Sharma v Minister for Immigration
[2016] FCCA 1073
•6 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHARMA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1073 |
| Catchwords: MIGRATION – Application for judicial review of decision of Migration Review Tribunal that it did not have jurisdiction to consider application for review of a decision of a delegate of the first respondent not to grant the applicant a Temporary Business Entry (Class UC) Subclass 457 (Business (Long Stay)) (457 visa) because the delegate’s decision was not an MRT-reviewable decision within the meaning of s.338(2)(d) of the Migration Act 1958 (Cth) – Tribunal was correct in concluding it did not have jurisdiction to consider application for review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 338, 338(2)(d), 338(2)(d)(i), 338(2)(d)(ii), 348, 353, 476(2)(a), 476(4) Migration Regulations 1994 (Cth), Schedule 2, cl.457.223(4) |
| Cases cited: Kim v Minister for Immigration and Citizenship [2007] FMCA 166 |
| Applicant: | URMILA SUKHDEV SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1828 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 22 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Newman of Newman & Associates |
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1828 of 2014
| URMILA SUKHDEV SHARMA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for judicial review of a decision of the second respondent (Tribunal) that it did not have jurisdiction to consider an application for review of a decision of a delegate of the first respondent not to grant the applicant a Temporary Business Entry (Class UC) Subclass 457 (Business (Long Stay)) visa (457 visa).
Background
On 8 October 2004 the applicant’s husband (Husband) and the applicant applied for a 457 Visa. The applicant was named in the application as a member of the Husband’s family unit. Thus, the applicant applied for a 457 visa as a secondary applicant, whereas the Husband applied as the primary applicant for the 457 visa.
To have been entitled to the grant of a 457 visa, the Husband and the applicant had to satisfy, among others, the criterion specified in cl.457.223(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). At the time the Husband and applicant applied for the 457 visa, cl.457.223(4) required, among other things, that:
a)the “activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer”,
b)the employer is either a pre-qualified business sponsor, or a standard business sponsor approved under reg.1.20D of the Regulations (as in force before, on, or after 1 July 2003), and
c)the employer is the employer mentioned in cl.1223A(3)(d)(i) of Schedule 1 to the Regulations.
On 4 November 2004 a delegate of the Minister refused the 457 visa application because the employer the Husband had stated in the application would be sponsoring him had not been approved as a business sponsor, and the Husband had not elected to withdraw his visa application. The delegate’s decision, however, only dealt with the application made by the “principal applicant”, that is, by the Husband. Apparently because of that fact, on 18 February 2014 another delegate of the Minister made a decision refusing the applicant’s 457 visa application as a secondary applicant. The delegate refused the application because the applicant did not meet the primary criteria for the grant of the 457 visa, and also because she did not satisfy the secondary criteria, namely, that the applicant is not a member of the family unit of a person who is the holder of a 457 visa.
On 10 March 2014 the applicant applied to the Tribunal for a review of the delegate’s decision of 18 February 2014. By letter dated 9 May 2014, however, a Tribunal officer informed the applicant’s representative that the applicant’s application for review was not a valid application for review because, at the time the applicant lodged her application for review, the sponsor specified in the application for the 457 visa was not an approved sponsor, and that that sponsor had not made a valid application for review of the decision not to approve the sponsor. These matters were relevant to whether the Tribunal had jurisdiction to entertain the application because of s.338(2)(d) of the Act. That paragraph specified as an “MRT-reviewable decision” a decision 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”. Such a decision, however, was an “MRT-reviewable” decision only if:
(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.
The Tribunal officer’s letter invited the applicant’s representative to comment on whether the applicant had made a valid application for review. Neither the applicant nor the applicant’s representative responded to the Tribunal officer’s letter. The Tribunal proceeded, therefore, to consider whether the application was valid.
Tribunal’s decision
The Tribunal concluded the applicant’s application was not an MRT-reviewable decision because the applicant was not sponsored by an approved sponsor at the time the application for review was made, as provided by s.338(2)(d)(i) of the Act, and because an application for review of the decision not to approve the sponsor had not been made, as specified in s.338(2)(d)(ii) of the Act. The Tribunal referred to the decision of Smith FM in Kim v Minister for Immigration and Citizenship as authority for the proposition that s.338(2)(d) of the Act should be construed to apply both to primary and secondary applicants.
What is being challenged?
In the application the applicant filed with this Court, the applicant’s legal representative ticked the box next to which are the printed words “Decision made by a departmental officer”. The application states that the date of that decision is 2 June 2014. 2 June 2014, however, is the date of the letter under cover of which the Tribunal sent to the applicant’s representative the decision the Tribunal made on 30 May 2014.[1] At the hearing before me, Mr Newman, who appeared on behalf of the applicant, confirmed that the issue before the Court was whether the Tribunal had jurisdiction to determine the applicant’s application for review.[2]
[1] CB49-54
[2] T14.20
Grounds of application
The application filed in this Court by the applicant contains three grounds of application. The first is:
The applicant in 2004, applied for a Temporary Work (Skilled) visa as a dependent applicant. The primary applicant’s visa was refused then but the applicant, who speaks little English, and is now single, was unaware of the adverse decision. Ten years later, on 18 February 2014, the first respondent rejected her visa application on the basis that she did not meet the criteria laid down in Mig Reg: 457.2
This ground appears to rely on the applicant’s having been unaware of the delegate’s decision in relation to the Husband’s application. That allegation, however, is not supported by any evidence. I do not accept, therefore, the applicant was not aware of the delegate’s decision.
Even if the applicant were unaware of the delegate’s decision, such fact would be irrelevant to whether the delegate’s decision of 18 February 2014 was an “MRT-reviewable decision”. An applicant’s being aware or unaware of a decision forms no part of the definition of an “MRT-reviewable decision” contained in s.338(2)(d) of the Act. This ground, therefore, fails.
The second ground of application is:
The tribunal in refusing to review the Departmental decision held that her review application was futile. However, the tribunal did not take into account the inordinate delay in the making of the departmental decision and the prejudice that she would suffer namely, that she would be confronted by the bar imposed by s48 of the Migration Act which might have been avoided had she been informed by the first respondent 10 years earlier instead of 10 years later.
The Tribunal did not find the applicant’s application was futile. The basis of the Tribunal’s decision was that s.338(2)(d) of the Act applied not only to primary applicants, but also to secondary applicants; and, for this construction of s.338(2)(d) of the Act, the Tribunal relied on the decision of Smith FM in Kim v Minister for Immigration and Citizenship.[3] The Tribunal noted that in construing s.338(2)(d) of the Act as applying both to primary and secondary applicants, Smith FM in Kim:[4]
pointed to the futility (if a contrary view was adopted) of allowing secondary applicants to have a right of review when the primary applicant did not apply for review, and to the purpose of s.338(2)(d), which is to stop people who do not have a sponsorship from seeking a review of the visa refusal decision.
[3] [2007] FMCA 166
[4] CB53, [5]
The Tribunal appreciated that in Kim, unlike the application before it, both the primary and secondary applicants applied for review. The Tribunal, however, concluded that the reasoning Smith FM applied in Kim also applied where only the secondary applicant makes an application for review.
With respect, I agree with Smith FM’s construction of s.338(2)(d) of the Act. I also agree that his Honour’s reasoning equally applies where only a secondary applicant applies for review. That only the secondary applicant applies, rather than both the primary and secondary applicants, to the Tribunal is not a circumstance that could lead to a construction of s.338(2)(d) of the Act different from Smith FM’s construction of that paragraph.
That the delegate delayed making the decision in relation to the applicant is not a matter that is relevant to whether the Tribunal has jurisdiction to entertain the applicant’s application for review. Further, the prejudice the applicant alleges she suffered because of the delegate’s delay is premised on her not having been made aware of the delegate’s decision of November 2004. As I have already noted, in the absence of evidence, I am not prepared to assume that the applicant was unaware of the delegate’s decision in November 2004 before she was informed of the delegate’s decision of 18 February 2014.
The second ground, therefore, also fails.
Ground 3
The third ground is:
The applicant had a reasonable expectation that the First respondent would act within a timely compass rather than lull her into believing, that her visa position was in some way secure.
Whether or not there is any truth to the assertions expressed and implied in this ground, that cannot affect whether the Tribunal had jurisdiction. That question turned on whether, at the time the applicant lodged with the Tribunal her application for review of the delegate’s decision of 18 February 2014, the Husband was sponsored by an approved sponsor, or an application had been made for review of the decision not to approve the sponsor, and that review was pending. The applicant has not disputed that, as at the date she lodged with the Tribunal her application for review, each of the claimed sponsors identified in the application for a 457 visa was not an “approved sponsor” within the meaning of s.5(1) of the Act, and that no application had been made to the Tribunal for review of a decision not to approve the claimed sponsors as sponsors or, if made, such applications for review were pending.[5]
[5] Notice to admit facts dated 21 October 2014; affidavit of M E Stone, 21 October 2014
The Minister submits that the applicant’s third ground is directed to the omission of the delegate who made the decision in 2004, and the Court does not have jurisdiction under s.476(2)(a) of the Act to deal with the delegate’s decision because the delegate’s decision is a “primary decision” within the meaning of s.476(4) of the Act. I do not accept the delegate’s decision was necessarily a “primary decision” within the meaning of s.476(4) of the Act. Whether or not it was a primary decision depends on whether the delegate’s decision was an MRT-reviewable decision within the meaning of s.338 of the Act as at the time the applicant commenced these proceedings.[6] Given the grounds on which the delegate refused the Husband’s application in 2004, it appears the delegate’s decision was not an MRT-reviewable decision and, for that reason, is not a “primary decision”.
[6] The Act now uses the expression “Part 5-reviewable decision” in relation to decisions made by the Administrative Appeals Tribunal.
That does not mean, however, that the ground discloses any arguable claim for relief. Before the delegate made his decision on 18 February 2014, the Minister may have been liable to mandamus to the extent the Minister had not determined the application for the 457 visa which the applicant and the Husband had lodged on 8 October 2004. The Minister, however, through his delegate, considered the applicant’s application for a 457 visa on 18 February 2014. The only remedy to which ground 3 can conceivably give rise is one based on some form of estoppel. Quite apart from the general unavailability of estoppel to prevent public authorities from performing their duties, or fettering their discretion,[7] ground 3 is not supported by any evidence. The ground assumes the applicant held certain beliefs about her visa status, and that her beliefs were induced by the delegate’s delay. In the absence of evidence, I am not prepared to accept the applicant held any beliefs about her visa status or, if she did, her beliefs were induced by the delegate’s delay, or, if they were induced by the delegate’s delay, the applicant was reasonable in assuming her beliefs.
[7] See generally, Weeks, G., "Estoppel and Public Authorities: Examining the Case for an Equitable Remedy" [2010] UNSWLRS 70
Ground 3, therefore, also fails.
Written and oral submissions
In her written submissions, the applicant submitted that, because of the inordinate delay, she was entitled to a hearing before the Tribunal “even though on a prima facie level it may well have proven futile”.[8] The submission appears to be that, because of the delay, the Tribunal should have conducted a review of the delegate’s decision. That is, the submission is that the delegate’s delay has somehow given to the Tribunal a jurisdiction it otherwise does not possess. I do not accept that submission.
[8] Outline of the Applicant’s Submissions
Even if the delegate’s delay somehow gave the Tribunal jurisdiction, it is inevitable the Tribunal would have affirmed the delegate’s decision. At the hearing, Mr Newman, who appeared for the applicant, suggested, however, that if the Tribunal decided it had jurisdiction, it would have had to consider the “whole matter, which would embrace a 10 year delay”.[9] I do not accept that submission. The issue the Tribunal would have considered is whether the applicant satisfied the criteria relevant to the granting of a 457 visa. One of the criteria would have been whether the Husband was sponsored by an approved sponsor. Given the applicant does not dispute that, at the time she lodged with the Tribunal her application for review, the Husband did not have an approved sponsor, or an application for review had not been submitted seeking a review of the refusal of the sponsorship application or, such application was made but was not pending, it is inevitable that that state of affairs would have continued up to the time the Tribunal would have decided the applicant’s application. In other words, even if the Tribunal ought to have given the applicant a hearing, the applicant’s application for review was bound to fail. In those circumstances, it would be futile to grant the applicant any relief.
[9] T6.25
Mr Newman faintly suggested that there was nothing in the Act to the effect that an applicant is barred from applying to the Tribunal unless the decision is one that falls into the subcategories identified in s.338 of the Act.[10] If Mr Newman intended to make such submission, I do not accept it. The jurisdiction that was granted to the Tribunal under s.348 of the Act was to review, and to review only, “MRT-reviewable decisions”. If a decision was not an “MRT-reviewable decision”, as defined in s.338 of the Act, the Tribunal had no jurisdiction to review the decision. That is the case with the delegate’s decision of 18 February 2014 refusing to grant the applicant a 457 visa.
[10] T10.30
Mr Newman also referred to s.353 of the Act. At the time the applicant applied for the 457 visa, that section provided that, “in reviewing a decision”, the Tribunal is not bound by technicalities, legal forms or rules of evidence, and shall act according to substantial justice and the merits of the case. That provision, however, does not assist the applicant’s case. It applies to MRT-reviewable decisions. As I have already concluded, however, the Tribunal was correct to conclude that the delegate’s decision of 18 February 2014 was not a MRT-reviewable decision.
Conclusion and disposition
The Tribunal made no jurisdictional error in concluding it did not have jurisdiction to entertain the applicant’s application of review of the delegate’s decision made on 18 February 2014 not to grant the applicant a 457 visa. The Tribunal was correct in concluding it had no jurisdiction.
I propose to order that the application be dismissed. I will also order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 6 May 2016
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