SHARMA v Minister for Immigration

[2020] FCCA 2136

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2136

Catchwords:
MIGRATION –Categories of visas – Specialist, executive and business visas – 457 visa – review of decisions – non-protection visa (Pt 5 -reviewable) decisions – reviewable decisions – not a Part 5-reviewable decision.

Legislation:

Migration Act 1958 (Cth), ss.140B, 140GB, 338(2)(a), 338(2)(b), 338(2)(c), s.338(2)(d)(i), s.338(2)(d)(ii), 338(2)(d)(iii), 338(2)(d)(iv), 411, 412
Migration Regulations 1994 (Cth), reg.2.75(2)(b), Sch.2 cll.457.223(4)(a), 457.223(4)(da)

First Applicant: NEETU SHARMA

Second Applicant: VISHAL SHARMA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 3969 of 2019

Judgment of: Judge Jarrett

Hearing date: 23 July 2020

Date of Last Submission: 23 July 2020

Delivered at: Brisbane

Delivered on: 4 August 2020

REPRESENTATION

The Applicants in person

Solicitors for the First Respondent: MinterEllison

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 14 November, 2019 be dismissed.

2. The applicants pay the first respondent’s costs fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 3969 of 2019

NEETU SHARMA

First Applicant

VISHAL SHARMA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By their application filed on 14 November, 2019 the applicants seek judicial review of a decision of the second respondent made on 18 October, 2019 whereby the second respondent determined that it did not have jurisdiction to review a decision made by a delegate of the first respondent on 27 April 2019, in which the delegate refused to grant the applicants Temporary Business Entry (Class UC) visas.

2. Despite having the opportunity to do so, the applicants have not filed any amended application which more fully sets out their case.  Further, despite being directed to do so, the applicants have not filed any written submissions in support of this application.

3. I have the benefit of written submissions from the first respondent.  The first respondent contends that the second respondent was correct to find that it did not have jurisdiction to review the delegate’s decision.

4. The applicants are citizens of India who applied for Temporary Work (Skilled) (subclass 457) visas on 9 February, 2016 on the basis that the first applicant had been nominated for the position of café or restaurant manager by her sponsor, SNMR Pty Ltd.   

5. On 9 December, 2016 a delegate of the first respondent refused to grant the applicants the visas for which they had applied. The delegate refused to grant the visas because the first applicant did not meet cl.457.223(4)(da) of Schedule 2 to the Migration Regulations 1994 (Cth). That subclause required the applicant to demonstrate that she had the skills, qualifications and employment background that the first respondent considered necessary to perform the tasks of the nominated occupation. The delegate was not satisfied that the first applicant demonstrated that she had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

6. The applicants sought review of the delegate’s decision before the second respondent. The review was successful and on 29 January, 2019 the second respondent remitted the application to the first respondent’s department for reconsideration, with a direction that the applicant satisfied cl.457.223(4)(da) of Schedule 2 to the Regulations.

7. On 26 March, 2019 and following the remittal, the department invited the applicant to comment on information relating to her application. Specifically, the department had identified that the applicant’s prospective employer, SNMR Pty Ltd, did not have an approved nomination for the applicant, as its approved nomination had ceased on 6 January, 2017.

8. On 27 April, 2019 another delegate of the first respondent again refused to grant the applicants the visas, this time on the basis that the first applicant did not meet cl.457.223(4)(a) of Schedule 2 to the Regulations because her approved employer nomination had ceased on 6 January, 2017 and the standard business sponsor’s agreement used for the purpose of her application had ceased on 6 July, 2017. The letter notifying the applicants of this decision explained that there was no right to seek merits review of this decision.

9. Nonetheless, on 29 April, 2019 the applicants made an application for review of the delegate’s decision to the second respondent.  On 3 May, 2019 the second respondent wrote to the applicants, via their authorised representative, advising that it had formed the view that the review application was invalid because, at the time of the delegate’s decision, the applicant was not identified in an approved nomination that had not ceased.  Further, there was no valid and pending application for review before the second respondent in relation to the decision of the delegate not to approve a sponsor’s nomination application.  The applicants were invited to comment on this information, in writing, by 17 May, 2019.

10. On 5 August, 2019 the second respondent wrote to the applicants, by their authorised representative, inviting them again to comment on the validity of the review application, by 19 August, 2019.

11. On 19 August, 2019 the applicant’s authorised representative provided a response to the second respondent.  The response acknowledged that the approved nomination had ceased on 6 January, 2017 but argued that the sponsor’s nomination of the applicant was valid as at the date of the first delegate’s decision, and that the first delegate should have made a decision to grant the 457 visas.

12. On 18 October, 2019 the second respondent found that it did not have jurisdiction in the matter. The reasons for decision published by the second respondent demonstrate that it identified that ss.338 and 412 of the Act set out the types of decisions that might be reviewed by the second respondent. The decision the subject of the application before it was not reviewable pursuant to s.412 of the Act. It was not a Part 7-reviewable decision as defined in s.411 of the Act. Subject to some exclusions which are not presently relevant, s.338(1) provides that a decision is a Part 5-reviewable decision if s. 338 so provides. Relevantly, s.338(2) provides:

    (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)  if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

    (i)  the non‑citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or

    (ii)  a review of a decision under section 140E not to approve the sponsor of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or

    (iii)  a review of a decision under section 140GB not to approve the nomination of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or

    (iv)  except if it is a criterion for the grant of the visa that the non‑citizen is identified in an approved nomination that has not ceased under the regulations—the non‑citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.

13. No issue arose in relation to the matters prescribed by ss.338(2)(a), (b) or (c). However, the type of visa for which the applicant had applied was the type of visa prescribed for the purposes of s.338(2)(d) and so that subsection was engaged. The delegate’s decision was only reviewable if one of the subparts of s.338(2)(d) could be satisfied. However, none of them could be satisfied here because there was no approved nomination that had not ceased under the regulations, there was no review of a decision under section s.140B nor s.140GB of the Act pending and there was no sponsorship by an approved sponsor of the either of the applicants.

14. The second respondent had regard to written submissions from the applicant’s representative that the applicant’s visa application had been before the second respondent previously and was remitted to the delegate for reconsideration, and it was during that time that the applicant’s nomination had ceased on 6 January, 2017 and the sponsor had ceased operating.  The submissions noted that the applicant had found a new prospective employer willing to nominate the applicant for a Temporary Skill Shortage (subclass 482) visa.

15. Notwithstanding those submissions, the second respondent found that the applicant was not sponsored or nominated at the time of the delegate’s decision and that no review of a decision not to approve the sponsor or nomination was pending.  It followed that the requirements of s.338(2)(d) of the Act were not met, and that the second respondent did not have jurisdiction in the matter.

16. It is from that decision that the applicants now bring their application for review.  In their application, they set out four grounds of review.  They are as follows (faithfully reproduced, particulars omitted):

    1.  The second respondent failed to act according to substantial justice and merits of the case and/or failed to act in a way that is fair and just.

    2.  The second respondent failed to give consideration to and ignored critical evidence, or otherwise failed to rely exclusively on relevant facts and information.

    a.  The evidence supplied to the second respondent demonstrates that my case had been remitted back to second respondent for review and that more than two years had passed.

    b.  The second respondent failed to take into consideration that if an error had not been made in the original decision then my husband and I would have been granted our visa.

    3.  The second respondent misdirected itself/misunderstood or misapplied the law when assessing the evidence presented in this matter.

    a.  The second respondent erred by ignoring that a new prospective employer is willing to nominate me for another visa.

    b.  The second respondent could have applied its discretion in this matter but chose not to.

    4.  The second respondent’s decision is otherwise unreasonable. 

    a.  The second respondent’s decision has significantly disadvantaged me and due to its decision, I will suffer irrefutable loss or extraordinary hardship.

    b.  The second respondent erred by failing to properly review the matter before it.

17. The focus of the applicants’ grounds of review is the fact that the employer’s sponsorship nomination had expired by the time the delegate determined the visa application for the second time.  Their argument is that had the first delegate not made an error, or had the second respondent determined the review of the first delegate’s decision in a timely way, the applicants would have been granted the visas for which they applied.  This too, was the focus of the applicants’ oral submissions before me.

18. However, the second respondent was correct to find that it did not have jurisdiction to consider the applicants’ application for review of the second delegate’s decision. 

19. The second respondent only has that jurisdiction which is conferred upon it by the Parliament. That conferral occurs by legislation that invests the second respondent with its jurisdiction. For present purposes, the second respondent has jurisdiction to review a decision under the Act if an application is properly made under ss.347 or 412 of the Migration Act. As the first respondent submits, s.412 of the Migration Act has no application to this case because it relates to a Part 7-reviewable decision.  On any view, the decision the subject of the application to the second respondent was not a Part 7-reviewable decision.

20. I accept the first respondent’s submission that the only basis on which the delegate’s decision could be reviewable by the second respondent was on an application made under s.347 of the Act. This, in turn, would require that the delegate’s decision be a Part 5-reviewable decision. It was not for the reasons given by the second respondent. Subsection 338(2)(d) could not be successfully engaged in this case by the applicants. There was no decision to refuse to approve the sponsor or nomination of the applicant. Subsections 338(2)(d)(ii) and (iii) could not be satisfied. Whilst the first applicant had held an approved nomination by SNMR Pty Ltd (approved on 6 January, 2016) that approved nomination expired 12 months after the date of approval. So much was provided for by reg.2.75(2)(b) of the Regulations. Because the approved nomination had expired on 6 January, 2017 the first applicant could not satisfy s.338(2)(d)(i) or s.338(2)(d)(iv) of the Act at the time of the delegate’s decision.

21. The second respondent was correct to conclude that the delegate’s decision was not a Part 5-reviewable decision and that it had no authority to entertain the applicants’ review application.

22. I accept the first respondent’s argument that follows that the grounds of review pleaded by the applicant are untenable.  The second respondent had no discretion to consider the application in the absence of jurisdiction. 

23. Accordingly, the application for judicial review must be dismissed with costs fixed in the sum sought by the first respondent.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 4 August 2020.

Associate: 

Date: 3 August 2020