Raj v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 941
Federal Circuit and Family Court of Australia
(DIVISION 2)
Raj v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 941
File number: MLG 19 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 15 November 2022 Catchwords: MIGRATION – Temporary Business Entry visa – decision of the Administrative Appeals Tribunal – whether the approval of a nomination for a subclass 482 visa was a reason to adjourn a proceeding regarding a subclass 457 visa – whether the Tribunal erred in determining that it did not have jurisdiction – whether the applicant was denied natural justice guarantees – whether the Tribunal should have invited the applicant to attend a hearing before it – remittal futile in any event – Ministerial Intervention – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 140GB, 338, 351, 360, 411, 476 and Part 5
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth), reg 4.02 and cl 457.223 in Schedule 2
Cases cited: Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182
Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Benissa v Minister for Immigration and Border Protection [2016] FCA 76
Craig v State of South Australia (1995) 184 CLR 163
Cui v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 96
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81
James v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1202
Kioa v West (1985) 159 CLR 550
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 640
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of hearing: 2 November 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms S Moxey Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 19 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VIPIN RAJ
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
15 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application (as amended on 2 November 2022) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
Background
The applicant is a citizen of India (Court Book (“CB”) 1 & 54).
On 3 January 2017, the applicant applied for a Temporary Business Entry (Class UC) (Subclass 457) visa (the “visa”) (CB 1-14). His wife and daughter were included in that visa application but are not parties to the proceeding in this Court.
In his visa application, the applicant listed “Shiraaz Melbourne Pty Ltd” (the “sponsor”) as his sponsoring employer (CB 10). With that application, the applicant also provided identity documents, medical insurance documents and educational records (CB 15-21).
On 23 February 2017, the then Department of Immigration and Border Protection (the “Department”) asked the applicant to provide more information in relation to his visa application (CB 22-38).
No additional documents were provided by or on behalf of the applicant.
On 21 September 2017, a delegate of the first respondent (the “Minister”) refused to approve the nomination application lodged by the sponsor in relation to the applicant (Affidavit of Adam Cunynghame affirmed and filed on 6 July 2022 (the “Cunynghame affidavit”) 6-11).
That same day (also on 21 September 2017), the Department wrote to the applicant inviting him to comment on the fact that the sponsor did not have an approved nomination for him. The letter from the Department also explained that, as a result, the applicant’s visa application was “unlikely to be successful” (CB 39-41).
No response was provided by or on behalf of the applicant.
On 23 October 2017, a delegate of the Minister refused to grant the applicant the visa
(CB 47-51). The delegate was not satisfied that the applicant met cl 457.223(4)(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) because there was no approved nomination in place for him (CB 48).
On 10 November 2017, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 52-53). He provided a copy of his passport to the Tribunal with that application (CB 54).
On 14 November 2017, the Tribunal invited the applicant to comment on the validity of his application (CB 55-56). Specifically, the Tribunal stated:
I am of the view that your application is not valid. This is because at the time the review application was lodged the applicant was not identified in a nomination under s.140GB of the Migration Act 1958 that was approved or pending. Nor was there a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E, or a decision not to approve the nomination under s.140GB of the Act. However, this is a matter which must be determined by a Member.
On 28 November 2017, the applicant sent an email to the Tribunal advising that he had lodged his application “within the 21 days … to lodge a valid [Tribunal] appeal” and that the sponsor had “gone into administration after the visa application was lodged”. He further advised that a review of the decision to refuse the nomination application had not been lodged because “the business was not operational at the time of the refusal” (CB 57-58).
On 6 December 2017, the Tribunal determined that it did not have jurisdiction to hear the matter as the delegate’s decision was not a reviewable decision in accordance with the provisions set out in s 338(2)(d) of the Migration Act 1958 (Cth) (the “Act”) (CB 62-65).
On 3 January 2018, the applicant sought judicial review of the Tribunal’s decision in this Court (CB 66-70). With that application, the applicant also filed a supporting affidavit annexing a copy of the Tribunal’s decision (CB 71-72). The application for judicial review is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s decision
The Tribunal’s decision is four pages in length and spans 16 paragraphs.
The Tribunal first outlined the decision under review and explained that ss 338 and 411 of the Act and r 4.02 of the Regulations set out the range of decisions reviewable in the Migration and Review Division of the Tribunal and the circumstances within which they are reviewable (at [1]-[2]).
The Tribunal then explained that the decision to refuse to grant a subclass 457 visa was only a reviewable decision under Part-5 of the Act in certain circumstances (at [3]) and set out those circumstances as follows:
4.These are: if the applicant made the visa application while in the migration zone and, where it is a criterion for the grant of the visa that the applicant is 'sponsored' by an 'approved sponsor', either the applicant is sponsored by an approved sponsor at the time the application for review of the visa refusal is made or an application for review of a decision not to approve the sponsor has been made but at the time the application for review of the visa refusal is made, review of the sponsorship decision is pending: s.338(2)(d) of the Act and r.4.02(1A) of the Migration Regulations 1994 (the Regulations).
5.The term 'sponsored' is relevantly defined as including being identified in a nomination under s.140GB of the Act: s.337 of the Act and r.4.02(1AA) of the Regulations. The term 'approved sponsor' is defined in s.5(1) of the Act as a person who has been approved by the Minister under s.140E of the Act in relation to a class prescribed by r.2.58 of the Regulations and whose approval has not been cancelled or otherwise ceased to have effect, in relation to that class; or a person (other than the Minister) who is party to a ‘work agreement’.
6.For an applicant who claims to be nominated by a standard business sponsor, a nomination of any occupation in relation to the applicant must have been approved under s.140GB of the Act and the nomination made by a person who was a 'standard business sponsor' at the time the nomination was approved: cl.457.223(4) of Schedule 2 to the Regulations. Therefore it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor and it follows that s.338(2)(d) applies to this review application: Ahmad v MIBP [2015] FCAFC 182 (Katzmann, Robertson and Griffiths JJ, 16 December 2015) (Ahmad) at [95] – [96].
The Tribunal continued:
7.Therefore, a decision is reviewable where, at the time the review application is made, or within the time for applying for review, either: the Subclass 457 visa applicant is identified in a nomination under s.140GB of the Act by an approved sponsor. This includes a nomination application that has not yet been determined, or an approved nomination.
8.It does not include a nomination that has been refused with no review sought of that refusal, or a nomination that has expired: s.338(2)(d)(i); or there is a pending application for review of a decision not to approve the sponsor as a standard business sponsor under s.140E, or a pending review of a decision not to approve the nomination under s.140GB: s.338(2)(d)(ii).
The Tribunal detailed that the Department had refused a nomination application submitted by the sponsor in relation to the applicant on 21 September 2017 and noted that the applicant’s associated visa application had consequently been refused on 23 October 2017. The Tribunal also noted that no application had been received in relation to the refusal of the nomination application (at [9]).
The Tribunal confirmed that on 14 November 2017, it sought the applicant’s comments on the question of jurisdiction and asked for any comments to be provided by 28 November 2017 (at [10]).
The Tribunal continued:
11.On 28 November 2017 the applicant responded stating that his application for review was lodged within the 21 prescribed days and that SHIRAAZ MELBOURNE PTY LTD had gone into liquidation and this is why an application to review the nomination was not lodged. The applicant sated that he had secured a new employer which will lodge a nomination and asked for additional time to “lodge a valid nomination application with DIBP”.
The Tribunal considered the applicant’s circumstances in light of current case law (in the matters of Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 (“Ahmad”) and Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81) and was of the view that, at the time of the review application in this matter, there was no nomination made by an approved standard business sponsor at the time the applicant had lodged his review application (or within the prescribed time period for doing so) (at [12]).
The Tribunal then determined as follows:
13.This application for review was lodged on 10 November 2017. While the applicant states that he has a new employer who will lodge a new nomination application (in respect of him), department records confirm that, at the time this application for review was lodged and within the prescribed period of time for lodging the application for review, ‘SHIRAAZ MELBOURNE PTY LTD’ did not have an approved nomination in respect of the applicant and nor was there another employer who was a standard business sponsor who had lodged a valid nomination in respect of the applicant. Therefore the applicant was not, at the time the review application was lodged on 10 November 2017, the subject of a nomination made by a person who was a standard business sponsor which was not finally determined by the department.
14.Specifically, at the time of this review application, the Tribunal finds that the applicant was not identified in a nomination made by a standard business sponsor which had been approved or was pending. Nor was he identified in a nomination made by a standard business sponsor which had been approved or was pending within the prescribed period for review being 21 calendar days after the applicant was notified of the visa refusal decision.
The Tribunal ultimately found that, because the delegate’s decision was not a reviewable decision in the circumstances of the matter before it, it had no jurisdiction in relation to that matter (at [15]-[16]).
Application to this Court
The application for judicial review filed by the applicant on 3 January 2018 contains two “grounds of review”, as follows:
l.The Administrative Appeals Tribunal made an error in the decision as it has the jurisdiction on this matter under s.338(2)(d)(i) and (iii) of The Migration Regulations 1994.
2.The inability of the Administrative Appeals Tribunal to not grant natural justice to the applicant in relation to the matter to grant some time to be able to lodge a fresh nomination application by an approved sponsor.
These grounds of review were repeated in the applicant’s affidavit (also deposed and filed on 3 January 2018).
On 2 October 2018, procedural orders were made by Registrar Luxton of this Court giving the applicant an opportunity to file an amended application, any affidavits, a supplementary court book and written submissions. Unfortunately, no additional materials were filed by or on behalf of the applicant.
The materials before this Court thus include the application for judicial review and supporting affidavit filed by the applicant on 3 January 2018, an Amended Court Book numbering 72 pages (marked as Exhibit 3), written submissions filed by the Minister on 6 July 2022 and the Cunynghame affidavit (read into evidence at the hearing).
The applicant appeared before this Court on 2 November 2022 without legal representation. Ms Moxey appeared on behalf of the Minister.
The Court confirmed with the applicant that he had received copies of the Court Book, the Minister’s written submissions and the Cunynghame affidavit.
Adjournment Request
The Court notes that on 31 October 2022, two days prior to the scheduled hearing, the applicant contacted the Court and requested an adjournment of the hearing. He stated:
First of all I wanted to express how grateful I am of you for granting me the extension previously.
During that time, I worked really hard and spoke to my employer In order to seek an opportunity to work full time for them and potentially getting my work visa application lodged through them.
All my hard work and dedication finally paid off and I have found an employer who’s very impressed with my work and happy to sponsor me.
Unfortunately, my nomination for the work Visa took longer than expected and only came through on Saturday last week.
As you are aware of my hearing date on Wednesday, I unfortunately am very short on time to lodge to utilise that nomination and lodge the relevant Visa application.
Therefore, I am writing to request for an adjournment of eight weeks please.
This will allow me ample time to lodge the work Visa required using the nomination that I have received on Saturday.
I have attached several supporting documents to support my claim for this extension. I would be highly grateful if this can be granted please as this will help me stay in Australia as a permanent resident and help me provide a good life for my family.
I have genuinely worked really hard on developing my skills and career as Cook to become Chef one day and I plead to you to kindly offer me this 8 weeks extension to assist me during the most difficult time of my life.
I’d be forever grateful for your kindness
My current employer have also written a letter of support to your attention.
Thank you
Attached to that email were documents that included copies of correspondence from the Department approving a nomination application in relation to the applicant for a Temporary Skill Shortage (Subclass 482) visa (Exhibit 1).
Later that day (also on 31 October 2022), Ms Moxey responded to the applicant’s email and opposed the adjournment request, as follows:
We refer to the applicant’s below request for an adjournment. We note that the applicant previously requested an adjournment of three months on 27 July 2022 which was granted. The application has been on foot since 3 January 2018.
For those reasons, the first respondent Minister opposes the applicant’s second request for an adjournment and will make submissions expanding on the above points at the hearing on Wednesday 2 November 2022.
The response from Ms Moxey was tendered and referenced as Exhibit 2.
The Court replied to the applicant as follows:
Chambers acknowledges receipt of the email correspondence and attachments below.
His Honour Judge Kendall has considered the correspondence is of the view that the matter should proceed to hearing as scheduled on 2 November 2022 at 1.30pm (AEDT) / 10.30am (AWST).
If the applicant wishes to make a formal application for an adjournment, he should do so and His Honour will hear that application on 2 November 2022. Any further issues in this regard can otherwise be discussed with the parties at the commencement of the hearing.
For the avoidance of any confusion, chambers confirms that the matter remains listed for hearing on 2 November 2022 at 1.30pm (AEDT) / 10.30am (AWST) and the parties should be ready to proceed accordingly.
The applicant did not file a formal application for an adjournment with the Court.
At the commencement of the hearing (on 2 November 2022), the applicant was asked if he still sought an adjournment. The applicant advised that he did.
The applicant’s adjournment “request” was denied for the reasons that follow.
The Court notes that, when determining whether or not an adjournment ought to be granted, the Court will take into account the following factors:
(a)the evidence in support of the adjournment request and the explanation for that request;
(b)the parties’ choices in the litigation to date and whether the parties will be able to adequately present their case if an adjournment were not granted, such that there is a “just resolution” of the proceeding;
(c)any prejudice to the respondent that cannot be mitigated by costs; and
(d)modern principles of case management (including the avoidance of undue delay) and wastage of public resources;
(see: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44]).
The applicant’s reason for requesting that the matter be adjourned were that he had recently obtained a new nomination with a new sponsor and, in the circumstances, he needed “more time”.
While the Court is sympathetic to the applicant’s particular circumstances, the Court notes that the new nomination cannot assist the applicant in relation to the matter before this Court. In this regard, the Court references the recent decision of Federal Court in James v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1202 (“James”). In that decision, the Court upheld conclusions of the primary judge that an approved nomination for a subclass 482 visa cannot constitute an approved nomination in relation to an application for a subclass 457 visa. Specifically, Justice Bromberg held that s 140GB(1)(a) of the Act requires an applicant to be nominated with respect to a specified visa of a prescribed kind (at [26], [29]).
In the present matter, as in James, the applicant’s newly approved nomination application (for a subclass 482 visa) cannot assist him in relation to the refusal of his subclass 457 visa application.
In the circumstances, the Court determined that granting the adjournment would not be in the interests of the administration of justice and considered it appropriate to proceed with the hearing.
Substantive Hearing
Noting that the applicant was unrepresented (and noting the remarks of the Federal Court in the decision of Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]), the Court gave the applicant an opportunity to explain orally what he thought the Tribunal “did wrong” in relation to his substantive application.
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker ignores relevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant again stated that he did not have a nomination when the matter came before the Tribunal but that he “has worked really hard over the past three years” and has “now secured a nomination for another visa”. Further, he stressed that he “has spent so much time away from his wife and his family” (who are now back in India) and simply “needs more time to get his life sorted”.
As outlined above, the approval of a new nomination application (in relation to a subclass 482 visa) does not assist with the applicant with the review of the refusal of his subclass 457 visa (the subject of the present case). The applicant’s oral submissions otherwise also fail to address or identify any jurisdictional error on the part of the Tribunal.
Consideration
Grounds of review
Ground 1
Ground 1 states:
l.The Administrative Appeals Tribunal made an error in the decision as it has the jurisdiction on this matter under s.338(2)(d)(i) and (iii) of The Migration Regulations 1994.
Here, the applicant alleges that the Tribunal made an error when determining that it did not have jurisdiction to hear this matter.
In this regard, the Court notes (as outlined by this Court in Cui v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 96) that in order for the Tribunal’s jurisdiction to be enlivened in relation to the review of a delegate’s decision of this sort, that decision must be a “Part 5-reviewable decision” within the meaning of s 338 of the Act.
At the time the applicant applied to the Tribunal for review of the delegate’s decision (being on 10 November 2017), s 338 of the Act relevantly provided:
338 Definition of Part 5‑reviewable decision
…
(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:
…
(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 refuse to grant the visa is made; or
(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.
…
Regulation 4.02(1A) of the Regulations, as at 10 November 2017, prescribed that the applicant’s visa (being a subclass 457 visa) was one which was subject to s 338(2)(d) of the Act.
At the time the applicant applied to the Tribunal for review of the delegate’s decision (being on 10 November 2017), reg 4.02 of the Regulations relevantly provided:
4.02 Part 5‑reviewable decisions and who may apply for review
(1A) For paragraph 338(2)(d) of the Act, the following visas are prescribed:
(a) a Subclass 401 (Temporary Work (Long Stay Activity)) visa;
(aa) a Subclass 402 (Training and Research) visa;
(b) a Subclass 407 (Training) visa;
(c) a Subclass 416 (Special Program) visa;
(e) a Subclass 420 (Entertainment) visa;
(k) a Subclass 457 (Temporary Work (Skilled)) visa;
(ka) a Subclass 482 (Temporary Skill Shortage) visa;
(l) a Subclass 488 (Superyacht Crew) visa;
(la)a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa;
(m) a Subclass 870 (Sponsored Parent (Temporary)) visa.
(4)For subsection 338(9) of the Act, each of the following decisions is a Part 5‑reviewable decision:
(a)a decision under subsection 140E(1) or (1A) of the Act to refuse a person’s application for approval as a work sponsor or family sponsor in relation to a class of sponsor;
(d)a decision under subsection 140GB(2) of the Act to refuse to approve a nomination;
…
In Ahmad, the Full Court of the Federal Court considered this issue and the meaning of the words “sponsored by an approved sponsor” in s 338(2)(d) of the Act. Relevantly, the Full Court determined as follows:
95In our opinion, the starting point must be whether, within the meaning of s 338(2)(d), it is a criterion for the grant of the visa that the non-citizen, Mr Ahmad, “is sponsored by an approved sponsor”.
96It was common ground between the parties that being “sponsored by an approved sponsor” is such a criterion. Clause 457.223(1) of Sch 2 to the Migration Regulations confirms that this is so, as a criterion to be satisfied at the time of decision. It may be noted that the requirement relates, in part, to a nomination of an occupation in relation to the applicant approved under s 140GB and that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved: cl 457.223(4)(a)(i) and (ii).
97.The next question is the meaning of the words “sponsored by an approved sponsor” in s 338(2)(d)(i).
98.The definition of the word “sponsored” in s 337, which applies to s 338 (see [34] above), picks up the meaning of the word “sponsored” in the regulations. Regulation 4.02(1AA) states that for s 337, sponsored includes being identified in a nomination under s 140GB. It follows that “sponsored by an approved sponsor” in s 338(2)(d)(i) includes not only “approved sponsor” as defined in s 5(1) of the Migration Act (relevantly, a person who has been approved by the Minister under s 140E) but also includes, by virtue of reg 4.02(1AA), being identified in a nomination under s 140GB.
In relation to the Tribunal’s jurisdiction under s 338(2)(d)(ii) of the Act, the Full Court in Ahmad further held:
99.Turning to s 338(2)(d)(ii), the expression “decision not to approve the sponsor” includes both the approval of the sponsor under s 140E and the approval of the nomination under s 140GB.
100.On the facts of the present case, an application for review of the decision not to approve the sponsor had been made and was pending at the time the application to review the decision to refuse to grant the visa to Mr Ahmad was made.
101. It follows that the Tribunal had jurisdiction.
In relation to the present matter, in order for the Tribunal to have jurisdiction, it required that (at the time of application to the Tribunal) either:
(a)the applicant was the subject of a nomination that was approved or pending: Ahmad; or
(b)there was a pending application for review before the Tribunal in relation to the decision not to approve the nomination.
Here, the applicant was not the subject of an approved nomination. The nomination submitted by the sponsor in relation to the applicant was refused on 21 September 2017 (Cunynghame affidavit 4-11).
Further, on the applicant’s own evidence, the sponsor did not “appeal” or seek review of that decision by the Tribunal because the sponsor was no longer operating at the time the nomination was refused (CB 57).
At the time the applicant’s review application was filed with the Tribunal, the applicant was not the subject of an approved nomination and there was no pending review of the nomination decision.
On that basis, the delegate’s decision was not a “Part 5-reviewable decision” as specified in s 338(d)(i) or (ii) of the Act and the Tribunal was correct to find that it did not have jurisdiction in relation to the applicant’s review application.
No error arises in relation to ground 1.
Ground 2
Ground 2 provides:
2.The inability of the Administrative Appeals Tribunal to not grant natural justice to the applicant in relation to the matter to grant some time to be able to lodge a fresh nomination application by an approved sponsor.
Insofar as the applicant queries whether he was denied common law natural justice guarantees, the Court references its decision Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 640 (“Singh”) (citing WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108 (“WZAVO”)) and again emphasises that the common law requires the Tribunal to bring to an applicant’s attention any critical issue upon which the Tribunal’s decision is likely to turn. Further, the Tribunal is also required to provide an applicant with an opportunity to comment on or provide any response to such an issue: Kioa v West (1985) 159 CLR 550 at 584 and 587 and SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35]-[36] per Bennett J.
In the circumstances of this matter, the Court notes that:
(a)the applicant was sent a letter on 14 November 2017 (by way of email sent to his nominated email address) inviting him to comment on the validity of his application lodged with the Tribunal (CB 55-56);
(b)the applicant provided the Tribunal with a response to that invitation (by return email) on 28 November 2017, providing an explanation as to why he was of the view that the Tribunal should proceed with reviewing his application (CB 57-58); and
(c)the Tribunal expressly considered the applicant’s response in its written reasons for decision (at [11], CB 64).
Here, as was the case in Singh and WZAVO, it cannot be said that the applicant was denied the right to present his case.
To the extent that the applicant suggests that the Tribunal should have invited him to attend a hearing before it (as required by s 360(1) of the Act, the Court disagrees for the reasons that follow.
As this Court has previously outlined (in Singh and WZAVO), the issue of whether or not the Tribunal is under any obligation to invite an applicant to attend a hearing in matters such as this (where the Tribunal has correctly determined that it has no jurisdiction to review the matter) has been considered by the Federal Court in Benissa v Minister for Immigration and Border Protection [2016] FCA 76 (“Benissa”).
In Benissa, the Federal Court relevantly determined as follows:
28.In SZEYK v Minister for Immigration [2008] FCA 1940, the applicant sought leave to appeal from an interlocutory decision of the Federal Magistrates Court where the Court had dismissed an application for judicial review of the Tribunal’s decision that it did not have jurisdiction. Justice Bennett concluded that the Tribunal had correctly found that it did not have jurisdiction. The applicant submitted that he was denied procedural fairness because the Tribunal had not given him an opportunity to make submissions concerning the validity of his application. Justice Bennett considered s 425(1) of the Migration Act. That section provided, in the same terms as s 460(1) (upon which Mr Benissa relies), that the Tribunal “must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
29.Justice Bennett dismissed the applicant’s ground for leave to appeal based upon procedural unfairness for two reasons. The first was that s 425 did not apply because in the absence of jurisdiction for the Tribunal to review, there was no “decision under review” ([34]).
30.The second reason that her Honour gave for dismissing the appeal was that there was nothing that the applicant could have said that could have led to any different decision by the Federal Magistrates Court nor was there anything that the applicant said on the application for leave that cast doubt upon the correctness of the Tribunal’s conclusion. As her Honour explained, no practical injustice flowed from any failure to afford the applicant a hearing on the question of jurisdiction. This echoes the discussion by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1, 14 [38]. An opportunity to address the Tribunal on the question of jurisdiction would have been a “hollow opportunity” ([39]).
31.The decision of Bennett J was relied upon by Flick J in Cheng v Minister for Immigration and Citizenship [2011] FCA 1290; (2011) 198 FCR 559. In that case the applicant had failed to file an application for review within the required time and there was no power vested in the Tribunal to extend the time within which an application for review could be made. His Honour held that the “utility of extending any opportunity to be heard” was “elusive” and may well have been (using the phrase of Bennett J) “a hollow opportunity”. There would have been no practical injustice arising from a denial of a hearing concerning jurisdiction (567 [29]).
32.In this case I also conclude that there was no obligation arising from requirements of procedural fairness in s 360(1) of the Migration Act for the Tribunal to hear from the applicant concerning whether it had jurisdiction. This is for four reasons.
33.First, the conclusion reached by Bennett J in SZEYK concerning the construction of s 425 is not plainly wrong. To the contrary, I consider that it is plainly right.
34.Secondly, and further supporting the reasoning of Bennett J, a “decision under review” within the meaning of s 360(1) must import authority to review. This means that the Tribunal must have jurisdiction. That conclusion is supported by the approach of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, 506 [77] that a decision made without jurisdiction (or by jurisdictional error) is not a “decision…made under [the Act]”.
35.Thirdly, the requirement in s 360(1) that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and to present arguments is also a strong indication that the subsection is concerned only with circumstances in which the Tribunal has jurisdiction so that the decision of the delegate of the Minister is under review: it would usually be nonsense to require the applicant to give evidence before the Tribunal in a case where the Tribunal was considering whether it had jurisdiction to hear the matter.
36.Fourthly, the obligation in s 360 requires the Tribunal’s invitation to the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. Submissions concerning whether the Tribunal has jurisdiction are not matters that “relate to” the issues arising from the decision by the delegate of the Minister which would be under review if the Tribunal had jurisdiction.
Here, as in Benissa, the issues arising related to whether the Tribunal had jurisdiction in the matter and not in relation to the decision under review itself (that is, whether or not the applicant should have been granted the visa). In the circumstances, the Court is satisfied that the applicant suffered no practical injustice arising from the Tribunal denying him a hearing concerning jurisdiction. The Court is also satisfied that there was no obligation arising from the requirements of procedural fairness in s 360(1) of the Act for the Tribunal to hear from the applicant at a hearing concerning whether it had jurisdiction.
No error arises in relation to ground 2.
Futility
The Court accepts the Minister’s submission (at [22] in written submissions filed in this Court on 6 July 2022) that, even if an error did arise in the Tribunal’s approach and its written reasons, any remittal to the Tribunal would be futile. This is because the applicant cannot now be granted the visa that he seeks.
In this regard, the Court notes that on 18 March 2018, the Regulations were amended by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth). Unfortunately for the applicant, that amending legislation removed the subclass 457 from the list of skilled visas. As such, even if this Court were to remit the applicant’s matter to the Tribunal, there is nothing the Tribunal could do to assist the applicant. This is because the visa that he seeks is no longer available to him and he cannot obtain a new nomination for the purposes of his current application.
Further, as outlined above, s 140GB(1)(a) of the Act requires an applicant to be nominated with respect to a specified visa of a prescribed kind (James at [26], [29]). On that basis, the applicant’s newly approved nomination (for a subclass 482 visa) cannot constitute an approved nomination in relation to his application for the subclass 457 visa which was refused (and which is the subject of this proceeding).
On that basis, any remittal would be futile.
Ministerial intervention
The applicant applied for the relevant visa on the basis of a nomination application made by a sponsor. Unfortunately, that sponsor became insolvent. This resulted in the nomination application (and, consequently, the visa application) being refused.
The applicant had difficulties finding a new sponsor but was ultimately able to do so (as evidenced by Exhibit 1). Whilst the applicant is aware that the visa that he applied for no longer exists, he is of the view that he would be eligible for the subclass 482 visa (for which he now has an approved nomination).
While the Court is not able to assist the applicant (as no jurisdictional error arises in this matter), the Court draws the applicant’s attention to the Minister’s discretionary powers. Where, as is the case here, the Tribunal has affirmed a decision refusing the applicant’s visa, and that decision has been upheld on review, the Minister has a statutory discretion pursuant to s 351(1) of the Act to substitute a more favourable decision.
Conclusion
The application for judicial review filed by the applicant on 3 January 2018 (and amended on 2 November 2022) fails to identify any jurisdictional error. The Court is otherwise unable to identify any error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 15 November 2022
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