Noorani v Minister for Immigration
[2015] FCCA 1551
•4 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NOORANI v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1551 |
| Catchwords: PRACTICE AND PROCEDURE – Show cause – proceedings dismissed. |
| Legislation: Migration Act 1958, ss.338(2)(d), 476 |
| Ahmad v Minister for Immigration and Anor [2015] FCCA 1486 Minister for Immigration & Border Protection v Lee [2014] FCCA 2881 |
| Applicant: | MD EKRAMUL ISLAM NOORANI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1180 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 4 June 2015 |
| Date of Last Submission: | 4 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2015 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondent: | Ms N. Johnson Mills Oakley Lawyers |
ORDERS
The application be dismissed under Rule 44.12 of the Federal Circuit Court Rules 2001.
The applicant pay the first respondent’s costs fixed in the sum of $3416.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 1180 of 2015
| MD EKRAMUL ISLAM NOORANI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
As Corrected
This is an application for a constitutional writ within s.476 of the Migration Act in respect of the decision of the Tribunal on 7 July 2015 holding that the Tribunal did not have jurisdiction in respect of an application for review made on 23 May 2014 of a delegate’s decision refusing the applicant a Temporary Business Entry (Class UC) visa. The grounds in the application are as follows:
1. I am requesting FCC to get me proper justice.
2. I have in Australia 8 years and son who is permanent residence here. I try to support my son every week for his food and study purpose.
3. If I get proper justice mentally it will be great support for me.
Those grounds fail to disclose any arguable jurisdictional error in the application.
It is clear that the Tribunal identified to the applicant by letter on 19 March 2015 the potentially dispositive issue in respect of the want of jurisdiction and drew the applicant’s attention to the requirements of s.338(2)(d) and the difficulty facing the applicant in respect of the first limb under s.338(2)(d)(i) as a result of the decision in Li and the absence of a relevant application within s.338(2)(d)(ii).
The applicant had earlier written to the Tribunal on 24 February 2015 identifying the difficulties he was having and identifying that it would be likely that the business would be in a position to lodge a new nomination in 18 months time. The Tribunal had no obligation to specifically respond to that request. The Tribunal clearly identified the relevant issue relating to the want of jurisdiction. It is clear that the applicant’s migration agent appreciated and understood that issue by the response provided dated 31 March 2015 which the Tribunal took into account. The Tribunal’s findings relevantly were as follows:
4. Following the decision of the Federal Circuit Court in MIBP v Lee [2014] FCCA 2881, for the purposes of s.338(2)(d)(i) there must have been, at the time the review application was made, a nomination of an occupation approved and in force. For the purposes of s.338(2)(d)(ii), there must have been at the relevant time, a review of a sponsorship refusal decision pending before the Tribunal. The Tribunal does not have jurisdiction where an application for review of a decision to refuse a nomination was pending at the time the review application was lodged, as s.338(2)(d)(ii) only refers to review of a decision not to approve the sponsor.
5. On 5 May 2014 the delegate refused the applicant a visa because the related nomination by an approved business sponsor BP Fairfield Pty Ltd was not approved. Review was sought of the decision not to approve the nomination and by separate decision the Tribunal affirmed that decision.
6. The Tribunal wrote to the applicant on 19 March 2015 inviting comments on whether a valid application for review had been made. The applicant’s adviser submitted that the Tribunal still had jurisdiction to determine the matter because when the applicant sought review of the decision refusing him the visa the decision in respect of the related nomination was the subject of a review application and brought the matter within the terms of s.338(2)(d)(ii). In the Tribunal’s view the provisions at s.338(2)(d)(ii) refer to review being sought of a decision not to approve the sponsor, which is not the same as refusal of approval to a related nomination. In circumstances such as here where the sponsor has in fact already been approved there can be no question of a relevant application being before the tribunal to satisfy s.338(2)(d)(ii).
7. The Tribunal finds that at the time the review application was lodged, there was no nomination of an occupation relating to the applicant that was approved under s.140GB of the Act and was in force. At the time of the purported application for review, there was also no application for review of a decision not to approve the sponsor which was pending before the Tribunal for the purpose of s.338(2)(d)(ii) as the sponsor had at that time been approved.
8. The Tribunal therefore finds that the requirements of s.338(2)(d) are not met.
It was in those circumstances that the Tribunal concluded that the delegate’s decision was not an MRT-reviewable decision. That decision was clearly correct. The Tribunal made no jurisdictional error in following the decision of Minister for Immigration & Border Protection v Lee [2014] FCCA 2881 in relation to s.338(2)(d)(i). Further, the Tribunal made no jurisdictional error in its approach to s.338(2)(d)(ii). I note that the Tribunal’s approach is consistent with the decision of this Court in respect of that provision in Ahmad v Minister for Immigration and Anor [2015] FCCA 1486.
There was no obligation on the Tribunal to adjourn the matter in the circumstances where it had no jurisdiction. There was no obligation on the Tribunal to conduct a hearing in circumstances where it had no jurisdiction. The decision that the Tribunal had no jurisdiction cannot be said to be unreasonable or irrational. The Tribunal decision was correct in law and there was no obligation on the Tribunal to make further inquiries in circumstances where it had no jurisdiction.
To the extent that the application identifies findings of the delegate, it seeks to agitate issues of merits which it was the domain of the Tribunal to determine and the jurisdiction enlivened by this Court is in relation to the decision of the Tribunal. I am clearly satisfied that the application fails to disclose any arguable case within r.44.12. The application is dismissed under r.44.12.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 24 June 2015
CORRECTIONS
Reference in para.5 changed to Minister for Immigration & Border Protection v Lee [2014] FCCA 2881.
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