2018 and finally on 16 October 2018, noting the delay in the processing of the application and requesting what further information, if any, was required by the Department.

3. The final e-mail of 16 October 2018, noted that the nomination by his employer would expire on 14 November 2018 and the concerns that the Department would proceed to refuse the application, after the nomination expired.

4. No response was received from the Department. As predicted, the Department refused the application for the Temporary Work (Skilled) (subclass 457) visa after 14 November 2018.

The First Respondent’s Submissions

1. The first respondent’s submissions were relatively short and simply set out that, as the nomination by the prospective employer had expired on 14 November 2018 and that the decision to refuse the visa on 14 January 2019 was lawful.

2. Further, as a result of this, the Tribunal did not have any jurisdiction to hear the application for review, on the basis that the delegate’s decision was a Part 5 reviewable decision under s.338(2) of the Act and r.4.02(4) of the Regulations. As s.338(2) of the Act was not satisfied, the Tribunal indeed had no jurisdiction to hear the matter.

3. The Court raised a number of concerns it had with the manner in which the Department had dealt with the application for the Subclass 457 visa. Nowhere, was it apparent, the reason for the delay in the Department processing the application, given that the applicant’s employer’s nomination had been approved in November 2017. The Court had particular concerns that despite correspondence from the applicant’s migration agent, no information had been provided to him as to the reasons for the delay.

4. The Court adjourned the hearing, so as to enable information to be provided to it, as to why the delays had occurred. After the adjournment, no further information was provided. The Court determined it was appropriate that the matter be further adjourned and requested specific information be provided as to:

   1.   Why the Department did not process of the applicants subclass 457 visa application prior to the date upon which his employers nomination expired; and

   2.   If the Court finds in favour of the Minister by dismissing the application, will the Department grant the applicant a bridging visa or reconsider whether the applicant could be granted another type of visa.

5. In response to the specific requests the following information was provided by the first respondent;

   1.   The Department requested further information from the sponsor on 11 May 2018, 28 June 2018 and 28 August 2018. The sponsor did not respond to these requests for information. It is standard Department policy, not to approve nominations or grant visas while request to the sponsor are still pending.

   The Department was aware that the nomination was due to cease and attempted to contact the sponsor again on 9 October 2018 and 12 December 2018, concerning the non-response and the effect it could have on the applicant.

   The sponsor eventually responded on 13 December 2018, after the nomination had ceased. The time associated with processing was due to the sponsor’s delay, in providing the required information.

   2.   The Department could only grant the applicant a bridging visa, if the applicant appealed Judge Humphreys decision, apply for another visa or removal basis. Further, the Department will consider any applications made by the applicant, noting that the applicant will be s.48 barred and limited to applying for certain visas as it was also refused a training visa last year.

Consideration

1. As set out in the Tribunal decision, the Tribunal only has jurisdiction to review a decision under s.338(2) of the Act, if an application is properly made under any of the other subparagraphs of s.347 or s.412 of that Act. Sections 338 and s.411 of the Act and r.4.02(4) of the Regulations, set out the range of decisions that are reviewable in the migration and refugee division of the Tribunal. A decision to refuse to grant a Subclass 457 visa is a reviewable decision, under Part 5 of the Act, in certain circumstances

2. Clause 457.223(4)(a) of the Regulations, requires that there be a nomination for the applicant, which is approved under s.140GB of the Act, which has not ceased at the time the decision to refuse to grant the visa was made. In the current case, the approval of the nomination ceased on 14 November 2018, a period of 12 months after the day on which it was approved.

3. The decision to refuse the applicant’s visa was made on 14 January 2019, the refusal being based on the fact that the applicant was not the subject of an approved nomination as required. Accordingly, the Tribunal found it had no jurisdiction to entertain the application for review.

4. No material was initially provided to the Court, as to the basis for the delay in the applicant’s visa application. The Court was required to specifically request that this information be made available, when in the circumstances of the case, it should have been made available when requested on the first occasion. The actions of the Department do not speak well of its adherence to the model litigant guidelines.

5. Given that the applicant’s migration agent wrote to the Department on no less than three separate occasions, seeking information as to the cause of the delay, it is perhaps understandable that the applicant would have a legitimate sense of grievance at the actions of the Department in waiting until his nomination had expired before refusing the Subclass 457 visa application.

6. Whilst the Department indicates, as set out above, that they required further information from the sponsor and attempted to seek that information on a number of occasions, on the face of it, there was an approved nomination. What further information was required and how it impacted on the decision to approve or not approve the application, has not been made apparent. Why the Department failed to respond to the applicant’s migration agent and indicate what information was required in order to approve the nomination and visa application, is also not apparent. The Court does not consider this case to be a good example of proper public administration.

7. The Court however, is required to apply the law. Given the effect of the legislation, the Court is reasonably satisfied there was no error of law committed by the Tribunal in finding that it had no jurisdiction to entertain the application for review by the applicant.

8. In these circumstances, no jurisdictional error is apparent either in the articulated ground or, given the applicant is unrepresented, in any other unarticulated matter on the face of the record of decision of the Tribunal.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:  

Date:  20 March 2020