Nguyen v Minister for Home Affairs
[2019] FCCA 1281
•16 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1281 |
| Catchwords: MIGRATION – Skilled Work visa – applicant’s sponsor ceased to hold approval as business sponsor – applicant invited to comment on adverse information that his sponsor no longer held approval – applicant contends that new sponsor would support application – Tribunal concludes it had no jurisdiction – whether Tribunal erred in concluding that it had no jurisdiction – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 140E, 140GB, 337, 338, 347, 348, 411, 412, 474, 476 Migration Regulations 1994 (Cth), regs 2.75, 4.02, Sch 2 cl 457.223 |
| Cases cited: Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 Al Hamid v Minister for Immigration and Border Protection [2017] FCA 1256 Commonwealth of Australia v Lyon (2003) 133 FCR 265 Craig v South Australia (1995) 184 CLR 163 Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81 Eisele v Commonwealth of Australia [2018] FCA 15 Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 Gulati v Minister for Immigration and Border Protection [2017] FCA 255 Kandel v Minister for Immigration and Border Protection [2015] FCCA 2013 Lee v Minister for Immigration and Border Protection [2016] FCA 294 Minister for Immigration and Border Protection v Singh (2002) 209 CLR 533 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003) 128 FCR 507 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | NGOC TOAN NGUYEN |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1756 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 14 May 2019 |
| Date of Last Submission: | 14 May 2019 |
| Orders Pronounced: | 14 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 16 May 2019 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor Advocate for the Respondents: | Mr Sypott |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The application filed on 11 August 2017 be dismissed.
The applicant pay the costs of the first respondent fixed at $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1756 of 2017
| NGOC TOAN NGUYEN |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 11 August 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 July 2017 that it did not have jurisdiction to review a decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa pursuant to s 65 of the Migration Act 1958 (Cth) (Act). These reasons for judgment explain why orders were made dismissing the application.
Background
The applicant, a Vietnamese citizen aged 29 years, first arrived in Australia on 9 May 2013 as the holder of a Student visa.
On 21 October 2016, the applicant applied for a Temporary Work visa. In his application, the applicant listed Mega Sheetmetal Pty Ltd (sponsor) as sponsoring employer and supplied a copy of an executed Employment Agreement for the position of a 1st Class Welder. The agreement was made dependent upon the applicant obtaining the appropriate visa.
On 4 May 2017, the Department wrote to the applicant’s lawyers and migration agent to notify the applicant that his sponsor did not have an approved nomination, and invited him to withdraw his application or otherwise to state his intentions in relation to.
By letter dated 26 May 2017, the applicant’s migration agent informed the Department that he no longer acted on behalf of the applicant.
On 5 June 2017, the Minister’s delegate refused the visa application on the basis that the applicant had not met the criteria prescribed by cl 457.223(4)(a) of Sch 2 (cl 457.223) of the Migration Regulations 1994 (Cth) (Regulations) by reason that the prospective sponsoring employer did not have an approved nomination in place for the applicant.
On 19 June 2017, the applicant applied to the Tribunal for review of the delegate’s decision. In his application, the applicant listed Australian Migration Services as his new registered migration agent.
On 23 June 2017, the Tribunal invited the applicant’s migration agent to comment on the validity of the application for review noting that: (1) at the time his application was lodged, the applicant was not identified in a nomination under s 140GB of the Act that was approved or pending; (2) there was no pending application for review before the Tribunal in respect of a decision not to approve the sponsor under s 140E of the Act, or of a decision not to approve the nomination under s 140GB of the Act.
Following lodgement of the application for review, by an email transmitted on 7 July 2017, the applicant’s migration agent provided a response to the Tribunal in which she argued that the applicant had another approved sponsor at the time when he lodged his application but which had not been listed in the application form.
In a written statement of reasons dated 14 July 2017 (Reasons), the Tribunal decided that it had no jurisdiction to determine the application. On 17 July 2017, the Tribunal notified the applicant of its decision.
The Tribunal noted that it had jurisdiction to review a decision under the Act where an application had been properly made under ss 347 or 412. The Tribunal also noted that ss 338 and 411 of the Act, coupled with reg 4.02(4) of the Regulations, prescribed other types of decisions that were reviewable by the Tribunal and the circumstances in which they were reviewable: [3]. The Tribunal found that the sponsor’s approved sponsorship ceased on 3 April 2017, and that the nomination application had been refused on 4 May 2017: [5].
The Tribunal found that it had no jurisdiction to hear the application for the substantive reason that the applicant had no approved sponsor at the time of his application. In its Reasons at [21], it stated:
Accordingly, the Tribunal finds that the decision in respect of which the applicant has applied for review is not reviewable in the circumstances of this case. This is because, at the time the application for review was lodged on 19 June 2017, the applicant was not identified in a nomination under section 140GB of the Act by an approved sponsor. In addition, at the time the application for review was lodged on 19 June 2017 there was also no pending application for review before the Tribunal of either a decision not to approve the sponsor under section 140E, or a decision not to approve the sponsor under section 140GB.
The Tribunal concluded that the delegate’s decision was not reviewable as there was no Part 5 Reviewable decision and for that reason it had no jurisdiction in the matter: [22]-[24].
Procedural history
On 11 August 2017, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit sworn on 28 July 2017 exhibiting the Tribunal’s Reasons, but adducing no further evidence in relation to the application.
By a Response filed on 25 August 2017, the Minister opposed the making of the orders sought in the application on the basis that the Tribunal’s decision was not affected by jurisdictional error.
The matter was listed for directions hearing on 18 April 2018. On that date orders were made, by consent, listing the matter for final hearing. Procedural orders were made affording the applicant an opportunity to file any amended application, supplementary court book and submissions. None of those opportunities was taken.
The Minister’s submissions were therefore responsive to the application.
Applicable principles
If the Tribunal’s decision was a privative clause decision[1], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3] Whether it should do so is a separate issue.
[1] Act, s 474(2).
[2]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[3] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Under the Act, the latitude granted to an administrative decision-maker in deciding a visa application turns upon whether the criteria for the grant of the particular visa are satisfied. By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[5]
[5]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
As concerns Work visas, Div 3A of the Act, which comprises ss 140A – 140ZK, concerns the sponsorship of sponsored work visas. In Eisele v Commonwealth of Australia,[6] Moshinsky J stated:
Div 3A of Pt 2 of the Migration Act dealt with sponsorship. Section 140E dealt with the approval of sponsors (see also ss 140F, 140G and 140GA). Section 140GB(1) provided, in summary, for an approved sponsor to nominate an applicant, or a proposed applicant, for a visa of a prescribed kind in relation to a proposed occupation, program or activity. Section 140GB(2) provided that the Minister must approve such a nomination if the prescribed criteria were satisfied.
[6] [2018] FCA 15, [20].
By para 457.22 of Sch 2 of the Regulations, criteria are set out which apply to Temporary Work (Skilled) visa applications. Relevantly, an applicant for a Work visa satisfies the criteria in par 457.223(4)(a)(i)-(iii) where the nomination of an occupation in relation to the applicant had been approved under s 140GB, the nomination was made by a person who was a standard business sponsor at the time the nomination was approved and the approval of the nomination had not ceased as provided by reg 2.75. In particular, regs 2.75(2)(d)-(e) provide that an approval of a nomination ceased where a standard business sponsor’s approval has ceased or the approval of that sponsor has been cancelled.
I apply these principles to the present application.
Consideration
The applicant was assisted by an interpreter. As he was self-represented, I have re-examined the materials comprising the court book, the Tribunal’s reasons and the application for review. The application for review contained 2 grounds.
Ground 1: relevant considerations
Ground 1 reads:
The Tribunal took account of irrelevant considerations and failed to take account of relevant considerations.
Particulars
Tribunal failed to have regard to relevant factors and took account of irrelevant factors when assessing whether subparagraph 338(2)(d)(ii) was met in the applicant’s case.
The Tribunal was authorised to determine the scope of review of a decision by limiting the questions of fact, the evidence and the issues that it was to consider. In the present case, the question posed was whether the Tribunal had jurisdiction to entertain an application for review of the delegate’s decision to refuse the visa application.
Grounds of judicial review which contend that an administrative decision maker has failed to take into account relevant considerations (or conversely took relevant considerations into account) are generally understood to be applicable to the exercise of statutory discretions.[7] Viewed from that perspective, I accept the Minister’s submission that the first ground of review does not immediately seem to engage with an applicable principle where, as here, the Tribunal was concerned to decide whether or not it had jurisdiction. Its decision as to jurisdiction was a jurisdictional fact and involved no exercise of discretion.
[7]Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 39-40 (per Mason J).
Nonetheless, it is clear that an administrative decision-maker will fall into error where they fail to take into account a consideration that they are bound to consider or take into account a consideration which is irrelevant. Whether a decision-maker is bound to consider a matter is determined by construction of the statute conferring a discretion.[8]
[8] Peko-Wallsend, (1986) 162 CLR 24, 39.
Although the application for review of the delegate’s decision purported to be an application for the review of a Part 5-reviewable decision, it was not. In fact there was no Part 5-reviewable decision available for review. Part 5 of the Act, which concerns Review of Part 5 Reviewable Decisions, is arranged in nine Divisions and comprises ss 336M – 379G. Certain criteria are prescribed by s 347 in relation to the making of an application for a merits review by a Tribunal, including as to the types of decision which are covered by such applications.[9]
[9]Sub-section 347(1) provides that an application for review of a Part 5 reviewable decision must be made in an approved form and given within a prescribed time.
In the context of identifying a Part 5 reviewable decision, the Parliament may dictate any facts or circumstances as constituting a precondition to the existence of a decision-maker’s jurisdiction: Parisienne Basket Shoes Pty Ltd v Whyte;[10] cf Plaintiff M64/2015 v Minister for Immigration and Border Protection.[11] It is unnecessary to explore the metes and bounds of this principle, save to note the settled reluctance to characterise identified criteria as constituting jurisdictional facts: cf Forrest & Forrest Pty Ltd v Wilson.[12] Suffice to say that by s 348, the Tribunal is conferred jurisdiction in relation to a Part 5-reviewable decision only if an application is properly made under s 347.
[10] (1938) 59 CLR 369, 391 (Dixon J, Evatt and McTiernan JJ agreeing).
[11] [2015] HCA 50, [26] (French CJ, Bell, Keane and Gordon JJ).
[12] [2017] HCA 30, [52] (Kiefel CJ, Bell, Gageler and Keane JJ).
While a Tribunal must review an application for the review of a Part 5 Reviewable Decision which is properly made to it,[13] the obligation to do so depends, relevantly, upon the delegate’s decision falling within the definition of the term ‘Part 5 reviewable decision’. This definition is supplied by s 338 which so far as is material provides as follows:
[13] Act, s 348.
(1)A decision is a Part 5 Reviewable decision unless this section so provides:
(a)-(d) . . .
(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 a Part 5-reviewable decision, if:
(a). . . ; and
(b). . . ; and
(c). . . :
(i). . . ; or
(ii). . . ; and
(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 grant the visa is made; or
(ii)an application for review of a decision not to grant 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.
(3)-(8) . . .
(9)A decision that is prescribed for the purposes of this subsection is a Part 5-reviewable decision.
(emphasis added)
Self-evidently, the definition of ‘Part 5 reviewable decision’ contains and thereby prescribes a series of cumulative requirements.
In Part 4 of the Regulations (which concerns the subject Review of decisions), Div 4.1 contains regulations which apply to the review of decisions other than decisions relating to a Protection visa. Within Div 4.1, reg 4.02(1A)(k) provides that for the purposes of s 338(2), a Subclass 457 visa is prescribed.
Accordingly, to constitute a Part 5-reviewable decision in respect of which the Tribunal obtained jurisdiction, the applicant was required to satisfy one of the criteria in sub-para 338(2)(d)(i) or (ii). By para 338(2)(d)(i)-(ii), an applicant for a temporary visa was required either to: (1) be sponsored at the time the application for review of the delegate’s refusal was made; or (2) have pending a review of a decision not to approve the nominated sponsor.
In Kandel v Minister for Immigration and Border Protection [2015] FCCA 2013 at [15], the court held:
The question of whether the Tribunal had jurisdiction turned on what are in substance jurisdictional facts. I find that an application for nomination identifying the applicant was lodged prior to the time of the lodging of the application for review. I find that in these circumstances the applicant met the criteria under a 338(2)(d)(i). I find that the Tribunal had jurisdiction.
As the court’s finding above made clear, in that case the Tribunal was seized of jurisdiction since the subject nomination had been lodged before the application for review was made.
Following Kandell, the issue was considered in Ahmad v Minister for Immigration and Border Protection.[14] The Full Court held that the expression ‘sponsored by an approved sponsor’ in para 338(2)(d)(i) envisaged there being both an ‘approved sponsor’ under s 140E and an applicant being identified in a nomination under s 140GB.[15] The Full Court further held that the Tribunal would have jurisdiction under para 338(2)(d)(ii) where there was a pending application for review of a decision to not approve a sponsor under s 140E, and also where there was a pending application for review of a decision not to approve a nomination under s 140GB.[16] In Ahmad, Katzmann, Robertson and Griffiths JJ held:[17]
In relation to the decision of the [Federal Court] in Kandel, since it appears the applicant was identified in a nomination under s 140GB and it was lodged prior to the time of the lodging of the application to review the decision to refuse to grant the visa to the non-citizen, s 338(2)(d)(i) was satisfied, as held by Judge Street at [12].
Although it is unnecessary to decide, we indicate that we would not be disposed to accept the broader submission put by Mr Jones that s 338(2)(d)(i) is satisfied where, at the time of the application for review of the visa decision, the visa applicant had previously been identified in a nomination, even if the nomination were adverse (and an application for review of that decision had not been made) or the nomination had by then lapsed.
[14] [2015] FCAFC 182.
[15]Ahmad, [2015] FCAFC 182, [97]-[98] (per Katzmann, Robertson and Griffiths JJ); see also Act, s 337 and Regulations, reg 4.02(1AA).
[16] Ahmad, [2015] FCAFC 182, [99]-[100].
[17] Ahmad, [2015] FCAFC 182, [112]-[113].
The issue was further considered by another Full Court in Dyankov v Minister for Immigration and Border Protection[18] which concerned the validity of an application for review in circumstances where an approved sponsor had nominated an applicant in relation to an occupation. That nomination had been refused and no application for review of that refusal had been made. The Full Court held that the term ‘sponsored by an approved sponsor’ in s 338(2)(d)(i) did not extend to situations where a nomination had been refused, and no review for that decision was pending.[19] The Full Court affirmed that the Tribunal had correctly found it did not have jurisdiction. Dynakov holds that unless an application for review of an adverse nomination decision was pending, the Tribunal would not have jurisdiction to review a refusal of a visa application. Logan, Griffiths and Moshinsky JJ stated:
[5]. . . It follows that, unless an application for review of the adverse nomination decision is pending (in which case the Tribunal would have jurisdiction under s 338(2)(d)(ii)), the Tribunal would not have jurisdiction to review a refusal to grant a visa to the visa applicant.
…
[56] Although the comments at [113] of Ahmad were obiter, the logical extension of the principal holding in Ahmad (regarding s 338(2)(d)(ii)) is that s 338(2)(d)(i) does not cover a case where a nomination has been refused. As noted above, that principal holding was not challenged in this appeal.
[18] [2017] FCAFC 81.
[19]Dyankov at [56]-[59] (per Logan, Griffiths and Moshinsky JJ); see also Ahmad at [113] (per Katzmann, Robertson and Griffiths JJ).
…
[58] . . . absent an approved nomination, the appellants would have been unable to satisfy the criteria for the visa. Unlike Ahmad, where the approved sponsor had sought review of the adverse nomination decision and that review was pending (and hence, it was held, the Tribunal had jurisdiction under s 338(2)(d)(ii)), in the present case there was no pending application to review the adverse nomination decision.
[59] For these reasons, we consider the preferable construction to be that the words “sponsored by an approved sponsor” in s 338(2)(d)(i) do not cover a situation where a nomination under s 140GB has been refused. Therefore, in the circumstances of the present case, the Tribunal did not have jurisdiction.
The Tribunal was entitled to determine whether its jurisdiction was engaged: Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia.[20] The Tribunal “necessarily has jurisdiction to determine whether it has the jurisdiction purportedly invoked in any proceeding”: Commonwealth of Australia v Lyon.[21] The Tribunal committed no jurisdictional error in acting in the manner complained of. Relatedly, I note that in Minister for Immigration and Border Protection v Singh,[22] Kirby J, in addressing a question whether a decision-maker lacked jurisdiction, observed:
A court should not intervene simply because it disagreed with the decision-maker's findings of fact. On the contrary, it should defer to the approach of the decision-maker, both in the assessment of the factual material and in the criteria adopted.
Kirby J cited Parisienne Basket Shoes as authority for that proposition.
[20] (2003) 128 FCR 507, [11] (Black CJ, Beaumont and Hill JJ).
[21] (2003) 133 FCR 265, [8] (Branson, Madgwick and Hely JJ).
[22] (2002) 209 CLR 533, [131].
Applied here, when the application for a merits review by the Tribunal was lodged (i.e. 19 June 2017), the applicant had no sponsorship by an approved sponsor. Nor was there pending any application for the review of a refusal of such sponsor. It was not to the point that the applicant had nominated another sponsor after the date on which the application for merits review of the delegate’s decision had been lodged with the Tribunal. In the circumstances, the Tribunal had no jurisdiction.
In my view Ahmad is distinguishable as in this matter the applicant was not the subject of any approved sponsorship or nomination at the time of his application to the Tribunal. Nor was there a pending application for review of a decision not to approve a sponsorship or nomination.[23]
[23]Eg Lee v Minister for Immigration and Border Protection [2016] FCA 294 (Flick J); Gulati v Minister for Immigration and Border Protection [2017] FCA 255 (Bromwich J).
Notwithstanding the Tribunal’s finding that it did not have jurisdiction did not involve the exercise of a discretion, the relevant matters that the Tribunal needed to consider in determining whether:
a)s 338(2)(d)(i) applied, was whether, at the time the application for review was made the applicant was sponsored by an approved sponsor (i.e., a standard business sponsor approved under s 140E);
b)s 338(2)(d)(ii) applied, was whether, at the time the application for review was made there was a pending review application relating to a decision not to approve:
i)the sponsor as a standard business sponsor under s 140E; or
ii)the nomination under s 140GB.[24]
[24] See Ahmad at [99] (per Katzmann, Robertson and Griffiths JJ).
As is apparent from the Reasons at [4], [16] and [20], the Tribunal took each of those matters into account. It was not required to take any other matters into account. No jurisdictional error is disclosed by this ground.
Ground 1 is rejected.
Ground 2: jurisdiction
Ground 2 reads:
The Tribunal erred at law in determining that it did not have jurisdiction to review the applicant’s application.
Particulars
The Tribunal failed to properly apply the reasoning of the full court decision in Ahmad v Minister for Immigration and Border Protection (2015) FCAFC 2167.
The Tribunal failed to properly apply the reasoning of the full court decision in Dyankov & Ors v Minister for Immigration & Anor (2016) FCCA 2167 (24 August 2016).
The Tribunal should have concluded that the applicant had been identify [sic] in a previously lodged nomination in the occupation of Welder and that the Tribunal had jurisdiction to hear and determine the applicant’s application which followed the refusal to grant him a Temporary Business Entry (Class UC) visa – Subclass 457.
I have addressed the Full Court’s obiter dictum statements in Ahmad above at [35] which have been confirmed by the Full Court’s holding in Dyankov,[25] which is binding authority: see at [36] above. These decisions have been applied subsequently: see e.g. Lee v Minister for Immigration and Border Protection;[26] Al Hamid v Minister for Immigration and Border Protection.[27] To adapt the reasoning in Al Hamid, an adverse outcome for this application was predetermined by the application of the binding authority of the Full Court in Dyankov. I do not consider any error as suggested by Ground 2 is made out.
[25] [2017] FCAFC 81.
[26] [2016] FCA 294, [15], [17] (Flick J).
[27] [2017] FCA 1256, [2] (Bromich J).
As neither of the circumstances set out in s 338(2)(d)(i) or (ii) existed at the time the applicant lodged his application for review of the delegate’s decision, there was no Part 5 reviewable decision which could properly have been the subject of review. The Tribunal was correct in finding that it did not have jurisdiction to consider such an application. Accordingly, Ground 2 is rejected.
Conclusion
For the reasons set out above, I concluded that the application must be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 16 May 2019
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