Patel v Minister for Immigration

[2015] FCCA 1583

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1583

Catchwords:
MIGRATION – Migration Review Tribunal – Temporary Business Entry (Class UC) visa – jurisdiction of the Tribunal – whether there was a nomination for the purposes of s.140GB – whether there was a refusal decision pending before the Tribunal – application dismissed.

Legislation:  

Migration Act 1958 ss.140GB, 338(2), 476

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

First Applicant: JAYDIP NARENDRABHAI PATEL

Second Applicant: BHAVIRA JAYDIPKUMAR PATEL

Third Applicant: VRUNDA JAYDIPKUMAR PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 924 of 2015

Judgment of: Judge Street

Hearing date: 5 June 2015

Date of Last Submission: 5 June 2015

Delivered at: Sydney

Delivered on: 5 June 2015

REPRESENTATION

Solicitors for the Applicant: Ms I. Djoneski

Counsel for the Respondent: Mr A. Markus

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the sum of $6000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 924 of 2015

JAYDIP NARENDRABHAI PATEL

First Applicant

BHAVIRA JAYDIPKUMAR PATEL

Second Applicant

VRUNDA JAYDIPKUMAR PATEL

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal holding that it did not have decision to conduct a review for the refusal of the delegate to grant the applicant a Temporary Business Entry (Class UC) visa.

2. The grounds of the application are as follows:

   1. The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   2. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act.

3. The matter was specifically listed for hearing today and the Court Book had been served and submissions had been forwarded to the applicant.  A solicitor appeared for the applicant.  When the matter was called after 3.15 pm they made an application for an adjournment on the basis of just being instructed in the matter. 

4. The application for an adjournment was opposed by the first respondent and the first respondent identified this was the first notice that had been given of any change of solicitor and that submissions had been forwarded under cover of letter dated 2 June 2015, which was tendered and marked as Exhibit A.

5. There was no utility in granting an adjournment when the proceedings are doomed to failure and it is clear, for the reasons given, that the proceedings are doomed to failure.

6. In relation to the first ground it is clear that the Tribunal sent a letter to the applicant on 19 January 2015, giving clear particulars of the reasons why the Tribunal lacked jurisdiction and inviting a response relevantly.  The letter provided as follows (CB94-95):

   I am writing about the applications for review made by you in relation to decisions to refuse to grant Temporary Business Entry (Class DC) visas.

   A preliminary view has been formed that your application for review was not valid, and that the Tribunal does not have jurisdiction to conduct a review.

   Following the recent decision of the Federal Circuit Court in MIBP v Lee [2014] FCCA 2881, the Tribunal is of the view that for your application to be valid there must have been, at the time that application was made, either a nomination of an occupation approved and in force, or an application for review of a decision to refuse the nomination pending before the Tribunal.

   I am of the view that your application was not valid, because it appears that at the relevant time (23 May 2014) there was no nomination of an occupation that was approved under s.140GB of the Migration Act 1958 and in force. The Department made a decision on 14 October 2013 to refuse the nomination relating to you that was made by Madhiuli Enterprise Pty Ltd. However, there was no application for review of a decision to refuse that or any other nomination pending before the Tribunal at the relevant' time. However, this is a matter which, must be determined by a Tribunal member.

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 12 February 2015. Your application, with any/comments you make, will then be referred to the Presiding Tribunal member to make a decision on your application. If the Tribunal member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

   If you have any questions, please email [email protected]. or contact me on the number listed below, or telephone the Tribunals national enquiry line on 1300361 969. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

7. Relevantly in this case the Tribunal held:

   3. 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 decision is not reviewable in the circumstances of this case because at the time the review application was lodged, there was no nomination of an occupation approved and in force, and no review of a sponsorship refusal decision pending before the Tribunal.

   4. The Tribunal wrote to the applicants on 19 January 2015 inviting comments on whether a valid application for review had been made. The Tribunal received no response to its letter.

   5. The Tribunal finds that at the time the review application was lodged, 23 May 2014, there was no nomination of an occupation relating to any of the applicants that was approved under s.140GB of the Act and was in force. At that time, there was also no application for review of a decision not to approve the sponsor, which was pending before the Tribunal.

   6. The Tribunal therefore finds that the requirements of s.338(2)(d) are not met.

   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.

8. Those findings were clearly correct in relation to both the application of s.338(2)(c)(i) in the following the decision of Minister For Immigration v Lee & Ors [2014] FCCA 2881 and in relation to the construction of s.338(2)(d)(ii) which construction is consistent with the decision of this Court in Ahmad v Minister for Immigration & Anor [2015] FCCA 1486.

9. As the Tribunal had no jurisdiction it was not necessary for the Tribunal to hold a hearing.  To the extent relevant the Tribunal properly identified the potential dispositive issue and gave the applicant an opportunity to respond, consistent with the dictates of procedural fairness and in accordance with the statutory provisions.

10. There is no substance, accordingly, in relation to ground 1 and it fails to identify any jurisdictional error

11. The ground 2 fails to identify any jurisdictional error.  The Tribunal's decision that it had no jurisdiction is, for the reasons I have identified, correct.  The application fails to identify any jurisdictional error.  The application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 June 2015