Patel v Minister for Immigration

[2015] FCCA 1685

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1685

Catchwords:
MIGRATION – Migration Review Tribunal – subclass 457 visa – whether there was a pending application within the meaning of s.338(2)(d) of the Migration Act 1958 – no jurisdictional error.

PRACTICE AND PROCEDURE – Show cause – application dismissed.

Legislation:  

Migration Act 1958, ss.140GB 338(2)(d)(i), 338(2)(d)(ii), 476
Migration Regulations 1994, reg.4.02(1AA)

Ahmad v Minister for Immigration & Anor [2015] FCCA 1486
Minister for Immigration v Lee & Ors [2014] FCCA 2881

Applicant: CHETANKUMAR PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1302 of 2015

Judgment of: Judge Street

Hearing date: 18 June 2015

Date of Last Submission: 18 June 2015

Delivered at: Sydney

Delivered on: 18 June 2015

REPRESENTATION

Solicitors for the Applicant: Mr C. Guan
Paul Guan & Associates

Solicitors for the Respondents: Ms N. Johnson
Mills Oakley

ORDERS

1. The application be dismissed under Rule 44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the sum of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1302 of 2015

CHETANKUMAR PATEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 14 April 2015 holding that it did not have jurisdiction in relation to an application for review of a decision to refuse to grant the primary visa applicant a subclass 457 visa.

2. The application under the First Court Date provides:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

3. The first respondent filed a response indicating that the application fails to establish any jurisdictional error in respect of the decision of the second respondent.

4. The first respondent has moved for an immediate show cause hearing. The grounds in the application assert a misconstruction either of s.338(2)(d)(i) or s.338(2)(d)(ii) by the Tribunal. The alleged error in the application are grounds in respect of which there is an adverse decision of this Court in the matter of Minister for Immigration v Lee & Ors [2014] FCCA 2881, which has been followed in relation to the proper construction of s.338(2)(d)(i). The Tribunal was correct to follow that decision. The relevant reasoning by the Tribunal is as follows:

   6. The Tribunal finds on the basis of the evidence before it that the primary visa applicants review application is not valid. This is because at the time the review application was lodged there was no nomination of an occupation that was approved and in force as required by s.338(2)(d)(i).nor was there a pending application for review of a decision not to approve the primary visa applicant’s sponsor as a standard business sponsor as required by s.338(2)(d)(ii).

   7. As the delegate’s decision is not MRT-reviewable in these circumstances it follows that the application for review was not properly made under s.347 for review of an MRT-reviewable decision for the purposes of s.348 and the Tribunal does not have jurisdiction in this matter.

5. This is a case where the Tribunal had notified the parties in advance on 26 March 2015 of the potential dispositive jurisdictional issue.

6. Mr Guan, solicitor for the applicants, proposed to advance an amended ground that there is a jurisdictional error by the Tribunal failing to find that the application to review a decision to refuse the subclass visa met the requirements of s.338(2)(d)(ii). Mr Guan provided particulars in support of that contention in which he sought to derive support for his construction from reg.4.02(1AA). Mr Guan contended that when the applicants applied to the Tribunal for a review of the visa application, the employer had applied for review of the nomination refusal under s.140GB. Mr Guan contended that in those circumstances there was a pending application within the meaning of s.338(3)(d)(ii).

7. That proposition is one that was rejected in the decision of this Court in Ahmad v Minister for Immigration & Anor [2015] FCCA 1486. The language in s.338(2)(d) is as follows:

   Section 338 Decisions reviewable by Migration Review Tribunal

   (2) …

   (d) …

   (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.

8. It is clear that there was no application to review the decision not to approve the sponsor and that there was no application for review pending in respect of that sponsorship decision within the meaning of s.338(2)(d)(ii).

9. Accordingly, there is no substance in the proposed amendment application, and I decline to grant the amendment.  Further, it is clear that the application as well as the proposed amendment application fail to disclose any arguable case and that this is an appropriate case to apply r.44.12.  The application is dismissed under r.44.12.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  30 June 2015