Sharma v Minister for Immigration
[2019] FCCA 1791
•2 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHARMA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1791 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Temporary Work Skilled (subclass 457) visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth); Migration Legislation Amendment (Sponsorship Measures ) Bill 2003 (Cth) Migration Regulations 1994 (Cth). |
| Cases cited: Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, 237 FCR 365 Sharma v Minister for Immigration and Border Protection [2015] FCAFC 180. |
| First Applicant: | MANISHA SHARMA |
| Second Applicant: | RAHUL SHARMA |
| Third Applicant: | KRISH SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1165 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 20 February 2019 |
| Date of Last Submission: | 20 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 2 July 2019 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the respondents: | Ms Roberts |
| Solicitors for the respondents: | Mills Oakley Lawyers |
ORDERS
The applicant’s application filed 1 June 2017 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1165 OF 2017
| MANISHA SHARMA |
First applicant
| RAHUL SHARMA |
First applicant
| KRISH SHARMA |
First applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the second respondent, the Administrative Appeals Tribunal (“the tribunal”) dated 17 June 2017. The tribunal found that it had no jurisdiction to review a decision of the delegate of the first respondent dated 3 April 2017, to refuse to grant the applicants’ Temporary Work Skilled (subclass 457) visas.
Background
This proceeding has a long and somewhat complex history. It is necessary in order to understand the nature of the proceeding presently before this court to summarise that history.
The applicants initially applied for subclass 457 visas on 25 June 2013. The application was based on the first applicant’s proposed sponsorship by ‘Loveleen Gupta trading as KLM Imports’ to work as ‘project administrator’. The second applicant is the first applicant’s husband and the third applicant is their dependent child.[1]
[1] Court book pages 1 to 14.
The applicants were represented by a migration agent.[2]
[2] Court book page 6.
On 15 November 2013, the delegate refused the first applicant’s application for a visa on the basis that she was not satisfied that the nominated position was genuine and therefore the applicant did not satisfy the requirements of clause 457.223(4)(d) of the Migration Act 1958 (Cth) (“the Act”), being a prescribed criterion for the grant of the visa. As the second and third applicants’ applications relied upon the first applicant’s application, they too were found not to have satisfied the relevant requirements for the grant of the visa[3] (“November 2013 Decision”).
[3] Court book pages 61 to 69.
On 3 December 2013, the applicants applied to the (then) Migration Review Tribunal (“MRT”) for a review of the November 2013 Decision.[4] On 1 April 2015, the Migration Review Tribunal determined that it did not have jurisdiction to deal with the December 2013 review application.
[4] Court book pages 79 to 88.
The basis of the decision by the MRT that it did not have jurisdiction to deal with the December 2013 review application, was ultimately the subject of an appeal to the Full Court of the Federal Court. The Full Court found that the tribunal’s decision ought to be set aside and the matter remitted to it to be determined according to law.[5]
[5] Court book pages 94 to 95; and Sharma v Minister for Immigration and Border Protection [2015] FCAFC 180, and see also Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182; 237 FCR 365.
On 8 March 2016, the tribunal (differently constituted) remitted the applicants’ applications to the Department for reconsideration with a direction that the applicant met clause 457.223(4)(d) of the Act.[6]
[6] Court book pages 104 to 110.
On 2 May 2016, the applicants via their migration agent provided the Department with further information in support of the applicant’s visa applications. Relevantly, they requested that the applicant’s visa application be ‘linked’ to the ‘new 457 Nomination lodged by Loveleen Gupta on 29 April 2016.[7]
[7] Court book page 111.
On 2 August 2016, the applicants’ new migration representative wrote to the Department advising that they had been appointed and requesting an extension of three weeks in which to ‘lodge a new SBS and Nomination application for my client’.[8]
[8] Court book page 134.
On 4 August 2016, the Department replied to the applicants’ migration agent stating that an extension could not be granted, however, any further information provided prior to the decision being made would be taken into account.[9] The applicants’ migration agent sent a further email on:
a)5 August 2016 indicating that he had lodged a ‘new SBS and Nomination Application for the business’ and requested that the first applicant’s application for a 457 visa be attached to these applications; and
b)on 14 September 2016, again indicating that he had lodged a ‘new SBS and Nomination Application for the business’ and requested that the first applicant’s application for a 457 visa be attached to these applications.[10]
[9] Court book page 138.
[10] Court book pages 140 to 141.
The Department replied on 16 September 2016 acknowledging receipt of these documents and confirming that the department’s system had been updated to reflect these changes.[11]
[11] Court book pages 142 to 143.
On 2 March 2017 the Department wrote to the first applicant seeking further information in relation to her visa application. In particular, the correspondence from the department relevantly stated:
The Department has conducted checks to confirm the information you provided in your application. During this process we have received unfavourable information which does not support your application.
One of the criteria for the grant of a Temporary Work (Skilled) subclass 457) visa is an approved nomination. Your prospective employer, LOVELEEN GUPTA, does not have an approved nomination for you at this time. As a result, your visa application is unlikely to be successful.
…
In the absence of an approved nomination from your prospective sponsor, you can either:
·provide comment on your intentions regarding your visa application (including providing evidence that you are the subject of an approved nomination); o
·withdraw your application in writing; or
·provide comment or any other information which you think is relevant to this adverse information. [12]
[12] Court book pages 148 to 151.
The applicant was asked to provide any response within 28 days.
The applicant provided a copy of correspondence from the Department to KLM Foods Pty Ltd (“KLM”) acknowledging receipt of a nomination application in which KLM nominated the first applicant.[13]
[13] Court book page 159.
On 3 April 2017, the delegate refused the applicants’ application for a subclass 457 visa on the basis that the first applicant was not the subject of an approved nomination and therefore did not meet the requirements of clause 457.233(4)(a) of the Act, being a prescribed criterion for the grant of a visa.[14] In the covering letter advising of the delegate’s decision, the Department stated:
[14] Court book page 167 to 175.
There is no right of merits review for this decision.
However, you may become entitled to apply to the Administrative Appeals Tribunal (AAT) for merits review of this decision if within 21 calendar days after the day on which you are taken to have received this letter, you are sponsored by an approved sponsor, or an application for merits review of a decision not to approve the sponsor is pending.[15]
[15] Court book page 167.
In the delegate’s reasons for decision, the delegate noted that on the basis of the available evidence, the applicant was not subject to an approved nomination and therefore did not meet the requirements of clause 457.223(4)(a) of the Act. The delegate also concluded that the second and third respondents did not meet the requirements of clause 457.321 of the Act.
On 21 April 2017, the applicant filed an application for review with the Administrative Appeals Tribunal seeking a review of the delegate’s decision of 3 April 2017. On 27 April 2017, the tribunal wrote to the applicants acknowledging receipt of the application and noted that ‘the validity of your application has not yet been assessed… You will be advised if it appears that your application may not be valid’.[16]
[16] Court book page 181.
The tribunal also said: If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.[17]
[17] Court book page 181.
On 2 May 2017, the applicants were invited to comment on the validity of their review application. In correspondence, the tribunal relevantly stated:
For you to make a valid application for review in accordance with s 338(2)(d) of the Migration Act at the time the review application is lodged, either:
·Your sponsor is an approved sponsor with either an approved nomination or pending nomination application with the Department in relation to you (s.338(2)(d)(i) of the Migration Act); or
·Your sponsor has a pending application for review of a decision not to approve the sponsorship application or nomination application in relation to you (s.338(2)(d)(ii) of the Migration Act).
I am of the preliminary view, subject to your comments, that your application is not a valid application. This is because it appears that at the time your application for review was lodged with the Tribunal your sponsor was not an ‘approved sponsor’ as defined in the Migration Act and your sponsor had not made a separate application to the Tribunal applying for review of a decision not to approve the sponsorship or nomination application. However this is a matter that must be determined by a member.[18]
[18] Court book page 187.
The applicants were invited to comment on this issue in writing by 16 May 2017.[19]
[19] Court book pages 187 to 188.
On 15 May 2017, the applicant’s representative wrote to the tribunal and said that the first applicant’s:
…employer already lodged the nomination application and for the processing of her AAT case. My client is collecting the documents in support and need the extension of time for this...[20]
[20] Court book page 189.
Tribunal’s decision
On 18 May 2017, the tribunal advised the applicant that it had determined that it did not have jurisdiction to determine the applicant’s applications.
In its decision record, the tribunal set out the basis on which it has jurisdiction to review a decision.[21] It determined that in order to engage the tribunal’s jurisdiction, the question was whether the first applicant meets the requirements of section 338(2)(d) of the Act.[22]
[21] Court book page 198 at paragraphs [2] and [3].
[22] Court book page 198 at paragraph [7].
At paragraph 8 of its decision record, the tribunal sets out its factual findings on the basis of the material contained in the Department’s records including, relevantly:
·the primary applicant was originally nominated for a subclass 457 visa by an Australian employer, Loveleen Gupta;
·Loveleen Gupta was an approved standard business sponsor until 20 June 2016, when its standard business sponsorship approval ceased;
·Loveleen Gupta lodged 2 subsequent applications with the Department for approval as a standard business sponsor, but both were rejected by the Department, on 13 September 2016 and 20 February 2017 respectively;
·no review of either of these decisions by the Tribunal was sought by Loveleen Gupta;
·Loveleen Gupta’s nomination of the primary applicant was approved by the Department on 18 March 21015 and ceased by operation of law on 18 March 2016.
·a second nomination of the applicant by Loveleen Gupta was lodged with the Department was recorded as ‘otherwise finalised’ by the Department when the most recent standard business sponsorship application for approval by Loveleen Gupta was refused by the Department on 20 February 2017. There is no pending review of that nomination application with the Tribunal.
·an application for approval as a standard business sponsor was lodged with the Department by KLM Food Pty Ltd on 29 March 2017 and is yet to be determined; and
·a nomination of the applicant by KLM Food Pty Ltd was also lodged with the Department on 29 March 2017 and is yet to be determined.[23]
[23] Court book page 198 at paragraph [8] and page 199 at paragraph [8].
The tribunal then set out its consideration of these circumstances and stated that it was of the view that section 338(2)(d)(i) of the Act required that the applicant was sponsored by an approved sponsor at the time that she made the review application and that she was either the subject of an approved nomination by that sponsor or the sponsor had a nomination application pending with the department. The tribunal found that these requirements were not met as ‘there was no approved sponsor as at 21 April 2017’.[24]
[24] Court book page 199 at paragraphs [11] to [13].
The tribunal also found that the applicant did not satisfy section 338(2)(d)(ii) of the Act since there was no pending sponsorship review application with the tribunal when the review application was lodged.[25]
[25] Court book page 199 at paragraph [14].
The tribunal therefore concluded that the decision to refuse the visa was not a part 5 reviewable decision and therefore the tribunal did not have jurisdiction to hear and determine the review application.[26]
[26] Court book page 200 at paragraph [16].
The applicant’s claims
The application filed in this court on 1 June 2017, raises the following grounds for review:
1.I am the applicant and I came in Australia on student visa and after completion of my studies, I applied for the 457 visa with my employer.
2.That the member erred in affirming the review application by relying on the evidence DIBP provided to refuse my 457 visa.
3.The DIBP Case officer erred in considering the grounds for not to refuse the 457 visa.
4.Despite of more reasons for not to refuse the visa, he made up his own mind to refuse the visa.
5.Ground: DIBP erred in not considering the findings that despite of rejection of nomination my employer feel my need to work in his workplace and again nominated me and the application is still under process.
6.I never breached any condition of my visa and remained a lawful resident of Australia.
7.DIBP did not provided any extra time even they were fully aware of my conditions any my employer was continuously nominating me in the same position and despite of that they refused my case by giving same reason every time even if I provide the strongest evidences to support my application.
8.Ground: The Tribunal finds that no jurisdiction arises under s.338(2)(d)(i).
9.Which clearly tells that the tribunal made a jurisdiction error and matter to be listed in federal circuit court for review.
10.According to the tribunal, I did not satisfy the criteria but my nomination application is in process and yet to be determined and tribunal gave decision without the decision of DIBP. Particular: the tribunal made the jurisdiction error and failed to provide applicant her
11.Ground: The DIBP case officer and AAT member failed to consider that each case has its own facts, merits and compelling reasons.
12.Ground: Tribunal made a jurisdiction error in relation to secondary applicant. It raises an arguable case as a secondary applicant meets the criteria for the grant of the visa.
13.So I am not satisfied with the review application and jurisdiction error made by tribunal so I wish to apply in federal circuit court for the right review of my application.
14.The member did not considered the compelling reasons that weigh my case for not to refuse my 457 visa.
15.My visa application raises an arguable case in relation to not refuse the visa.
16.That the DIBP Case Officer and AAT member erred in affirming the review and not according substantial justice to the applicants.[27]
[27] The applicant’s application filed 1 June 2017.
The first applicant appeared in person at the hearing before me representing herself and the other applicants. She was assisted by an interpreter.
On 24 January 2018, orders were made by consent providing for, among other things, that the applicants file and serve any amended application, supplementary court book and written submission 28 days prior to the final hearing date. The applicants have not filed any material pursuant to these orders, or otherwise.
At the commencement of the hearing, the first applicant was asked if she could, in her own words state what she considered to be the error made by the tribunal and why her application ought to be granted. In response, the applicant referred to paragraph 8 of the first respondent’s written submissions and stated that although the sponsor’s nomination had been approved, the visa applied for had not been granted. Paragraph 8 of the first respondent’s written submissions refer to paragraph 8 of the tribunal’s decision record and the facts as found by the tribunal that KLM had lodged an application for approval as a standard business sponsor on 29 March 2017 and also an nomination for the applicant.
The applicant went on to say that:
As mentioned in paragraph 2, the last three lines, with it clearly says that to have an approved sponsors or are seeking a review of a decision to refuse to apply to the tribunal for review. So this is what I am referring here.[28]
[28] Transcript page 4 at paragraph at lines [1] to [4].
It seems that this is a reference to the letter from the tribunal which is referred to at paragraph 20 above. I understand the applicant to say that the requirements of section 338(2) of the Act were met and therefore the tribunal did have jurisdiction.
Without in any way being critical, it was understandably difficult for the applicants, representing themselves, to make clear submissions in respect of what are technical and complex issues.
The first respondent essentially relied upon the written submissions filed in these proceedings.
Grounds of review
Although the application contains sixteen paragraphs under the heading ‘Grounds of application’, it is submitted on behalf of the first respondent that only paragraph 5, 8, 9, 11 and 12 can properly be understood as ‘grounds of review’, the remaining paragraphs merely being statements of fact.
I agree that paragraph 1, 6, 13, and 15 are either factual statements or more akin to submissions and do not raise ‘grounds of review’ or identify any potential jurisdictional error. Paragraphs 3, 4, 7 and in part, 16 relate to the delegate’s decision. The court’s jurisdiction is to review the tribunal’s decision not the delegate’s decision therefore those matters do not identify any ‘grounds of review’.
Paragraph 10 seeks to refer to evidence not before the tribunal and not before this court in any proper form.
Paragraph 14, to the extent that it takes issue with the weight given by the tribunal to evidence before it, and o the extent that paragraph 16 relates to the AAT member, this seeks impermissible merits review.
It could be said that the following articulates a possible ‘ground of review:
2.That the member erred in affirming the review application by relying on the evidence DIBP provided to refuse my 457 visa.[29]
[29] Applicant’s application filed 1 June 2017.
To the extent that ground two could be said to be characterised as giving rise to a ground of review, it is misguided. The tribunal did not affirm the delegate’s decision. Rather, it determined that the tribunal did not have the jurisdiction to consider the application for the reasons set out therein.
This then leave those matters identified in paragraphs 5, 8, 11 and 12 which I deal with below.
Paragraph 5
Paragraph 5 of the applicant’s application filed 1 June 2017 states:
…DIBP erred in not considering the findings that despite of rejection of nomination my employer feel my need to work in his workplace and again nominated me and the application is still under process.[30]
[30] Applicant’s application filed 1 June 2017.
As stated, the applicant, although invited to do so did not expand significantly on the grounds of review raised in her application. Nor did she file an amended application or written submissions pursuant to the orders made on 24 January 2018.
In response, the first respondent correctly submits that the court does not have jurisdiction to review the delegate’s decision. Section 476(2) of the Act relevantly provides:
The Federal Circuit Court has no jurisdiction in relation to the following decisions:
(a)a primary decision;
(b)…[31]
[31] Migration Act 1958 (Cth) s. 476(2).
The terms ‘primary decision’ is in turn defined in section 476(4) of the Act to mean a ‘privative clause decision or purported privative clause decision … that is reviewable under Part 5…’[32]
[32] Migration Act 1958 (Cth) s 476(4).
Paragraph 5, therefore, does not disclose any jurisdictional error on the part of the tribunal.
Paragraph 8
Paragraph 8 relevantly claims that the tribunal made a jurisdictional error by finding that it did not have jurisdiction. When read together with paragraph ten, it appears that the applicant asserts that the tribunal did have jurisdiction to review the delegate’s decision on the basis that the first applicant’s nomination had been submitted and was yet to be determined. The applicants’ position is that the finding that it lacked jurisdiction to review the delegate’s decision was therefore affected by jurisdictional error.
Part 5 of the Act deals with the tribunal’s powers in relation to the review of part - 5 reviewable decisions.[33] Section 338 of the Act defines the term ‘Part-5 - Reviewable decision.’ Relevantly for present purposes, section 338(1) of the Act provides: A decision is a Part 5 – reviewable decision if this section so provides…[34]
[33] Migration Act 1958 (Cth) s 336N.
[34] Migration Act 1958 (Cth) s 338(1).
Section 338(2) of the Act then relevantly states:
A decision … 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)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.[35]
[35] Migration Act 1958 (Cth) s 338(2).
It is conceded that sub-paragraphs (a) to (c) of section 338(2) of the Act are met. The question is whether the requirements of (d) were also met such that the delegate’s decision was a part 5 – reviewable decision as defined.
As stated above, the first applicant applied for a subclass 457 visa. The criterion for such a visa are set out at court book page 109 and relevantly include at clause 457.223(4)(a) of schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”):
(4) The applicant meets the requirements of this subclause if:
(a)each of the following applies:
(i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii)the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii)the approval of the nomination has not ceased as provided for in regulation 2.75 …
The facts as found by the tribunal at paragraph 8 of its reasons for decision make it clear that at the time the applicants filed their application for review on 21 April 2017:
a)the primary applicant’s original sponsor Loveleen Gupta was no longer an approved standard business sponsor;
b)to the extent that the nomination by Loveleen Gupta had been approved, this nomination had ceased by operation of law on 18 March 2016; and
c)to the extent that Loveleen Gupta had lodged further applications for approval as a standard business sponsor and nominations of the application, those applications/nominations had either been rejected and or ‘otherwise finalised’ by 20 February 2017 and there was no pending review before the tribunal in relation to those matters.[36]
[36] Court book page 198 at paragraph [8]; and page 199 at paragraph [8].
To the extent that the tribunal found KLM Foods had lodged an application for approval as a standard business sponsor and a nomination of the applicant, both on 29 March 2017 it was satisfied that both of these had not yet been determined at the date of its decision.
However, the requirements of section 338(2)(d)(i) and (ii) of the Act are not satisfied in this case.
Section 338(2)(d) of the Act was introduced as part of the Migration Legislation Amendment (Sponsorship Measures ) Bill 2003 (Cth). The Explanatory Memorandum to that Bill contained the following:
In broad terms, subsection 338(2) provides that a decision to refuse to grant a non-citizen a visa is an “MRT reviewable decision” if the non-citizen made the application for the visa in certain circumstances. For example, the non-citizen applied for the visa in the migration zone, and the visa could be granted while the non-citizen is in the migration zone. That is, any decision to refuse to grant a non-citizen a visa in the circumstances set out in subsection 338(2) is reviewable by the Migration Review Tribunal (MRT).
New paragraph 338(2)(d) limits the circumstances in which a decision to refuse to grant certain visas may be reviewed by the MRT under subsection 338(2). …
…
The purpose of new paragraph 338(2)(d) is to ensure that only those visa applicants who have an approved sponsor, or are seeking review of a decision to refuse to approve sponsorship, may apply to the MRT for review of a decision to refuse to grant a prescribed visa. This is to prevent abuse of the merits review process by refused visa applicants, who have no sponsor, and therefore no ability to meet the criteria for grant of the visa, seeking to extend their stay in Australia by lodging a review application.
Subparagraph (i) of the Act[37] is not satisfied as the first applicant was not sponsored by an approved sponsor on the date that the application for review was filed. Rather KLM Foods had applied for approval as a standard business sponsor on 29 March 2016.
[37] Migration Act 1958 (Cth) s 338(2)(d)(i).
In addition, although KLM Foods had also lodged a nomination form nominating the applicant on 29 March 2016, this also does not satisfy section 338(2)(d)(ii) of the Act as, neither at the time the nomination was made, or, more importantly, at the time the application for review was submitted, was KLM an approved sponsor.
In this case, as at 21 April 2017:
a)Loveleen Gupta was neither an approved sponsor, nor did Loveleen Gupta have on foot an application to review any decision not to approve him as a sponsor; and
b)KLM Foods was not an approved sponsor, nor did KLM Foods have on foot an application to review any decision not to approve it as a sponsor.
This is the very situation which section 338(2)(d) of the Act was intended to avoid. If the intention was to extend the operation of section 338(2) of the Act to situations where a person had lodged an application for approval as a sponsor but that application had not yet been determined by the Department, this could have been made clear in the terms of section 338(2)(d) of the Act.
Consequently, the tribunal was correct in determining that the delegate’s decision was not a part 5 reviewable decision and the tribunal therefore lacked jurisdiction to consider the application filed by the applicants on 21 April 2017.
Paragraph 11
Paragraph 11 of the applicant’s application filed 1 June 2017 states: ‘The DIBP case officer and AAT member failed to consider that each case has its own facts, merits and compelling reasons’.[38]
[38] The applicant’s application filed 1 June 2017.
To the extent that this ground relates to the decision of the delegate, for the reasons set out in paragraph 45 above, the court does not have jurisdiction to review that decision.
To the extent that it takes issue with anything done by the AAT, for the reasons set out above, the AAT properly considered whether the review application was a part 5 – reviewable decision.
The tribunal either has or does not have jurisdiction. It is not open to the tribunal to exercise jurisdiction in circumstances where it is not empowered to do so, irrespective of whether ‘compelling reasons’ exist or not.
The tribunal’s findings in this regard do not disclose any jurisdictional error.
Paragraph 12
Paragraph 12 claims that the tribunal made a jurisdictional error in relation to the secondary applicant.
For the reasons set out above, the analysis engaged in by the tribunal was directed at whether or not it had jurisdiction. It found that it did not. As such, it did not make any findings in relation to the secondary applicant and therefore this ground is not made out.
Conclusion
The findings made by the tribunal that the decision to refuse the visa is not a part 5 – reviewable decision is not affected by jurisdictional error. As none of the applicant’s grounds has been made out, therefore the application should be dismissed with costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 2 July 2019
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