Minister for Immigration and Border Protection v Lee
[2014] FCCA 2881
•10 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MINISTER FOR IMMIGRATION v LEE & ORS | [2014] FCCA 2881 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal – whether Tribunal misapplied regulation – whether Tribunal wrongly purported to exercise its power of review – jurisdictional error found – relief granted. |
| Legislation: Migration Act 1958 (Cth), ss.140GB, 338, 348, 476 Migration Regulations 1994 (Cth), regs.2.5, 2.75, Schedule 2 |
| Minister for Immigration and Citizenship v Islam [2012] FCA 195; (2012) 202 FCR 46 |
| Applicant: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| First Respondent: | HAE JOON LEE |
| Second Respondent: | HYUN OK KONG |
| Third Respondent: | BEOM JOO LEE |
| Fourth Respondent: | SEUNG JOO LEE |
| Fifth Respondent: | MIN JOO LEE |
| Sixth Respondent | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1057 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 8 May 2014 |
| Date of Last Submission: | 8 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Smith |
| Solicitors for the Applicant: | DLA Piper Australia |
| First, Second, Third, Fourth and Fifth Respondents: | No Appearance |
| Sixth Respondent: | Submitting Notice |
THE COURT DECLARES THAT:
The sixth respondent had no jurisdiction to review the decision of the delegate of the Minister dated 23 October 2012.
THE COURT ORDERS THAT:
A writ in the nature of certiorari issue quashing the decision of the sixth respondent made on 11 April 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1057 of 2013
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Applicant
And
| HAE JOON LEE |
First Respondent
| HYUN OK KONG |
Second Respondent
BEOM JOO LEE
Third Respondent
SEUNG JOO LEE
Fourth Respondent
MIN JOO LEE
Fifth Respondent
MIGRATION REVIEW TRIBUNAL
Sixth Respondent
REASONS FOR JUDGMENT
This is an application made by the Minister for Immigration and Border Protection pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 11 April 2013. The Tribunal decided on review to remit the applications for Long-Stay Temporary Business visas (“the visas”) made by the first to fifth respondents in these proceedings, for reconsideration by the Minister with a direction that the first named respondent (in these proceedings) met the criteria for the grant of the visa.
Background
The applicant in these proceedings is the Minister for Immigration and Border Protection. The first five respondents are Mr Lee, his wife and three children (“the respondents”) who are all citizens of the Republic of South Korea. The sixth respondent is the Tribunal, which submitted to any order of the Court, save as to costs.
The relevant background to this matter can be derived from the bundle of relevant materials in evidence before the Court (“the Court Book” – “CB”).
The respondents made their application for the visas on 28 June 2010 (CB 1 to CB 15). They were in Australia at that time. They were assisted by a registered migration agent (CB 7). Mr Lee applied for the visa in his own right. His family applied as members of his family unit. That is, the grant of the visas to them was dependent on his meeting the relevant criteria for the visa.
Clause 457.223 of Sch. 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) as at the relevant time, is relevant to the disposition of this case:
“(1) The applicant meets the requirements of subclause (2), (4), (7A), (8), (9) or (10).
Labour agreements
(2) The applicant meets the requirements of this subclause if:
(a) the occupation specified in the application is the subject of a labour agreement; and
(b) either:
(i) both of the following apply:
(A) the applicant and a business activity specified in the application and relating to the applicant were the subject of an approved business nomination under regulation 1.20H as in force immediately prior to 14 September 2009; and
(B) the approval has not ceased to have effect under subregulation 1.20H (5) as in force immediately prior to 14 September 2009; or
(ii) a nomination of an occupation in relation to the applicant:
(A) has been approved under section 140GB of the Act; and
(B) has not ceased to have effect under regulation 2.75; and
Note The definition of occupation in clause 457.111 includes the activity mentioned in subparagraph (i).
(c) the applicant is nominated by a party to the labour agreement; and
(d) if the Minister requires the applicant to demonstrate that he or she has skills and experience that are suitable to perform the occupation — the applicant demonstrates that he or she has those skills and that experience in the manner specified by the Minister; and
(e) the Minister is satisfied that the requirements of the labour agreement have been met in relation to the application; and
(f) either:
(i) there is no adverse information known to Immigration about a party to the labour agreement or a person associated with the party to the labour agreement; or
(ii) it is reasonable to disregard any adverse information known to Immigration about a party to the labour agreement or a person associated with the party to the labour agreement.
Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
(a) either:
(i) if the applicant and a business activity specified in the application and relating to the applicant were the subject of an approved business nomination under regulation 1.20H as in force immediately prior to 14 September 2009:
(A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and
(B) the approval of the nomination has not ceased to have effect under subregulation 1.20H (5) as in force immediately prior to 14 September 2009; or
(ii) if a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act:
(A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and
(B) the approval of the nomination has not ceased as provided for in regulation 2.75; and
Note The definition of occupation in clause 457.111 includes the activity mentioned in subparagraph (i).
(aa) the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) that is in effect; and
(ba) if the business activities of the person who made the approved nomination include activities relating to either or both of:
(i) the recruitment of labour for supply to other unrelated businesses; and
(ii) the hiring of labour to other unrelated businesses;
either:
(iii) the occupation is undertaken in a position with a business, or an associated entity, of the person who made the approved nomination; or
(iv) the occupation is specified by the Minister in an instrument in writing for this subparagraph; and
(d) the Minister is satisfied that:
(i) the applicant’s intention to perform the occupation is genuine; and
(ii) the position associated with the nominated occupation is genuine; and
(e) if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(ea) if:
(i) the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and
(ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate a level of English language proficiency equivalent to the level of English language proficiency that is required to achieve an IELTS test score of more than 5 in each of the 4 test components of speaking, reading, writing and listening;
the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and
(eb) if:
(i) the applicant is not an exempt applicant; and
(ii) subclause (6) does not apply to the applicant; and
(iii) at least 1 of subparagraphs (ea) (i) and (ii) does not apply;
the applicant has a level of English language proficiency that is required to achieve an IELTS test score of at least 5 in each of the 4 test components of speaking, reading, writing and listening; and
(ec) if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f) either:
(i) there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
(6) This subclause applies to an applicant if:
(a) the applicant will be paid, in connection with the occupation nominated in relation to the applicant, a level of salary that is at least the level of salary worked out in a way specified by the Minister in an instrument in writing for this paragraph; and
(b) the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.
Independent executives
(7A) The applicant meets the requirements of this subclause if:
(a) either:
(i) the applicant holds a Subclass 457 visa granted on the basis that:
(A) the applicant met the requirements of subclause (7) as in force immediately before 14 September 2009; or
(B) the applicant met the requirements of Subdivision 457.32 as the spouse or de facto partner of a person who held a Subclass 457 visa granted on the basis that he or she met the requirements of subclause (7) as in force immediately before 14 September 2009; or
(ii) the applicant does not hold a substantive visa, and the last substantive visa held by the applicant was of a kind mentioned in subparagraph (i); and
(b) on the day on which the application is made:
(i) the applicant had been conducting the business in Australia as a principal for at least 15 months; or
(ii) if the applicant had been conducting the business in Australia as a principal for less than 15 months — a government of a State or Territory had endorsed the business as beneficial to the State or Territory; and
(c) the Minister is satisfied that:
(i) the business is of benefit to Australia; and
(ii) the applicant has a genuine and realistic commitment:
(A) to maintain an ownership interest in the business; and
(B) to maintain a direct and continuous involvement in the management of the business; and
(C) to make decisions that affect the overall direction and performance of the business from day to day; and
(iii) either:
(A) there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or
(B) it is reasonable to disregard any adverse information known to Immigration about the applicant or a person associated with the applicant; and
(iv) the applicant has net assets of:
(A) not less than AUD250,000; or
(B) a lesser amount that is adequate;
to conduct the business; and
(v) the applicant has demonstrated that there is need for the applicant to be temporarily resident in Australia to conduct the business.
Service sellers
(8) The applicant meets the requirements of this subclause if:
(a) the applicant:
(i) is a representative of a supplier of services who is located outside Australia; and
(ii) proposes to represent the supplier in Australia; and
(b) the representation involves negotiating, or entering into agreements, for the sale of services but does not involve the actual supply, or direct sale, of the services; and
(c) the Minister is satisfied that the proposal has not been made only for the purposes of securing the entry of the applicant to Australia.
Persons accorded certain privileges and immunities
(9) The applicant meets the requirements of this subclause if:
(a) the applicant is a person to whom privileges and immunities will be accorded under the International Organisations (Privileges and Immunities) Act 1963 or the Overseas Missions (Privileges and Immunities) Act 1995; and
(b) the Foreign Minister has recommended in writing to the Minister that the applicant should be granted the visa.
IASS agreements
(10) The applicant meets the requirements of this subclause if:
(a) the occupation specified in the application is the subject of an IASS agreement; and
(c) the party to the IASS agreement has agreed in writing to be the sponsor for the visa applicant; and
(d) the requirements of the IASS agreement have been met in relation to the application.
(11) In subclause (4):
exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.”
The application for the visas and for review had some history before the Minister’s department and the Tribunal, concerning other criteria for the visas and involving two decisions by delegates refusing the application and two decisions by different Tribunal members remitting the matter for reconsideration.
It is the third decision made by the delegate on 23 October 2012 (CB 97 to CB 101) and the subsequent application to, and decision of, the Tribunal made on 11 April 2013, which is of current concern (CB 102 to CB 112, and CB 137 to CB 142).
It is relevant to note that the application for the visa was made by Mr Lee on the basis that the occupation of Marketing Specialist had been nominated, by H2 Property Services Pty Ltd (“H2 Property”) as being relevant to his application. That is, H2 Property was the “sponsoring employer” for Mr Lee (CB 12). As set out above, the remainder of his family applied as his dependents.
The nomination was separately approved by an officer of the Minister’s department on 8 July 2010 (see [11] at CB 140). The delegate had regard to cl.457.223(4)(a) of the Regulations. He found that the approved business nomination made by H2 Property had expired on 8 July 2011 (one year after approval). The application for the visas was refused on 23 October 2012 on that basis.
The type of visa for which Mr Lee had applied contained two subclasses, subclass 456 and subclass 457. The Tribunal found it did not have jurisdiction in relation to a decision to refuse a subclass 456 visa ([4] at CB 138). However, without making an express finding, it proceeded on the basis that it did have jurisdiction in relation to the application for review of the delegate’s decision in relation to the second.
The Tribunal found that, relevantly, the criterion at cl.457.223(4)(a) of the Regulations had been met. It stated that ([11] at CB 140):
“Departmental records indicate that on 8 July 2010 the Department made a decision to approve the application by the applicant’s sponsor (H2 Property Services Pty Ltd) for an approved business nomination, naming the applicant as the nominated employee. The records also indicate that the nomination was approved for 4 years from the date of approval. Based on the evidence, the Tribunal is satisfied that the applicant meets cl.457.223(4)(a).”
The Tribunal remitted the decision to the Minister’s department on that basis, with the direction that the first respondent met the criterion at cl.457.223(4)(a) of Sch.2 to the Regulations.
Before the Court
This matter first came before the Court for directions on 12 June 2013. There was no appearance by, or on behalf of, any of the respondents. As stated above, the sixth respondent (the Tribunal) submitted save as to costs. The matter was set down for mention on 31 July 2013.
On 31 July 2013 there was no appearance by the first to fifth respondents (“the respondents”). It appeared that they had left Australia for South Korea. I nonetheless made orders for the progress of the case and noted that the Minister would take steps to properly serve them with relevant documents. I set the matter down for further directions on 16 April 2014 and for final hearing on 8 May 2014.
At the directions on 16 April 2014 there was again no appearance by the respondents. I had before me in evidence three affidavits made by Michelle Elizabeth Stone, solicitor on 15 May 2013, 30 July 2013 and 31 January 2014. On the evidence I was satisfied that the respondents had been served with the relevant documents at an address in South Korea.
When the matter was called on 8 May 2014 there was again no appearance by, or for, the respondents. I was satisfied on the evidence that the respondents had been served with the relevant documents and that the hearing should proceed in their absence, given that there was also nothing from the respondents seeking any adjournment or to otherwise explain any inability to attend.
The grounds of the application as amended on 23 August 2013 are in the following terms:
“1. The Migration Review Tribunal wrongly purported to exercise its power of review when, in fact, it had no such power.
Particulars
(a) The decision of the delegate was not a ‘MRT-reviewable decision’ within the meaning of section 337 because, at the time of the application for review, the applicant was not sponsored by an approved sponsor.
2. The Migration Review Tribunal (MRT) erred in its application of clause 457.223(4)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).
Particulars
(a) In finding that the primary visa applicant satisfied clause 457.223(4)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) the MRT failed to consider whether he satisfied all requirements of that sub-clause.
(b) The MRT was satisfied that the primary visa applicant satisfied clause 457.223(4)(a)(ii)(A), because he was named in an approved nomination made by an approved business sponsor.
(c) The MRT failed to consider whether the primary visa applicant met the additional requirement under clause 457.223(4)(a)(ii)(B), that the nomination approval had not ceased as provided for in regulation 2.75. Having not considered this requirement, it was not open to the MRT to conclude as it did that the applicant satisfied clause 457.223(4)(a).”
Before the Court were the Minister’s filed written submissions.
The Issues
The Minister submitted that there were two central issues in the disposition of his application. The first, ground one, was whether the Tribunal had jurisdiction to review the delegate’s decision. The second, ground two, was whether the effect of reg.2.75 of the Regulations was such that the approval of the nomination made by H2 Property had ceased by the time of the Tribunal’s decision such that it was not open to the Tribunal to conclude that cl.457.223(4)(a) of the Regulations was satisfied.
The “Second” Issue
Given the nature of the two issues, the Minister addressed the “second” issue first. His argument was that in circumstances where a visa applicant relies on a nomination that has been approved, as in the current case, the criterion at cl.457.223(4)(a) of the Regulations requires that that approval has not ceased under the application of reg.2.75 of the Regulations. I agree that cl.457.223(4)(a)(iii)(B) of the Regulations makes that plain.
Regulation 2.75 of the Regulations at the relevant time was in the following terms:
“(1) This regulation applies to a nomination of an occupation in which a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Business (Long Stay)) visa is identified as the person who will work in the occupation.
(2) An approval of a nomination ceases on the earliest of:
(a) the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and
(b) 12 months after the day on which the nomination is approved; and
(c) the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Business (Long Stay)) visa; and
(d) if the approval of the nomination is given to a standard business sponsor — 3 months after the day on which the person’s approval as a standard business sponsor ceases; and
(e) if the approval of the nomination is given to a standard business sponsor, and the person’s approval as a standard business sponsor is cancelled under subsection 140M (1) of the Act — the day on which the person’s approval as a standard business sponsor is cancelled; and
(f) if the approval of the nomination is given to a party to a work agreement (other than a Minister) — the day on which the work agreement ceases.”
On the evidence, which the Tribunal itself accepted (see [11] at CB 140), the nomination was approved on 8 July 2010. It must be remembered that the visa applicant had applied for a subclass 547 visa. This was the basis for the consideration by the Tribunal. By virtue of reg.2.75(1) of the Regulations, potentially the whole of that regulation could have applied to the application before the Tribunal.
However, and relevantly, on the evidence only reg.2.75(2)(b) applied to the circumstances before the Tribunal. Therefore, the approval of the nomination ceased 12 months after the day on which the nomination was approved. This means the approval ceased on 8 July 2011.
In these circumstances, the Minister says that as the Tribunal’s decision was made after that date it was not open to the Tribunal to find that it was satisfied that the criterion at cl.457.223(4)(a) of the Regulations was met, as at the date of decision.
It appears from the Tribunal’s decision record that it relied on departmental records which it said indicated that the nomination was approved for four years from the date of approval. The Tribunal does not identify or specify the particular part of the records to which it had regard. Nor is it clear from the evidence before the Court as to what the Tribunal was seeking to rely upon.
The Minister suggested that the Tribunal may have mistakenly read that part of the departmental records, reproduced at CB 130, which contains the notation: “Approved for 4yrs, NIL Dependants,
auto-notification”. Plainly, given the relevant regulatory scheme and the evidence otherwise before the Tribunal, that provides no basis for the Tribunal’s finding.
Further, the Minister submitted that there may have been some confusion on the part of the Tribunal between the period for which the visa applicant sought the visa (four years), and the duration of the approval of the nomination.
Whatever the reason, what remains is that irrespective of what was recorded in the departmental records, noting that in any event it does not provide the basis for the Tribunal’s finding, it could not displace, or override, the clear provisions of reg.2.75(2) of the Regulations. As the Minister submits this is particularly so in circumstances where cl.457.233(4) of the Regulations makes express reference to reg.2.75 of the Regulations.
I agree with the Minister that there is no statutory authority that supports the Tribunal’s view. The Tribunal acted inconsistently with the Regulations. The Tribunal, therefore, erred in finding that the approval of the nomination had not ceased. It therefore erred in finding the relevant criterion at cl.457.223(4)(a) of the Regulations was satisfied. This was a critical and essential finding by the Tribunal, relevant to the disposition of the matter before it. It, therefore, constitutes jurisdictional error.
The “First” Issue
The “first” issue, as the Minister submitted, required consideration of whether the delegate’s decision was an “MRT-reviewable decision”. That is, did the Tribunal have jurisdiction to review the delegate’s decision. This directs attention to s.338 of the Act. In the particular circumstances of this case, s.338(2)(d)(i) of the Act is of note. The question is whether the requirement there that the visa applicant
(“non-citizen”) is sponsored by an approved sponsor at the time of the application for review, means that there must exist an effective nomination under s.140GB of the Act at the time that the application for review is made.
The following is clear. The Tribunal only has jurisdiction to review MRT-reviewable decisions (s.348(1) of the Act). Section 338 of the Act determines what is an MRT-reviewable decision.
The Minister relevantly directed attention to s.338(2)(d) of the Act:
“(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is an MRT-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.”
[Emphasis in the original.]
The Minister’s argument in relation to “issue 1” relied on, and was derived from, the reasoning and findings of the Federal Court in Minister for Immigration and Citizenship v Islam [2012] FCA 195; (2012) 202 FCR 46 (“Islam”). In that case the Minister was successful in his appeal against a decision of this Court arising from circumstances similar, but not identical, to the current case.
It is trite to say that this Court is bound by the findings of the relevant law made by the Federal Court, on appeal. Further, to the extent that there are some differences in the relevant factual scenarios, the approach and reasoning of the appellate Court provides direction.
As referred to above, the respondents applied on 28 June 2010 for subclass 457 visas. Relevantly, they relied on a standard business sponsorship for employment in a nominated occupation. In this regard, Mr Lee, the first respondent, relied on the decision made by the Minister’s department on 8 July 2010 to approve the application made by H2 Property for an approved business nomination in which the first respondent was the nominated employee (see CB 12, and [11] at CB 140).
In Islam the visa applicants applied for the same class of visa as in the current case (at [6] of Islam) on 10 November 2009. I agree with the Minister that the relevant statutory and regulatory provisions are the same as in this case.
In Islam, the Tribunal found that a relevant primary criterion was that the applicant was “sponsored” by an “approved sponsor”. The applicant in that case relied on an occupation which was the subject of a labour agreement (Islam at [11]). In that case the Tribunal also found that a decision had been made by the Minister’s department to refuse a relevant application for a labour agreement “approval” lodged by the applicant’s sponsor (Islam at [12]).
The Court in Islam found at [13]:
“The Tribunal found that the requirements of ss 338(2)(a), (b) and (c) of the Act were met but that at the time the application to review the decision to refuse to grant the visa was made, Mrs Islam was not ‘sponsored’ by an ‘approved sponsor’ and that no review of a decision not to approve the sponsor was pending. Accordingly, the Tribunal said, the requirements of s 338(2)(d) were not met.”
As set out above, s.338(2)(d) of the Act is central to this case and was central in Islam (see at [14]).
Before this Court, the Minister drew attention to the chapeau at s.338(2)(d) of the Act to submit that there are two requirements to be met. First, that where it is a criterion for the visa that the non-citizen applicant is sponsored by an approved sponsor, and that the visa applied for is a temporary visa, either of the criteria that follow at (i) or (ii) must be met before the decision proposed to be reviewed, can be said to be an MRT-reviewable decision. Further, they must be met as at the time of the application for review.
The Minister relied on the following from Islam (at [16] – [24]):
“[16] Thus the question for present purposes is whether the opening words of s 338(2)(d) apply, that is whether it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor. Mrs and Mr Islam contend that it did not apply so that it did not matter that s 338(2)(d)(i) or (ii) was not satisfied.
[17] Clause 457.22 of Schedule 2 to the Regulations relevantly provided:
457.22 Criteria to be satisfied at time of decision
457.221 …
457.221A …
457.223 (1) The applicant meets the requirements of subclause (2) . . .
Labour agreements
(2) The applicant meets the requirements of this subclause if:
(a) the occupation specified in the application is the subject of a labour agreement; and
(b) either:
(i) . . .; or
(ii) a nomination of an occupation in relation to the applicant:
(A) has been approved under section 140GB of the Act; and
(B) has not ceased to have effect under regulation 2.75; and
Note The definition of occupation in clause 457.111 includes the activity mentioned in subparagraph (i).
(c) the applicant is nominated by a party to the labour agreement; and
(d) . . . ; and
(e) . . . ; and
(f) . . . .
[18] Section 337 provided that in Part 5 ‘sponsored’ has the same meaning as in the regulations. Section 338 is within Part 5.
[19] Regulation 4.01 provided that expressions used in Part 4, other than ‘nominated’ and ‘sponsored’, have the same respective meanings as in Part 5 of the Act.
[20] Importantly, reg 4.02(1AA) provided:
For section 337 of the Act, sponsored includes being identified in a nomination under section 140GB of the Act.
[21] Section 140GB was in Division 3A Part 2 of the Act. By s 140A, also in Division 3A Part 2, it was provided that the Division applied to visas of a particular kind. By reg 2.56, Division 3A Part 2 applied to 13 specified kinds of visa including, by reg 2.56(k) a subclass 457 (Business (Long Stay)) visa.
[22] Section 140GB provided:
140GB Minister to approve nominations
(1) An approved sponsor may nominate:
(a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant (sic) or proposed applicant’s proposed occupation; or
(ii) the program to be undertaken by the applicant or proposed applicant; or
(iii) the activity to be carried out by the applicant or proposed applicant; or
(b) a proposed occupation, program or activity.
(2) The Minister must approve an approved sponsor’s nomination if prescribed criteria are satisfied.
(3) The regulations may establish a process for the Minister to approve an approved sponsor’s nomination.
(4) Different criteria and different processes may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be approved as a sponsor.
[23] The prescribed criteria under s 140GB(2) for a subclass 457 (Business (Long Stay) visa included reg 2.72, which relevantly provided:
2.72 Criteria for approval of nomination — Subclass 457 (Business (Long Stay)) visa
(1) This regulation applies to a person who is:
(a) a standard business sponsor; or
(b) a party to a work agreement (other than a Minister);
who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Business (Long Stay)) visa.
(2) For subsection 140GB(2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3) The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4) The Minister is satisfied that the person is:
(a) a standard business sponsor; or
(b) a party to a work agreement (other than a Minister).
(5) The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
[24] Section 5(1) of the Act defined ‘approved sponsor’ to mean:
approved sponsor means:
(a) a person:
(i) who has been approved by the Minister under section 140E in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and
(ii) whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or
(b) a person (other than a Minister) who is a party to a work agreement.
Note: A partnership or an unincorporated association may be an approved sponsor: see subsections 140ZB(1) and 140ZE(1) respectively.”
The Minister submitted that the subsequent analysis in Islam should be applied to the current case (see Islam at [30] – [43]):
“[30] The question which presently arises under s 338(2)(d) is whether it was a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor. The appellant Minister did not submit that that question could be answered in his favour in the absence of the amendment made by the introduction of reg 4.02 (1AA). It was also common ground that prior to the introduction of reg 4.02 (1AA) it was not a criterion for the grant of the visa for which Mrs Islam applied that the non-citizen was sponsored by an approved sponsor. That is, prior to the introduction of reg 4.02 (1AA) a person in the position of Mrs Islam would have had a right to merits review by the Tribunal.
[31] Applying reg 4.02 (1AA), which stated that ‘sponsored’ included being identified in a nomination under s 140GB of the Act, the question under the opening words of s 338(2)(d) for present purposes is whether it was a criterion for the grant of the visa that the non-citizen is identified in a nomination under s 140GB of the Act (by an approved sponsor).
[32] The provisions of cl 457.223(2) relied on by the appellant Minister were cl 457.223(2)(b)(ii) ‘a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act’ and cl 457.223(2)(c) ‘the applicant is nominated by a party to the labour agreement’. Each was put as an alternative to the other. I consider each in turn.
[33] In each case the question is one of statutory construction.
[34] In the submissions of the first and second respondents before me, importance was placed on the changes made to the sponsorship provisions, with effect from 14 September 2009, in Division 3A of Part 2 of the Migration Act. I have been unable to see how those changes assist in determining the present questions. I accept that there is no sponsorship approval process, in terms, for a party to a labour agreement so that s 140E is not relevant, but that does not mean that an approval by the Minister under s 140GB stands outside Division 3A: in my view sponsorship obligations are imposed on an approved sponsor by the provisions of Subdivision C of Division 3A whether that person is an approved sponsor by virtue of par (a) or by virtue of par (b) of the definition of ‘approved sponsor’, which I have set out above.
[35] I note three further matters. First, the parties before me accepted that s 338(2)(d)(ii) had no application in the present circumstances in the sense that an applicant for a visa under cl 457.223(2) could not apply for review of the decision not to approve the sponsor. This is because there was no separate requirement to approve a sponsor where a ‘labour agreement’ was concerned.
[36] The second matter is that the first and second respondents’ position as to the utility of the present proceedings was that, if the opening words of s 338(2)(d) did not apply to prevent the decision being an MRT-reviewable decision, then they would hope that the criteria in cl 457.223(2) would be satisfied, that is, that the labour agreement had been approved, by the time of the Tribunal's decision.
[37] The third matter is that, by the amendments, certain clauses in Schedule 2 were amended so as to contain the language ‘the applicant is identified in a nomination of an occupation, a program or an activity approved under section 140GB of the Act’ being the language of reg 4.02(1AA). Clause 457.223(2) was not amended in those terms but was amended to include the language ‘a nomination of an occupation in relation to the applicant…has been approved under section 140GB…’ I do not accept the submission that merely because cl 457.223(2) did not use the very language of reg 4.02(1AA) it should be concluded that the opening words of s 338(2)(d), read with reg 4.02(1AA), were not engaged. I do however accept that it is necessary to look with circumspection at whether the opening words of s 338(2)(d), read with reg 4.02(1AA), were engaged, no reason being proffered why the language of reg 4.02(1AA) could not have been used in cl 457.223(2).
[38] The language used in s 338(d) is ‘criterion’. A criterion is a standard or principle against which, relevantly, an application for the grant of a visa is to be tested: see, with reference to s 31(3) of the Migration Act the definitions referred to by the Full Court in Pillay v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 368 at [32]. In making the assessment required in the present case, it must be judged whether either of the two provisions of cl 457.223(2) relied on by the appellant Minister objectively answers the opening words of s 338(2)(d) when read with reg 4.02(1AA). Because the opening words of s 338(2)(d) ask whether what is thereafter set out is a criterion for the grant of the visa, one must ask whether cl 457.223(2) meets the opening words of s 338(2)(d) at the level of criterion. The question is the nature of the criterion: compare Herald-Sun T.V. Pty Ltd v Australian Broadcasting Tribunal (1985) 156 CLR 1 at 4. It is not in my opinion an appropriate form of reasoning to ask whether, on the facts, an applicant’s circumstances answer one of the two relevant criteria in cl 457.223(2) and, if they do, to conclude that that fact answers the opening words of s 338(2)(d) when read with reg 4.02(1AA).
Clause 457.223(2)(b)(ii)
[39] In my opinion, the language of cl 457.223(2)(b)(ii), ‘a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act’ read with s 140GB and reg 2.72, has the result that the non-citizen was required to be identified in a nomination under s 140GB.
[40] By reason of the operation of reg 2.72, particularly reg 2.72(5), the Minister must approve a proposed occupation under s 140GB(1)(b) where, relevantly, the Minister is satisfied that the person has identified in the nomination the applicant for the visa, who will work in the nominated occupation. This regulation was put into its present form by the Migration Amendment Regulations 2009 (No. 5) Amendment Regulations 2009 (No. 1) which also added reg 4.02(1AA).
[41] If the nomination of the occupation has been approved under s 140GB then the approved sponsor, being a party to a work agreement (other than a Minister), must have satisfied the Minister that the applicant for the visa has been identified in the nomination under s 140GB.
[42] This is the language of the opening words of s 338(2)(d) read with reg 4.02(1AA), that is, that it was a criterion for the grant of the visa that the non-citizen is identified in a nomination under s 140GB of the Act (by an approved sponsor).
[43] I conclude that, at the level of identifying whether it is a criterion for the grant of the visa, the criterion in cl 457.223(2)(b)(ii) does answer the opening words of s 338(2)(d) read with reg 4.02(1AA), that is, that it was a criterion for the grant of the visa that the non-citizen is identified in a nomination under s 140GB of the Act by an approved sponsor.”
I agree with the Minister that, in essence, that analysis is relevant to the current case and, respectfully, applying the same process of
“word-changing” adopted by Robertson J, results in the following.
First, s.338(2)(d) of the Act requires that there be reference to a criterion for that visa. Second, that criterion must be satisfied at the time of the application for review to the Tribunal. In the current case the relevant criterion derives from s.140GB of the Act (see cl.457.223(4)(a)(ii) of the Regulations). That criterion was, that for the delegate’s decision to be an MRT-reviewable decision there must be an approved nomination of an occupation in respect of the visa applicant.
Respectfully applying the analysis in Islam, there is a correlation between the term “sponsored by an approved sponsor” in s.338(2)(d) of the Act and the term “nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act”. That latter, therefore, applies in relation to s.338(2)(d)(i) of the Act.
It should be noted that s.338(2)(d)(ii) of the Act does not apply to the current circumstances, given that there was no application for review of a decision not to approve the sponsorship made, or pending, at the relevant time.
As set out above in relation to issue two in the current case, it is that the visa applicant, or more specifically, the “non-citizen” “is sponsored” at the time of the application for review. The matter of importance to be noted is that this requirement cannot be satisfied in circumstances where the approval, if given at some antecedent point, has ceased or does not have currency as at the time of the application for review.
As set out above, the Tribunal was in error to find that the nomination/sponsorship involving H2 Property was in existence at the relevant time. The prior approval of the nomination had ceased in July 2011. That is, prior to the date of the application for review to the Tribunal (21 November 2012). In this circumstance, there was no relevant nomination approved at the time of the application for review to the Tribunal, such as to satisfy a relevant element for a decision to be an MRT-reviewable decision. In short, I agree with the Minister that the Tribunal did not have jurisdiction to conduct the review.
Conclusion
The declaration sought by the Minister should be granted. It is appropriate that given what is set out above an order should be made in the nature of certiorari as a result also of the consideration as to the second issue. Flowing from the first issue a declaration that the Tribunal had no jurisdiction to review the delegate’s decision will be made.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 10 December 2014
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