Ramjali v Minister for Immigration

[2016] FCCA 2296

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAMJALI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2296

Catchwords:
MIGRATION – Application to review decision of former Migration Review Tribunal that it had no jurisdiction – application dismissed. 

Legislation:

Migration Act 1958 (Cth), ss.338, 347(2), 348

Migration Regulations 1994 (Cth), reg.4.02, cl.457.223

Cases cited:

Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365;

[2015] FCAFC 182

Kandel v Minister for Border Protection & Anor [2015] FCCA

SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940

Applicant: RAJ KUMAR RAMJALI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 289 of 2015

Judgment of: Judge Barnes

Hearing dates:

10 August 2016

22 August 2016

Delivered at: Sydney

Delivered on: 22 August 2016

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: DLA Piper

ORDERS

1. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 289 of 2015

RAJ KUMAR RAMJALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal, dated 15 January 2015.  The Tribunal found that it did not have jurisdiction in relation to the Applicant’s application for review.

2. The background to these proceedings is that the Applicant, Mr Ramjali, applied for a Subclass 457 Business Entry (Class VC) visa on 29 June 2012.  In his visa application he indicated that his sponsoring employer was Zac Formwork Pty Ltd (referred to for convenience as Zac).  He left blank the spaces for answers to questions about whether his employer was an approved standard business sponsor and whether a nomination application had been approved.  While he provided some evidence in support of his application, it appears that he did not provide evidence to the delegate that Zac was an approved business sponsor or that there was an approved nomination by Zac in respect of his intended position.

3. The delegate wrote to the Applicant c/- his authorised recipient by email dated 3 September 2012 (as referred to in a file note of that date) putting the Applicant on notice that one of the criteria for the grant of a Subclass 457 visa was an approved nomination and that his prospective employer (Zac) did not have an approved nomination for him as at 3 September 2012 so that as a result his visa application was unlikely to be successful.  He was advised that if he wanted more information regarding why this was so, he should contact the prospective employer.  He was also advised of the impact on his visa application of the absence of an approved nomination and given an opportunity to provide comment, including evidence that he was the subject of an approved nomination. 

4. By decision dated 9 November 2012 the delegate refused the application finding that Subclass 456 was not applicable and that the Applicant did not meet the criterion for a Subclass 457 visa in cl.457.223(4)(a) in Schedule 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations) which, as it stood at the relevant time, relevantly required an approved nomination of an occupation in relation to the Applicant by a person who was a standard business sponsor at the time the nomination was approved.

5. The delegate noted that on 28 August 2012 the Department had decided to refuse the application for standard business sponsorship approval lodged by the Applicant’s prospective employer Zac and found that as Zac was not an approved standard business sponsor, there was no approved nomination application as required under cl.457.223(4)(a) in Schedule 2 to the Migration Regulations.

6. It is apparent from material in the Courtbook that subsequently the Department formed the view that it had failed to notify the Applicant correctly of the delegate’s decision because the notification letter had not been attached to the email sending the decision to the Applicant and because the notification should have been sent to the Applicant’s authorised recipient, Mr Laba Sarkis.  The Applicant was re-notified (through his authorised recipient) of the decision of 9 November 2012 on 6 November 2014.  The 2014 date was also treated as the operative date from which the time for seeking review commenced.  The Applicant sought review by the Tribunal on 27 November 2014.

7. A Tribunal officer wrote to the Applicant c/- his authorised recipient Mr Laba Sarkis on 3 December 2014 inviting his comment on the validity of the application for review.  The Tribunal officer pointed out that for there to be a valid application for review, at the time of lodgement of the application for review the Applicant’s sponsor either had to be an approved sponsor or to have made a valid application for review of a decision not to approve sponsorship which was pending.  The Tribunal officer expressed the preliminary view that the review application was not valid, as it appeared that when it was lodged the Applicant’s sponsor was not approved and had not made a valid application to the Tribunal for review of a sponsorship decision.  The Applicant was given the opportunity to make comments on whether there was a valid application by 2 January 2015.

8. The Applicant wrote to the Tribunal by letter dated 26 December 2014 indicating that he understood that his sponsor was not approved and that he now understood “he” (which may be intended to be a reference to Zac) had “made an application for review with the Tribunal before”.  He claimed that he understood that Zac may still have an application before the Tribunal, but “anyway” claimed that he had been nominated by a new sponsor, Green Formwork Group Pty Ltd (Green Formwork).  He attached a copy of an employment contract relating to proposed employment and claimed that the company had “already completed the nomination and sponsorship applications”.  He also submitted some other information in relation to Green Formwork.  He ended by claiming that he had a genuine sponsor and that he had not been notified properly about the previous application for sponsorship.

9. In its reasons for decision the Tribunal recorded that its jurisdiction to review a decision arose under s.348 of the Migration Act 1958 (Cth) (the Act) if an application was properly made under s.347 for review of an MRT-reviewable decision. Section 338 of the Act and reg.4.02 of the Migration Regulations set out the range of decisions that were MRT-reviewable. Relevantly, the Tribunal observed that a decision to refuse an onshore Subclass 457 visa application for which there was a criterion that the applicant was sponsored by an approved sponsor was reviewable when either the applicant was sponsored by an approved sponsor at the time of the review application or an application for review of a decision not to approve the sponsor had been made and was pending at the time of the review application (see s.338(2)(d) of the Act).

10. The Tribunal also referred to the fact that “sponsored” included being identified in a nomination under s.140GB of the Act and that, in that context, for an application to be valid, there must have been at the time of the review application a nomination of an occupation approved and in force or an application for review of a decision to refuse the nomination pending.

11. The Tribunal found that when the application for review was received by it, “the sponsor” was not approved as a standard business sponsor.  It is clear that the reference to “the sponsor” was a reference to Zac, as the Tribunal continued:

    The sponsor had sought review of the decision to refuse approval on 24 September 2012.  However, this decision was affirmed by the Tribunal, differently constituted, on 5 March 2014.

12. The Tribunal addressed the Applicant’s submission in response to the letter of 3 December 2014, referring to his acknowledgement that he now understood that the sponsor was not approved at the time of the application for review, although he understood that the sponsor had previously made an application for review by the Tribunal.  It also recorded his claim that he wanted the Tribunal to consider his application on the basis of being nominated by a new sponsor, Green Formwork.

13. The Tribunal found that it was not in dispute that “there was no approved sponsorship and thus no approved nomination, in force at the relevant time and no application for review of a sponsorship or nomination refusal decision pending before the Tribunal”.  Read in context, this was clearly a reference to the time of the review application.  In these circumstances the Tribunal was of the view that the decision to refuse the visa application was not an MRT-reviewable decision and hence that it did not have jurisdiction.

14. The Applicant sought review of the Tribunal decision by application filed in this court on 5 February 2015.  There are three grounds in the application.  The Applicant did not file written submissions in accordance with the directions that were made on the first return date, but at the hearing handed up written submissions which the Minister’s solicitors had the opportunity to address and I have considered.

15. When the matter was first before the court for hearing, I raised issues with the solicitor for the First Respondent, including whether there was any evidence of an approved sponsorship in force at the time the Applicant’s application to the Tribunal in relation to Green Formwork or any nomination of the Applicant by Green Formwork, having regard to screenshots from departmental records in the Courtbook. 

16. It is clear that the Tribunal had accessed records from the Department’s computer database, the Integrated Client Services Environment (ICSE)  in relation to Zac and also Green Formwork.  A screenshot of the information accessed in relation to Zac showed that its standard business sponsorship application was refused by the Department on 28 August 2012 and that this refusal was affirmed by the Tribunal on 6 March 2014.

17. One of the screenshots in relation to Green Formwork stated that there was a nomination approved on 20 November 2014.  This raised an issue as to whether this nomination related to Mr Ramjali (as he appeared to claim in his letter to the Tribunal of 26 December 2014), albeit that another screenshot indicated that there was a nomination by Green Formwork on 20 November 2014 which related to a person other than Mr Ramjali.

18. The hearing was adjourned.  The First Respondent filed supplementary written submissions and an affidavit of a solicitor, Joel Eitan Palte.  The annexures to the affidavit affirmed by Mr Palte on 12 August 2016 include more recently obtained screenshots from the ICSE database.  

19. The solicitor for the First Respondent addressed the issue of whether the Applicant was identified in a nomination application which had been lodged by Green Formwork before the Applicant’s review application and also the Applicant’s assertion that he should have been notified about the refusal of Zac’s sponsorship application.  It is convenient to address those issues before turning to the grounds in the application and the Applicant’s other written submissions.

20. As the solicitor for the First Respondent pointed out, the folio numbering of the pages from the Tribunal file reproduced in the Courtbook (indicated by the numbers at the top right-hand corner of the pages) indicate that the documents provided by the Applicant by letter of 26 December 2014 were numbered folios 36 to 43.  An officer of the Tribunal accessed departmental records from the ICSE database which bear folio numbers following those folio numbers.  This would appear to indicate that the ICSE records were accessed after the letter of 26 December 2014 was received by the Tribunal and included records up to that point of time.  Relevantly, this would include the time the review application was lodged with the Tribunal.  It is clear from screenshots provided to Mr Palte on 8 July 2016 that there has been no relevant change in that material. 

21. In any event, whenever the ICSE material was accessed by the Tribunal, it is clear that the Green Formwork nomination approved on 20 November 2014 revealed in that material was not in relation to the Applicant, but rather related to another named person.  These records provide no evidence that the Applicant was the subject of an approved nomination by Green Formwork, as distinct from indicating that there was an approved nomination by Green Formwork that related to a person other than the Applicant.   

22. There is no evidence that any nomination was lodged by Green Formwork in relation to the Applicant, let alone before his application for review by the Tribunal. 

23. While the extracts from the ICSE records now before the court reveal that the Applicant was at one point of time a nominee, that was as the subject of the nomination application lodged by Zac which was refused by the Department on 28 August 2012.  That refusal was affirmed by the Tribunal in March 2014.  These records do not indicate any other nomination in respect of the Applicant at the time of his review application or, indeed, up to the time these proceedings were commenced in February 2015.

24. Further, while there was some possible ambiguity in the Applicant’s letter to the Tribunal of 26 December 2014, there is no evidence before the court from the Applicant or referred to in the grounds in the application or in his written submissions that is in any way contrary to what the records before the court indicate.  He has not claimed that he was sponsored by or the subject of a nomination application by Green Formwork at the time of his application to the Tribunal.  

25. There is nothing in the material before the court to indicate that the Applicant was sponsored (or identified in a nomination) by an approved sponsor at the time of the review application or that there was at that time any pending Tribunal review in relation to any such sponsorship or nomination application. 

26. I also note that while it is not, strictly speaking, germane to the issues presently before the court, the First Respondent put evidence before the court relating to the Applicant’s previous sponsor, Zac, which confirmed that Zac’s application to become a standard business sponsor was refused on 28 August 2012.  Under reg.2.62 of the Migration Regulations, the Minister’s obligation in such circumstances was to notify Zac of the refusal of its application to become a standard business sponsor.

27. Insofar as the Applicant claimed that the Department was also required to notify him of the refusal of Zac’s application to become a standard business sponsor, it is the case that s.57 of the Act requires the Minister to give an applicant information that would be the reason or part of the reason for refusing to grant a visa. Relevantly, there is now evidence before the court (in an annexure to Mr Palte’s affidavit) which makes it clear that by the email of 3 September 2012 referred to at [3] above the Department did notify the Applicant that he was not the subject of an approved nomination.

28. These issues are not such as to support any claims by the Applicant or arising in these proceedings, whether in relation to the jurisdiction of the Tribunal or otherwise.

29. Turning to the grounds that the Applicant relies on, the first ground is a contention that: 

    The Tribunal failed to notify [him] properly of [his] refusal of [his]sponsor’s nomination as I now understand that my sponsor was not approved but my sponsor and I were not notified of the sponsorship refusal, if any, and under the current situation the Tribunal failed to wait for a new sponsorship as per the evidence submitted.

30. It may be that the Applicant intended to assert that the (differently constituted) Tribunal that considered Zac’s review application should have notified him of the fact that it affirmed the delegate’s decision.  However that Tribunal’s obligation was to notify Zac, as the review applicant, not to notify the visa applicant who was intending to rely on Zac’s nomination.

31. The Applicant’s review application was lodged on 27 November 2014.  This was after the time of the decision by the differently constituted Tribunal to affirm the decision in relation to Zac’s application.  In other words, Mr Ramjali’s application for review was not made while a Tribunal review of a sponsorship/nomination application by Zac was pending. 

32. Moreover, the issue about the validity of the Applicant’s review application in the absence of a sponsorship was put to him in the letter from the present Tribunal of 3 December 2014.  Insofar as there is some assertion of a denial of common law procedural fairness, that is not made out.  Nor has it been established that the Tribunal failed to comply with any statutory obligations.  By its letter of 3 December 2014 the Tribunal gave the Applicant the opportunity to deal with significant adverse matters relevant to the issue of its jurisdiction (see SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [34]-[38] per Bennett J).

33. It was also contended in ground 1 that the Tribunal erred in failing to wait for a new sponsorship “as per the evidence submitted”.  This appears to be a reference to the Applicant’s letter to the Tribunal of 26 December 2014.  However this evidence is not such as to establish, either on its own or taken in conjunction with all the other material before the court, that the Applicant was sponsored/nominated by an approved sponsor at the time of the review application or that there was a pending review of a sponsorship/nomination refusal before the Tribunal at that time.  

34. The Applicant’s contention that the Tribunal should have waited for a new sponsorship application to be lodged and approved is contrary to the provisions of the Act in relation to the jurisdiction of the Tribunal, in particular s.338 of the Act as it stood at the relevant time. As indicated and as set out by the Tribunal in its decision, s.338 relevantly confined an MRT-reviewable decision (in this context) to circumstances in which the visa applicant was sponsored by an approved sponsor at the time the visa applicant’s review application was made (s.338(2)(d)(i)) or to circumstances where an application for review of a decision not to approve the sponsor was pending at the time the visa applicant’s review application was made (in this case, as at 27 November 2014) (s.338(2)(d)(ii)).  A new sponsorship application made after 27 November 2014 would not have enlivened the Tribunal’s jurisdiction in relation to Mr Ramjali’s visa application.  The Tribunal did not “err” in failing to wait for a new sponsorship application.  

35. It is apparent from the evidence before the court that Zac was not an approved sponsor at the time the Applicant’s review application was made and nor was its review application pending at that time. Therefore the Applicant could not satisfy s.338(2)(d)(i) or (ii) of the Act by relying on his claimed sponsorship by Zac. When read in light of this material, the Tribunal’s finding that it was not in dispute that there was no approved sponsorship or nomination in force at the relevant time correctly reflected the facts.

36. There is no evidence that Green Formwork had nominated the Applicant at the time of the application for review.  Insofar as there was any ambiguity in the Applicant’s letter to the Tribunal of 26 December 2014, such ambiguity has been clarified by the First Respondent in supplementary submissions and the affidavit of Mr Palte.  As noted, the Applicant did not provide any evidence that he was the subject of sponsorship or an approved nomination or of a pending review application in that respect by Green Formwork, either at the time of his review application or, indeed, thereafter.  Ground 1 is not made out.

1. Ground 2 is that the Department failed to notify the Applicant “properly” of his previous refusal and “this can be the case with the Tribunal failing to notify my previous sponsor of the refusal”.  As indicated, the Department acknowledged that it had not properly notified the Applicant of its decision, but on discovering the error acted to ensure that he was re-notified and that the time to apply for review commenced from the re-notification date. 

2. This sequence of events does not affect the Tribunal’s jurisdiction.  It does not establish any error in its decision.  Nor does it in any way support any contention that the Tribunal had jurisdiction. 

3. Insofar as the Applicant complained that it could be that the Tribunal failed to notify his previous sponsor, this appears to be a reference to what may or may not have occurred when the differently constituted Tribunal affirmed the decision not to approve Zac’s sponsorship application.  Whatever happened on that occasion was a matter between the differently constituted Tribunal and Zac.  Zac is not a party to the present proceedings.  The Applicant’s speculation about whether or not Zac was notified of the earlier Tribunal decision is not relevant in relation to the present application.  It is not such as to indicate any error on the part of the Tribunal or that the Tribunal in some way had jurisdiction in relation to the visa application decision.  Ground 2 is not made out.

4. Finally in Ground 3 the Applicant contended that he “now” had a sponsor who needed his services.  He asked the court to deal with his request and remit the case to the Tribunal.  Insofar as the Applicant asks the court to consider his visa application, he seeks impermissible merits review.  It has not been established that there was any error in the Tribunal’s decision that it did not have jurisdiction.

5. The Applicant has not provided any evidence that at the time of the review application he was or had been sponsored by any entity other than Zac. Zac’s sponsorship application had been refused and that decision affirmed by the Tribunal. Even if the Applicant could establish that he was sponsored by an approved sponsor at the present time, that would not establish any error in the Tribunal decision or that it had jurisdiction. As indicated, its jurisdiction depended on whether the requirements of s.338 of the Act were met, in particular, whether a sponsorship or a pending review of a sponsorship refusal existed at the time of the review application. This ground is not made out.

6. In addressing these grounds I have considered the Applicant’s written submissions.  I have also considered them separately.  The submissions recount the Tribunal findings and suggest that the sponsorship application (presumably of Zac) must be “lost” because it is not in the Courtbook.  That is speculation on the part of the Applicant.  These proceedings relate not to Zac’s sponsorship application (or the review application in relation to the sponsorship) but rather to Mr Ramjali’s visa application.  

7. The Applicant complained that he was not aware that a decision had been made not to approve Zac, as no refusal was received and no documents were in the Courtbook.  It is the case that the Courtbook does not include the whole of the Departmental file or the files in relation to Zac’s applications.  There is, however, evidence before the court that on 3 September 2012 the Department wrote to the Applicant by email to his authorised recipient, Mr Laba Sarkis, advising him of the absence of an approved nomination as at that time.

8. Insofar as the Applicant intended to take issue with the separate decision by the differently constituted Tribunal to affirm the refusal decision in relation to Zac, that is not a matter for the present proceedings.  The Applicant’s claimed lack of awareness about the earlier Tribunal decision in relation to Zac’s application is not such as to establish error in the current Tribunal decision about its lack of jurisdiction in relation to review of the visa application decision.

9. If this complaint is intended to be in relation to Green Formwork, there is no evidence of any nomination of the Applicant by Green Formwork at any time. 

10. The Applicant’s submissions also state that the Applicant understands that the Tribunal had evidence that Green Formwork was an approved business sponsor.  It is the case that one of the screenshots in the material before the Tribunal indicated a nomination approval of 20 November 2014 in the name of Green Formwork (which suggests that it was an approved sponsor).  However the other material, including the more up to date information annexed to Mr Palte’s affidavit, makes it clear that such nomination was in relation to another person.  There is no evidence of any nomination in relation to Mr Ramjali by Green Formwork at the time of his application to the Tribunal.

11. The Applicant contended that the Tribunal failed to “invite” him to lodge a nomination and that such failure was a denial of natural justice and fairness.  The Tribunal’s obligation was to determine whether it had jurisdiction to review the refusal of the visa application.  That depended on circumstances in existence at the time of the review application.  Those circumstances were not satisfied.  The Tribunal did not have jurisdiction.  It could not go on to invite the Applicant to lodge a nomination.

12. The Applicant addressed the claim that the Department failed to notify him properly by complaining that instead of doing so, the Tribunal made a decision that it did not have jurisdiction.  The issue of the Department notifying the Applicant has been addressed above.  Moreover the Tribunal notified the Applicant by letter of 3 December 2014 that when he lodged his review application his sponsor was not approved and there was not a valid application to the Tribunal for review of a sponsorship decision at that time (albeit expressed in terms that did not refer to the finalised review application previously lodged by Zac).  The Applicant had the opportunity to respond to that information.

13. These issues are not indicative of error or that the Tribunal had jurisdiction. 

14. A complaint was also made that the Tribunal had referred to Zac as not being approved as a standard business sponsor, but that it had “failed to provide evidence and reasons”.  This appears to take issue with the Tribunal decision in relation to Zac’s sponsorship application.  It does not establish any error on the part of the present Tribunal in its finding as to the absence of jurisdiction in relation to the review of the visa application decision.  The Tribunal was not required to address, or consider for itself, the merits of Zac’s earlier unsuccessful application or review application. 

15. The Applicant expressed concern as to why Zac was not approved and why Green Formwork could not sponsor him (even though it had nominated somebody else).  Such concerns are not indicative of any error or such that they can be the subject of the present proceedings.  Concern was reiterated about the absence of material in the Courtbook about why Zac’s sponsorship was not approved.  Again this took issue with the earlier decisions of the Department and the Tribunal in relation to Zac, rather than the decision in issue in these proceedings.

16. The Applicant also suggested that as the Department had “wrongly notified” him of the decision, he was not aware of the sponsorship refusal until he lodged his application for review on 27 November 2014.  That assertion is contrary to the letter of 3 September 2012 to the Applicant from the Department, a copy of which was annexed to Mr Palte’s affidavit.  Even if the Applicant was not initially aware of the fact that Zac’s sponsorship application had not been approved, he was properly notified by the Department of the absence of sponsorship when his visa application was under consideration. 

17. Further, the incorrect notification of the Department’s decision in relation to Mr Ramjali’s visa application did not disadvantage him, insofar as he was properly notified in 2014 and the time for seeking review recommenced in 2014.

18. The Applicant also complained that he did not have any evidence as to how and when his sponsor was notified.  It appears this may be a reference to the Department’s decision in relation to Zac.  The Applicant’s assumption that the Department may have failed to “properly” notify Zac about the refusal of its sponsorship or nomination application is contrary to the fact Zac sought review by the Tribunal.  

19. The Applicant’s reference to the Department acting “contrary to procedural fairness” appears to take issue with the sponsorship decision, not the application for the visa that was the subject of the Tribunal decision.  It does not relate to the issue of whether the Tribunal had jurisdiction in relation to Mr Ramjali’s review application.  As considered above, the Tribunal accorded the Applicant procedural fairness in its letter of 3 December 2014.

20. The issues raised by the Applicant in his written submissions are not such as to support the grounds relied on. Nor is reviewable error demonstrated on any other basis. The Tribunal was correct to find that it lacked jurisdiction (see ss.347(2) and 348 of the Act).

21. For the sake of completeness I mention one other issue addressed in the First Respondent’s submissions.  It concerns the relevance of the decision of the Full Court of the Federal Court in Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365; [2015] FCAFC 182. The Full Court noted the Minister’s prior acceptance that the Tribunal would have jurisdiction if an applicant was identified in a nomination under s.140GB of the Act which was yet to be determined at the time of the making of the application for review to the Tribunal (see Ahmad at [90]-[91] and Kandel v Minister for Border Protection & Anor [2015] FCCA, but see Ahmad at [107]-[112]). However the Full Court found that the notion of “sponsored by an approved sponsor” in s.338(2)(d)(i) of the Act included being identified in a nomination under s.140GB and that the “decision not to approve the sponsor” in s.338(2)(d)(ii) included the approval of the nomination under s.140GB of the Act so that the Tribunal had jurisdiction to review a visa refusal where there had been an adverse decision in relation to approval of the sponsor, including a s.140GB nomination, but a review was pending. In reaching that view the Court referred to relevant provisions of the Act and Rules in relation to the notions of sponsorship and nomination in accepting that the expression “decision not to approve the sponsor” included both approval of the sponsor and approval of a nomination application (see Ahmad at [95]-[105]).

22. However, Ahmad does not assist the Applicant.  As the First Respondent submitted, the facts in this case can be distinguished from those considered in Ahmad.  In this case there was no evidence before the Tribunal that the Applicant was, at the time of the review application (or, for that matter, thereafter) the subject of any nomination (or sponsorship) (cf Ahmad at [99]-[100]). There was evidence of the earlier sponsorship/nomination application by Zac, but Zac’s application for review by the Tribunal had been determined. It was not pending in the sense of having been refused, but the subject of a pending review application (cf Ahmad at [100] and [106]).

23. The Tribunal was correct in finding that it had no jurisdiction in these circumstances.  As none of the grounds relied on by the Applicant or arising on the material before the court has been made out, the application must be dismissed.

24. The Applicant has been unsuccessful.  It is appropriate that he meet the costs of the First Respondent.  In the circumstances of this case and having regard to the need for two hearings and additional material and submissions addressing the issues raised by the Applicant, I consider that the scale amount is appropriate and reasonable.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 5 September 2016