PHORNPISUTIKUL v Minister for Immigration

[2016] FCCA 1934

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHORNPISUTIKUL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1934

Catchwords:
MIGRATION – Application for Temporary Business Entry (Class UC) visa – review of decision of Migration Review Tribunal – whether the Tribunal denied the applicant procedural fairness by failing to review the delegate’s decision because it was not an MRT-reviewable decision – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 140GB, 338, 347, 348

Migration Regulations 1994 (Cth), regs.2.59(c), 4.02, cl.457.223(4) of sch.2

Cases cited:
Ahmad v Minister for Immigration & Border Protection (2015) 237 FCR 365; [2015] FCAFC 182
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26

Applicant: KAMPANAT PHORNPISUTIKUL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 976 of 2015

Judgment of: Judge Smith

Hearing date: 17 May 2016

Date of Last Submission: 31 May 2016

Delivered at: Sydney

Delivered on: 19 August 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms A Wong, Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 976 of 2015

KAMPANAT PHORNPISUTIKUL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION  REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant is a citizen of Thailand. On 28 June 2013 he applied for a subclass 457 Temporary Work (Skilled) visa. It was a criterion for the grant of that visa that a nomination of an occupation in relation to the applicant had been approved under s.140GB of the Migration Act 1958 (Cth).

2. The applicant relied on the nomination of a position sponsored by Thai Diamonds 999 Pty Ltd (“Thai Diamonds”) however, on 22 October 2013, a delegate of the Minister decided not to approve that nomination. On 30 October 2013 Thai Diamonds applied to the Migration Review Tribunal[1] for review of that decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

3. On 5 December 2013 the same delegate decided not to grant the applicant a visa because the nomination had not been approved. The applicant applied to the Tribunal for review of that decision on 12 December 2013. At that time, the application for review lodged by Thai Diamonds had not been completed.

4. On 24 March 2015 the Tribunal found that it had no jurisdiction to review the delegate’s decision because it was not an “MRT[2]-reviewable decision” within the meaning of s.338 of the Act. It explained, at [4]:

   [2] Migration Review 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.

   (Emphasis in original)

5. Although that was a correct statement of the law as it was understood at the time, the subsequent decision of the Full Court of the Federal Court in Ahmad v Minister for Immigration & Border Protection (2015) 237 FCR 365; [2015] FCAFC 182 changed that. In that case, the Court held at [99], that the words “decision not to approve the sponsor” in sub-s.338(2)(d)(ii) includes both the approval of the sponsor under s.140E as well as the approval of the nomination under s.140GB of the Act. In those circumstances, the Minister accepted that the Tribunal had fallen into error.

6. However, the Minister argued that the error was not jurisdictional because the Tribunal did not have jurisdiction in any event. For the reasons that follow, I agree that the applicant should be denied relief.

Consideration

1. Section 348 of the Act provided at the relevant time, that if an application is properly made under s.347 for review of an MRT‑reviewable decision, the Tribunal must review the decision. Section 347(2) provides that an application for review of particular types of MRT-reviewable decisions may only be made by certain persons. The combination of those two provisions means that the Tribunal has no jurisdiction if an application for review is made by a person other than one authorised by s.347(2) to make the application. That is what occurred here.

2. An “MRT-reviewable decision” was a decision that fell within s.338 of the Act. Here, the Tribunal proceeded on the basis that s.338(2) described the relevant type of decision. However, that provision only relates to decisions made where the applicant made the application for the visa while in the migration zone. The migration zone is, roughly speaking, Australia: s.5. The evidence before the Court establishes that the applicant was not in the migration zone when he applied for the visa. That means that s.338(2) was not applicable.

3. A decision that is prescribed for the purposes of s.338(9) is an MRT-reviewable decision. If a decision falls within s.338(9), the only person who can make an application to the Tribunal for review of the decision is the person prescribed for that purpose: sub-s.347(2)(d).

4. Regulation 4.02 of the Migration Regulations 1994 (Cth) prescribes both decisions for the purposes of s.338(9) and the person who can make an application for review of that decision for the purposes of sub-s.347(2)(d).

5. The decision in this case could only have come within sub-reg.4.02(4)(l) which provides:

   (l)a decision to refuse to grant a Subclass 457 (Temporary Work (Skilled)) visa to a non-citizen if:

   (i)the non-citizen is outside Australia at the time of the application; and

   (ii) the non-citizen was sponsored or nominated, as required by a criterion for the grant of the visa, by:

   …

   (B)     a company that operates in the migration zone; or

   …

6. There is some ambiguity in sub-reg.4.02(4)(l)(ii). On one reading, it requires that there be a criterion that requires the non-citizen to be sponsored or nominated by a company that operates in the migration zone. Another is that the criterion only requires that the non-citizen be sponsored or nominated. The difficulty is that it is not a criterion for the grant of a subclass 457 visa that the application be sponsored or nominated by a company that operates in the migration zone: see cl.457.223(4) and reg.2.59(c). In those circumstances, given that the regulation is specifically aimed at subclass 457 visa decisions, the ambiguity is to be resolved in favour of the second meaning in order to bring harmony to the regulations: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70] . That is, it applies when the applicant was sponsored or nominated as required by the criterion.

7. In those circumstances, sub-s.347(2)(d) read with sub-reg.4.02(5)(k), provided that only the sponsor or nominator could make an application for review of the Tribunal’s decision. However, Thai Diamonds did not make the application. The applicant did. For that reason, the Tribunal had no jurisdiction in respect of the decision to refuse to grant the applicant a subclass 457 visa and, in spite of the error made by the Tribunal, the inevitable result was that the Tribunal could not review that decision. Accordingly, relief will be refused in the exercise of the Court’s discretion: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [57] – [58] (Gaudron and Gummow JJ); SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

8. I would add that the grounds raised by the applicant did not address the issues considered above. They were (unaltered):

   1)MRT did give me an opportunity to have hearing;

   2)I meet all the requirements to grant my visa;

   3)MRT should give me natural justice for my application so that my visa can be granted.

9. The Tribunal invited the applicant to a hearing and wrote to him inviting him to comment on the fact that there was no pending application for review of a decision not to approve a sponsor. In those circumstances, there was no denial of procedural fairness and, in any event, for the reasons I have given, even if there had been, relief would have been refused on discretionary grounds.

10. The application will be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 19 August 2016