Patheja v Minister for Immigration
[2018] FCCA 3324
•21 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATHEJA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3324 |
| Catchwords: MIGRATION – Work visa application refused by delegate – no approved sponsorship nomination – Tribunal finds it has no jurisdiction to review delegate’s decision – judicial review – show cause hearing – application to adjourn hearing – medical certificate provided – hearing adjourned – applicant files notice of discontinuance – leave not granted – no jurisdictional error – Tribunal entitled to determine whether its jurisdiction was engaged – no reasonable chance of success for applicant’s grounds for review – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 Act 1958 (Cth), ss.140E, 140GB, 338, 347, 348, 411, 412, 476 Migration Regulations 1994 (Cth), reg.4.02, Sch.2 cl.457.223 |
| Cases cited: Ahmadv Minister for Immigration and Border Protection [2015] FCCA 2013 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 Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81 Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 Kandel v Minister for Immigration and Border Protection [2015] FCCA 2013 Minister for Immigration and Border Protection v Singh (2002) 209 CLR 533 MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593 Nichol v Discovery Africa Limited [2016] FCAFC 182 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 58 CLR 369 Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003) 128 FCR 507 Plaintiff M 64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 Siddique v Minister for Immigration and Border Protection [2014] FCA 1352 Spencer v The Commonwealth (2010) 241 CLR 118 SZTTW v Minister for Immigration and Border Protection [2014] FCA 837 SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6 Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158 |
| Applicant: | OM PATHEJA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 697 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 14 November 2018 |
| Date of Last Submission: | 14 November 2018 |
| Delivered at: | Melbourne |
| Orders Pronounced: | 14 November 2018 |
| Delivered on: | 21 November 2018 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor for the Respondents: | Mr Murano |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 7 April 2017 be dismissed.
The applicant pay the costs of the first respondent, including reserved costs, fixed at $4,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 697 of 2017
| OM PATHEJA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 7 April 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 March 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.
For the reasons that follow, the application should be dismissed. As appears below, on 12 November 2018, the applicant sought and was granted an adjournment of the hearing of this application. The hearing was adjourned until 14 November 2018. In the interim the applicant filed, but did not serve, a notice of discontinuance. The applicant appeared on the rescheduled hearing date and did not seek and was not granted leave to file that notice.
In the circumstances, I determined that the application should be dismissed. My reasons follow.
Background
The applicant, an Indian citizen aged 24 years, applied for a Temporary Work visa on 23 August 2016. In his application, the applicant listed Tabbit Ventures Pty Ltd (sponsor) as sponsoring employer and supplied a copy of an executed Employment Agreement for the position of cook (dependent upon the applicant obtaining the appropriate visa). The applicant also provided copies of numerous educational certificates, including from The Imperial College of Australia in hospitality and commercial cookery courses.
On 17 October 2016, the Department wrote to the applicant notifying him that his sponsor did not have an approved nomination, and invited the applicant to withdraw his application or provide written comment within 28 days of his intentions regarding his visa application.
On 23 November 2018, the delegate of the Minister 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 to 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 8 December 2016, the applicant applied to the Tribunal for review of the delegate’s decision.
On 17 February 2017, the Tribunal invited the applicant to comment on the validity of his application for review because: (1) at the time his review application was lodged, the applicant was not identified in a nomination under s 140GB of the Act that was approved or pending; and (2) nor was there a pending application for review before the Tribunal in respect of a decision not to approve the sponsor under s 140E of the Act, or a decision not to approve the nomination under s 140GB of the Act.
On 2 March 2017, the applicant provided a response to the Tribunal via email which attached evidence that the Department had received a further nomination application by the sponsor on 27 February 2017.
On 15 March 2017, the Tribunal notified the applicant of its decision. In a written statement of reasons dated 14 March 2017, the Tribunal decided that it did not have jurisdiction to determine the application.
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 coupled with r 4.02(4) of the Regulations prescribed the types of decisions that were reviewable by the Tribunal and the circumstances in which they were reviewable.
The Tribunal found that as the applicant was within the migration zone when the visa application was lodged, pars 338(2)(a)-(c) applied such that the applicant was required to satisfy par 338(2)(d) in order for the Tribunal’s jurisdiction to be engaged. Referring to Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, the Tribunal found that it did not have jurisdiction under par 338(2(d)(i) because, at the time the application for review was lodged on 8 December 2016: (a) the applicant was not subject to an approved nomination for sponsorship; (b) nor was any valid nomination relating to the applicant pending for determination with the Department.
In making its decision, the Tribunal noted that further nomination applications appeared to have been lodged on 12 December 2016 and 27 February 2017. As to those matters also, the Tribunal found that it did not have jurisdiction under s 338(2)(d)(ii) because, at the time the review application was made, there was no pending review of any decision to refuse the sponsor seeking to nominate the applicant, whether it be a review of a decision made under ss 140E or 140GB of the Act.
Procedural history
On 7 April 2017, the applicant filed an application for judicial review of the Tribunal’s decision. The applicant sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the Tribunal decision made on 14 March 2017.
The applicant swore an affidavit on 7 April 2017 exhibiting the Tribunal’s Statement of Decision and Reasons but adduced no further evidence in relation to the application.
By a Response filed on 21 April 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 11 October 2017. On that date orders were made, by consent, listing the matter for a Show Cause Hearing. Further orders were made regulating the filing by the applicant of any amended application, affidavits and written submissions.
The applicant has filed no amended application or submissions.
The Show Cause Hearing was listed for 12 November 2018.
By an email sent to the court (but not the respondents) on the day immediately before the hearing, the applicant sent an email stating:
I would like to inform you that I have been suffering from acute back pain from last two days due to which I will not be able to attend my hearing tomorrow 12/11/18. The doctor advised me not to travel or stand and take full bed rest for next few days. I have attached my medical certificate issued by GP. Kindly accept my apology for any inconvenience caused by this condition. I request you to give me next possible hearing date.
The medical certificate attached to the email stated:
Mr Om Patheja has a medical condition and will be unfit for work from 12/11/2018 to 12/11/2018 inclusive.
The applicant did not appear at the hearing on 12 November 2018. Over the foreshadowed objection of the Minister, I acceded to the request that the hearing be adjourned. In circumstances where the applicant’s email sought that the hearing be adjourned to the next possible hearing date and the medical certificate was relatively non-descript, I adjourned the hearing to 14 November 2018.
On 13 November 2018, the applicant filed, but did not serve, a notice of discontinuance. He had not sought leave to do so. No leave has been granted. When the matter was called on for hearing on 14 November 2018, the applicant initially did not appear but arrived in court later.
Applicable principles
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).
Rule 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) confers power on the court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding, or to adjourn the proceeding for a final hearing, or otherwise to make final orders in relation to the claims for relief.
The course which the court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). An order under r 44.12(1) is an interlocutory order: r 44.12(2). The power conferred by r 44.12 has been described, aptly, as a form of summary dismissal: MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593, [13] (Whelan J); SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6, [10] (Smith J).
As the power conferred by r 44.12 is akin to a form of summary dismissal, it is convenient to address briefly the principles relating to summary judgment. Those principles are well settled: see Spencer v The Commonwealth (2010) 241 CLR 118.
Caution must be exercised when considering whether to grant summary judgment. Such caution is equally appropriate upon the determination of a show cause hearing.
The power to grant summary judgment is expressed in permissive terms; the court may give judgment and may order that it be dismissed generally or in relation to any claim. Critically, in the case of summary judgment, the power is not engaged unless the court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding. So too, the power to dismiss an application on a show cause hearing is engaged only where the applicant has not satisfied the court that an arguable case for relief has been raised.
In Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158, 122 IPR 190, Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, supra, stated a series of further propositions, including the following:
a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;
b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;
c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;
d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment;
see at [46]-[49]. The propositions stated in Upaid Systems were endorsed by the Full Court in Nichol v Discovery Africa Limited [2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J).
In SZUTB, Smith J held that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; (2) a residual discretion whether or not to dismiss the application: (2015) 298 FLR 6, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352, [19]-[21]
(Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J). As Gilmour J explained in Siddique, it would be “wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.” That is, the residual discretion remains to be considered.
I apply those principles in determining this show cause application.
The application for review in this case purported to be an application for the review of a Part 5-reviewable decision.
Certain criteria are prescribed by s 347 in relation to the making of an application for review by a Tribunal including as to the times within which and the types of decision which are covered by such applications. I accept the Minister’s submission that 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 (1938) 58 CLR 369, 391 (Dixon J, Evatt and McTiernan JJ agreeing); cf Plaintiff M 64/2015 v Minister for Immigration and Border Protection [2015] HCA 50, [26] (French CJ, Bell, Keane and Gordon JJ). It is unnecessary to explore the metes and bounds of the principle, including the well settled reluctance to characterise identified criteria as constituting jurisdictional facts: cf Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30, [52]. Suffice to say that by s 348, the Tribunal is conferred jurisdiction in relation to a Part 5- reviewable decision if an application is properly made under s 347.
Section 338 provides the definition of Part 5-reviewable decision and relevantly provides by sub-s 338(2):
(1)…
(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)the visa could be granted while the non-citizen is in the migration zone; and
(b)the non-citizen made the application for the visa while in the migration zone; and
(c)the decision was not made when the non-citizen:
(i)was in immigration clearance; or
(ii)had been refused immigration clearance and had not subsequently been immigration cleared; 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.
For the purposes of s 338(2), a Subclass 457 visa is prescribed: see reg 4.02(1A)(k).
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-s 338(2)(a)(i) or (ii).
Of relevance to the present application are the prescribed times at which an applicant must be sponsored in relation to their application. By para 338(2)(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.
By Part 457.22 of Sched 2 of the Regulations, criteria are set out which apply to Temporary Work (Skilled) visa applications. Relevantly, an applicant for such a visa satisfied sub-cl 457.223(4) where a nomination of an occupation in relation to an applicant had been approved under s 140GB and had not ceased to have effect.
Ground 1 – par 338(2)(d)(i)-(ii)
Ground one reads:
That the Tribunal committed jurisdictional error in misconstruing and interpreting Section 338(2)(d)(i) and (ii) of the Migration Act 1958 (Act).
Particulars
a)The Tribunal’s reasoning that it has no jurisdiction under section 338(2)(d)(i) because the applicant was not subject to an approved nomination pending for determination with the Department at the time the application for review was lodged on 8 December 2016 is flawed although is aware and accepts the applicant.
b)The Tribunal was cognisant of the fact that nomination applications was lodged by the applicant on 12 December 216 and 27 February 2017 and the applications are before the Department pending review before the Tribunal made the decision.
c)Applying Kandel v Minister for Immigration and Border Protection [2015] FCCA 2013 the Tribunal erred in concluding that it lacked jurisdiction to consider an application for review in circumstances where a nomination application was still under consideration.
d)Section 140GB(1) of the Act enabled an approved business sponsor in this case Tabbit Ventures Pty ltd to nominate an applicant or proposed applicant for the visa in relation to the applicant’s proposed occupation. Section 140GB(2)(b) obliged the Minister to approve an approved sponsor’s nomination if the prescribed criteria under regs 2.72(3) to (12) were satisfied.
e)Minister’s powers to refuse or grant a visa is provided under section 65 of the Migration Act. If the Minister refused the application the refusal was reviewable under section 338 of the Act.
f)The proper construction of s 338(2)(d)(i) applying Kandel is jurisdiction persisted even where the nomination had lapsed because the applicant had obtained and lodged fresh nomination. There was a prospect of the nomination decision being reversed and the applicant gaining nomination. The nomination under 2 338(2)(d)(i) operated only at the time of the application for review of the visa decision.
g)The Tribunal had jurisdiction to deal with the matter and made a jurisdictional error by failing to exercise jurisdiction.
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 judicial 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.
Following Kandell, the issue was considered by the Full Court in Ahmad at [112]-[113], where Katzmann, Robertson and Griffiths JJ held:
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.
The issue was further considered by another Full Court in Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81 which held 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 held:
[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.
…
[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.
I agree in the Minister’s submissions that on the facts of the present application, when the application for a merits review by the Tribunal was lodged (i.e. 8 December 2016), the applicant had no sponsorship by an approved sponsor – to the contrary, the sponsorship had been refused. 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 lodged further sponsorship applications after the date on which the application for merits review of the delegate’s decision had been lodged with the Tribunal. In all of those circumstances, the Tribunal had no jurisdiction.
The Tribunal was entitled, as it did, to determine whether its jurisdiction was engaged: Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003) 128 FCR 507, [11] (Black CJ, Beaumont and Hill JJ). The Tribunal “necessarily has jurisdiction to determine whether it has the jurisdiction purportedly invoked in any proceeding”: Commonwealth of Australia v Lyon (2003) 133 FCR 265, [8] (Branson, Madgwick and Hely JJ). 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 (2002) 209 CLR 533 at [131], 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.
Ground 1 is rejected.
Ground 2 – Ahmad [2015] FCAFC 182 misconstrued
Ground two reads:
The Tribunal misconstrued the case of Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182.
a)The Tribunal erred by misconstruing the case of the Ahmad and erroneously was of the view of that the Full Court ‘expressly declined to accept the submission . . .’
b) The Tribunal erred by not considering paragraphs 89 to 91 of the decision where the Minister conceded s338(2)(d)(i) would be satisfied if there was a nomination under s140GB(1) which was yet to be determined at the time of the making of the application for review to the Tribunal. The Minister further conceded in the same case that reg 4.02(1AA) did not specify the point in time which the identification in a nomination under s140GB must occur. The Minister also defended the outcome in Kandel because at the time the application for review of the visa decision was made with the Tribunal in that case, a fresh nomination had just been made and was undetermined at that point in time. Thus the Minister accepted that the Tribunal had jurisdiction in those circumstances.
I have addressed the obiter dictum statements in Ahmad above at [41]. As considered at [42] above, that the statements made in Ahmad have been confirmed by the holding in Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81 which is binding authority. These decisions have been applied subsequently: see e.g. Al Hamid v Minister for Immigration and Border Protection [2017] FCA 1256, [2] (Bromich J). 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 of the kind suggested by Ground 2 is made out.
Ground 2 is rejected.
Conclusion
As the applicant has not satisfied the court that an arguable case for relief is demonstrated respecting the existence of jurisdictional error, I cannot conclude that either of the applicant’s grounds of review would have a reasonable chance of success. Nor am I persuaded that discretionary considerations militate in favour of a conclusion that the show cause application should otherwise be adjourned for a final hearing: see r 44.12(1)(b).
It follows that the application must be dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 21 November 2018
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