Marasingha Mudiyanselage v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 565
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marasingha Mudiyanselage v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 565
File number(s): MLG 1704 of 2015 Judgment of: JUDGE TAGLIERI Date of judgment: 15 July 2022 Catchwords: MIGRATION – Temporary Work (Skilled) (subclass 457) visa – application for judicial review – where Court lacks jurisdiction because decision sought to be reviewed is a primary decision – application dismissed Legislation: Migration Act 1958 (Cth), pts 5, 8, ss 5(1), 140GB, 337, 338, 476
Migration Regulations 1994 (Cth) regs 4.02(1AA), cl 457.223
Cases cited: Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182
Kandel v Minister for Immigration and Border Protection [2015] FCCA 2013
Division: Division 2 General Federal Law Number of paragraphs: 13 Date of hearing: 20 June 2022 Place: Hobart For the Applicant: In person Solicitor for the First Respondent: Mr Orchard of Sparke Helmore ORDERS
MLG 1704 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DHANUSHKA CHATURANGA MARASINGHA MUDIYANSELAGE
Applicant
AND: MINSTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
20 JUNE 2022
THE COURT ORDERS THAT:
1.The Application filed 23 July 2015 is dismissed for want of jurisdiction.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
On 20 June 2022, I conducted a hearing of an application for review in this matter. The application was made to the Court on 23 July 2015. I made an order that the application be dismissed for want of jurisdiction and noted that written reasons would be given for that order. These are the written reasons for the order made.
The review concerns the decision of a delegate of the First Respondent made on 18 June 2015, to refuse a temporary work (skilled) (subclass 457) Visa to the Applicant under the Migration Act 1958 (Cth)(“the Act”) and the regulations under the Act (“the delegate’s decision”).
The delegate’s decision was on the basis that the Applicant did not satisfy the requirements of clause 457.223 (4)(a) of the Migration Regulations 1994 (Cth), being that the Applicant had to have an approved nomination from an employer concerning the occupation to be to be undertaken by the Applicant (“approved employer sponsor nomination”).
After the delegate made the decision on 18 June 2015, the Applicant’s intended employer lodged a second sponsor nomination approval application on 19 June 2015 (“second sponsor nomination application”). Then on 6 July 2015, the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) to review the delegate’s decision.
Factually, the following is not in issue:
·At the time the Applicant applied to the Tribunal, there was a second sponsor nomination; and
·At the time the Applicant applied to this Court for a review of the delegate’s decision on 23 July 2015, the decision in respect of the application to approve the second sponsor nomination had not been taken.
This Court’s jurisdiction and powers relating to decisions of the Minister are expressly provided for in Part 8 of the Act. As relevant to this matter, it has no jurisdiction in relation to a “primary decision” or “privative clause decision”[1]. The meaning of these terms are expressly provided for in section 476(4) of the Act to include decisions that are reviewable by the Tribunal under Part 5 of the Act.
[1] Section 476(2) of the Migration Act 1958 (Cth)
Section 338, in Part 5 of the Act provides for the meaning of primary and privative clause decisions which are reviewable by the Tribunal. At the time of the delegate’s decision, section 338(2) in Part 5 of the Act stated:
a.A decision … to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if :….
i.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:
1.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
2.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.
[emphasis added]
In summary, the First Respondent contends that there was a second sponsor’s nomination made prior to the expiry of the 21 day time limit for seeking review before the Tribunal, so the Tribunal had jurisdiction to review the delegate’s decision pursuant to Part 5 of the Act.
The Respondent relies on the authority of Kandel v Minister for Immigration and Border Protection [2015] FCCA 2013, approved by the Federal Court in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, in support of the contention that the Tribunal had jurisdiction at the time the Applicant applied to this Court.
When expressly asked if he had submissions contrary to those of the Respondent, the Applicant stated he did not. Further, he did not oppose the application being dismissed for want of jurisdiction. I note that the Tribunal did subsequently review the delegate’s decision and affirmed it.
In Ahmad, the relevant principles about interpretation of the Tribunal’s jurisdiction appears in the Court’s reasons commencing at [95] and the conclusion expressed at [97] to [98] as follows:
97.The next question is the meaning of the words “sponsored by an approved sponsor” in s 338(2)(d)(i).
98.The definition of the word “sponsored” in s 337, which applies to s 338 (see [34] above), picks up the meaning of the word “sponsored” in the regulations. Regulation 4.02(1AA) states that for s 337, sponsored includes being identified in a nomination under s 140GB. It follows that “sponsored by an approved sponsor” in s 338(2)(d)(i) includes not only “approved sponsor” as defined in s 5(1) of the Migration Act (relevantly, a person who has been approved by the Minister under s 140E) but also includes, by virtue of reg 4.02(1AA), being identified in a nomination under s 140GB.
The above principles bind the Court in the factual circumstances referred to at [11] and section 338(2)(i) applies in respect of the application before the Court. The delegate’s decision is to be reviewed by the Tribunal under Part 5 of the Act, not the Court in this instance. The Court does not have jurisdiction to hear this application for review.
I note that the Tribunal’s decision in subject to a separate application before the Court in MLG1052/2017. That matter was also heard by me on 20 June 2022 and the decision is reserved.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 15 July 2022
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