Singh v Minister for Home Affairs
[2019] FCA 291
•1 March 2019
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Home Affairs [2019] FCA 291
Appeal from: Singh v Minister for Immigration and Anor [2018] FCCA 2769 File number: WAD 462 of 2018 Judge: STEWARD J Date of judgment: 1 March 2019 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – whether primary judge erred in dismissing an application for judicial review – where application for a temporary work visa refused – where the applicant was not sponsored by an approved sponsor at the time of making the application for review of the refusal decision – where s 338(2) of the Migration Act 1958 (Cth) was not satisfied – whether the Tribunal had the power or authority to review the refusal decision Legislation: Migration Act 1958 (Cth) ss 5, 140GB, 337, 338
Migration Regulations 1994 (Cth) reg 4.02, cl 457.223 of Sch 2
Cases cited: Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365
Singh v Minister for Immigration and Border Protection [2018] FCA 186
Date of hearing: 1 March 2019 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Appellant: The appellant appeared by telephone Counsel for the Respondents: Ms E Tattersall Solicitor for the Respondents: Sparke Helmore ORDERS
WAD 462 of 2018 BETWEEN: PARAMVEER SINGH
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
STEWARD J
DATE OF ORDER:
1 MARCH 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
STEWARD J:
The appellant is an Indian man who sought the grant to him of a Temporary Work (Skilled) (subclass 457) visa. This was refused by a delegate of the first respondent on 11 September 2017. The appellant sought to have that decision reviewed by the second respondent, the Administrative Appeals Tribunal (the “Tribunal”). On 25 October 2017, the Tribunal found that the delegate’s decision was not one which it could review as the Tribunal lacked authority. An application for judicial review was dismissed by the Federal Circuit Court last year. That Court agreed that the Tribunal did not have authority to review the impugned decision. The appellant has appealed that decision to this Court.
Legislative Regime
The applicable legislative regime is perhaps complex; it would certainly not be easy for a lay person to follow it. The decisions which are reviewable by the Tribunal relevantly here are those the subject of Pt 5 of the Migration Act 1958 (Cth) (the “Act”) and they are known as “Part 5-reviewable decisions”. The definition, relevantly, of a “Part 5-reviewable decision” is found at s 338(2)(d) of the Act and, at the applicable time, was in the following terms:
(2)A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
…
(d)where it is a criterion for the grant of the visa that the non‑citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i)the non‑citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii)an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
The word “sponsored” in this provision is important. It is defined in s 337 of the Act to have the same meaning as in the Migration Regulations 1994 (Cth) (the “Regulations”). Regulation 4.02(1AA) provided:
For section 337 of the Act, sponsored includes being identified in a nomination under section 140GB of the Act.
Section 140GB of the Act, referred to in that regulation, provided as follows:
(1) An approved sponsor may nominate:
(a)an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant's proposed occupation; or
(ii)the program to be undertaken by the applicant or proposed applicant; or
(iii)the activity to be carried out by the applicant or proposed applicant; or
(b) a proposed occupation, program or activity.
(2) The Minister must approve an approved sponsor's nomination if:
(a) …; and
(b) in any case—the prescribed criteria are satisfied.
(3)The regulations may establish a process for the Minister to approve an approved sponsor's nomination.
(4) Different criteria and different processes may be prescribed for:
(a) different kinds of visa (however described); and
(b)different classes in relation to which a person may be approved as a sponsor.
Significantly, an integer of s 140GB is that a person seeking the type of visa here must be nominated by an “approved sponsor”. Section 5(1) of the Act defined an approved sponsor as follows:
approved sponsor means:
(a) a person:
(i)who has been approved by the Minister under section 140E in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and
(ii)whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or
(b) a person (other than a Minister) who is a party to a work agreement
The learned primary judge below found the judgment of Derrington J in Singh v Minister for Immigration and Border Protection [2018] FCA 186 to be of assistance in considering the foregoing provisions. I respectfully agree. After considering the judgment of the Full Court of the Federal Court in Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365, Derrington J said, at [19], that s 338(2)(d) of the Act required the following:
(a) under s 338(2)(d)(i):
(i)where, at the time the review application is lodged, the visa applicant is identified in an approved nomination made by a standard business sponsor; or
(ii)where, at the time the review application is lodged, the visa applicant is identified in a nomination application which has not yet been decided by the Department;
(b)under s 338(2)(d)(ii) – where at the time the review application is lodged, the employer seeking to nominate the visa applicant has an application for review pending before this Tribunal, either:
(i)in relation to a decision to refuse the employer the status of standard business sponsor; or
(ii)in relation to a decision to refuse the standard business sponsor an application for approval of a nomination application relating to the visa applicant.
Earlier, at [16], Derrington J summarised the three applications which must each be satisfied in order to fulfil the criterion for the grant of the visa here. His Honour said:
(a)A business sponsor applies to, and is approved, as being suitable to employ an overseas worker or workers. The application is considered against the requirements in the Migration Regulations 1994 (Cth) reg 2.59.
(b)The approved business sponsor submits a nomination application to establish that a position is suitable to be filled by an overseas worker. The nomination is considered against the requirements set out at reg 2.72 of the Regulations.
(c)The visa applicant submits a visa application to establish that he or she is suitable to fill the position. That application is assessed against extensive criteria set out in pt 457 sch 2 of the Regulations.
The foregoing reflects in part the terms of cl 457.223(4) of Sch 2 of the Regulations, which set out the requirement the appellant needed to meet to be eligible for the issue of his visa. At the applicable time, that subclause was in the following terms:
Standard business sponsorship
(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; and …
Here, at the time the appellant made his application to the Tribunal, he was not nominated by an approved business sponsor. It follows from the foregoing legislative regime and for the reasons that follow that there was no Pt 5-reviewable decision which the Tribunal could consider.
Facts
The facts are not in dispute. On 14 September 2016, the appellant lodged his visa application on the basis that he would be sponsored by SSS WA Group Pty Ltd (“SSS WA”). Earlier, on 14 May 2015, a delegate of the first respondent approved SSS WA to be a standard business sponsor. On 13 September 2016, SSS WA lodged a nomination application for the appellant for the position of restaurant manager. On 14 November 2016, before the delegate made his decision to refuse the grant of the visa, SSS WA’s approval expired. On 15 March 2017, SSS WA again sought approval to be a standard business sponsor (“March Sponsorship Application”) and again sought to nominate the appellant (“March Nomination Application”). On 10 August 2017, the March Sponsorship Application was refused and, as a corollary, the Department of Immigration and Border Protection (the “Department”) advised SSS WA that the March Nomination Application could not be assessed. The Department advised the appellant that “[p]rocedures have been initiated to repay any related nomination fees that have been received by the Department”. Subsequently, on 25 August 2017, SSS WA lodged another application for standard business sponsorship approval (“August Sponsorship Application”). By 11 September 2017, being the day the application for the visa was refused, no decision to refuse or grant business sponsorship approval in respect of SSS WA’s August Sponsorship Application had been made. In addition, SSS WA could have, but did not, seek review of the decision to refuse the March Sponsorship Application in the Tribunal.
In the result, the appellant’s visa application was refused as he did not meet the requirement of being identified in a nomination under s 140GB of the Act by an approved sponsor. The letter informing the appellant of this decision relevantly said:
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 the decision not to approve the sponsor is pending.
Following 11 September 2017, there was a scramble of activity. SSS WA lodged a further nomination application on 22 September 2017 (“September Nomination Application”); and on 28 September 2017, the appellant applied to the Tribunal for review of the decision to refuse to grant him the visa he sought to obtain. At the time, SSS WA’s August Sponsorship Application and September Nomination Application remained extant and undecided.
The Tribunal
The Tribunal decided that it had “no jurisdiction” in this matter. Perhaps, more accurately, it should have said that it had no power or authority to review the decision. Its reasons for so concluding may be found at [14]–[15] of its reasons for decision as follows:
This application for review was lodged on 28 September 2017. While a new standard business sponsorship application was made to the department on 25 August 2017 and a new nomination application in respect of the review applicant was made on 22 September 2017, department records confirm that, at the time this nomination was lodged, ‘SSS WA GROUP PTY LTD’ was not a standard business sponsor. Therefore the applicant was not, at the time the review application was lodged on 28 September 2017, the subject of a nomination made by a person who was a standard business sponsor which was not finally determined by the department. Further, there was no review of the sponsorship refusal decision made on 10 August 2017 pending.
Specifically, at the time of this review application, the Tribunal finds that the applicant was not identified in a nomination made by a standard business sponsor which had been approved or was pending. Nor was he identified in a nomination made by a standard business sponsor which had been approved or was pending within the prescribed period for review being 21 calendar days after the applicant was notified of the visa refusal decision.
The Federal Circuit Court
There were two grounds of review relied upon in the application for judicial review in the Federal Circuit Court. They were as follows:
1.The Tribunal did not take into consideration the fact that following the refusal of the application for the standard business sponsor (SBS application) on 10/08/2017, the delegate did not make a decision on the nomination application (nomination application) that was lodged on 15/03/2017 and linked to the SBS application. The delegate proceeded to make a decision to refuse the applicant’s application for subclass 457 visa instead, thus depriving the applicant of the avenue of reviewing the nomination decision.
2.The Tribunal did not also consider that the delegate had failed to take into account that the applicant’s prospective sponsor had lodged a fresh application for standard business sponsor (second SBS) on 25/08/2017 which was, and is, pending decision of the First Respondent.
The learned primary judge rejected both grounds of review. His Honour did so because the decision to refuse to grant the visa did not meet the definitional requirements of s 338(2)(d) of the Act. The reasons for this conclusion are set out at [17] in the judgment of the learned primary judge as follows:
The application to the Tribunal for review of the Delegate’s Decision did not come within s 338(2)(d)(i) or (ii) of the Migration Act because:
a)the approval of the First Sponsorship Application previously held by SSS WA expired on 14 November 2016;
b)the First Nomination Application was administratively finalised on 10 August 2017 as a necessary consequence of the decision to refuse the Second Sponsorship Application, the Tribunal specifically referring to this information in the Tribunal Decision and also to the fact SSS WA did not make an application to review either decision: CB 80 at [9];
c)there is no merit to the allegation that Mr Singh was deprived of the opportunity to review the First Nomination Application decision as Mr Singh was never capable of seeking review of the decision to refuse the Second Sponsorship Application, because only SSS WA was capable of seeking review of that decision: Migration Act, s.347(2)(d); Migration Regulations regs.4.02(4)(a) and (5)(a), and SSS WA elected not to seek review;
d)the Third Sponsorship Application was lodged on 25 August 2017 and a Second Nomination Application nominating Mr Singh was lodged on 22 September 2017: CB 68-72, and Mr Singh applied to the Tribunal for review on 28 September 2017: CB 60-61;
e)Mr Singh alleges that the Tribunal failed to consider that SSS WA had lodged the Third Sponsorship Application and that a decision was still pending, though the Tribunal specifically considered the Third Sponsorship Application and found that Mr Singh was not the subject of an approved nomination on the basis that SSS WA was not a standard business sponsor at the time it had lodged the Second Nomination Application: CB 80-81 at [11]-[12] and [14];
f)SSS WA was not an "approved sponsor" as defined in s.5(1) of the Migration Act and SSS WA only lodged the Third Sponsorship Application prior to the application to the Tribunal for review being filed, and there is no evidence that the Third Sponsorship Application had been approved, or otherwise finalised, prior to the application to the Tribunal for review being made;
g)section 338(2)(d) of the Migration Act is an exhaustive statement of the circumstances in which the Tribunal had jurisdiction to review a decision to refuse the Work Visa; and
h)Mr Singh’s application to the Tribunal for review did not come within s.338(2)(d) of the Migration Act, and the Tribunal was correct to decide that it did not have jurisdiction because there was no approved sponsor.
The Appeal
The grounds of appeal relied upon were as follows:
1.The Federal Circuit Court did not consider that the Tribunal did not take into consideration the fact that following the refusal of the application for the standard business sponsor (SBS application) on 10/08/2017, the delegate did not make a decision on the nomination application (nomination application) that was lodged on 15/03/2017 and linked to the SBS application. The delegate proceeded to make a decision to refuse the applicant's application for subclass 457 visa instead, thus depriving the applicant of the avenue of reviewing the nomination decision.
2.The Federal Circuit Court did not consider that the Tribunal did not also consider that the delegate had failed to take into account that the applicant's prospective sponsor had lodged a fresh application for standard business sponsor (second SBS) on 25/08/2017 which was, and is, pending decision of the First Respondent.
When the appellant sought review in the Tribunal, the decision to be reviewed had to be one that relevantly fell within the parameters of s 338(2)(d)(i) or (ii) of the Act. That required the appellant, at the time of the making of his application for review:
(a)to be a person “sponsored” by an approved sponsor, which includes being identified in a nomination under s 140GB of the Act; or
(b)to be a person in respect of whom an application for review of a decision to refuse sponsorship had been made and was pending.
By reason of the language of both ss 338(2)(d) and 140GB, that approved sponsorship or nomination must take place by an approved sponsor, or by a person pursuing rights of review in relation to a decision not to approve that person to be an approved sponsor. Here, when the application to the Tribunal was made:
(a)the appellant was not nominated by an approved sponsor – SSS WA had ceased to be an approved sponsor on 14 November 2016, and remained unapproved; and
(b)SSS WA had not sought review of the decision made on 10 August 2017 to refuse its sponsorship application in the Tribunal, and there was no other applicable application that was pending.
It follows that the impugned decision did not satisfy s 338(2)(d).
Before me, the appellant explained that he had been advised by a lawyer that he could seek review of the impugned decision in the Tribunal. He now, however, did not have sufficient funds to obtain advice and representation. That is, of course, unfortunate.
Turning to his grounds of appeal, with respect to the appellant, neither ground is made out.
The first ground has two strands. First, it complains that the Tribunal did not take into consideration the fact that the March Nomination Application had not been decided. However, when the March Nomination Application was made, SSS WA had ceased to be an “approved sponsor” and, by reason of the refusal of the March Sponsorship Application on 10 August 2017, remained unapproved when the application to the Tribunal was made on 28 September 2017. The Department was subsequently unable to assess the March Nomination Application because it had refused the March Sponsorship Application on 10 August 2017. Thus, the March Nomination Application had no bearing on that fact which was critical to the authority of the Tribunal to hear the application for review. Second, the appellant complains that the delegate refused his visa application without first deciding the March Nomination Application, thereby depriving him an opportunity to seek review of what I infer to be a refusal of that application. Given my view that the March Nomination Application was not extant, it is not necessary for me to consider this contention in any detail. In any event, only an “approved sponsor” could have sought review of a decision to refuse a nomination: s 338(9) of the Act; regs 4.02(4)(d) and 4.02(5)(c) of the Regulations. Consequently, the appellant’s complaints in the first ground do not sound in any error of law on the part of the Tribunal. The Tribunal correctly understood the applicable legislative regime.
The second ground of appeal was that the Tribunal had failed to take into account that the delegate had not had regard to the pending August Sponsorship Application. The appellant complains that the delegate should have waited for that sponsorship application to be decided before considering his visa application. I have some sympathy with this complaint. The legislative regime operative at the time appears to have given the executive the opportunity to impede a merits review by the order in which events take place. Thus, for example, the Tribunal is seized of authority if an application is made before it for review of a refusal to approve a sponsorship is pending, but not when the Department’s own decision is pending. Even if it could be said that the delegate should have waited for SSS WA to obtain sponsorship approval, that complaint does not sound in any error of law. Moreover, the Tribunal had to proceed to determine whether it had authority to review the visa refusal decision based on what in fact had happened, not by reference to what the appellant contends should have happened.
In that respect, it may be observed that the Tribunal’s lack of authority was not capable of being cured by waiting for the Department to approve SSS WA as a sponsor. SSS WA needed to be an approved sponsor “at the time the application to review the decision to refuse to grant the visa” was made for the purposes of s 338(2)(d). At that time, it is not disputed that SSS WA was not relevantly approved.
For these reasons, the appeal is dismissed with costs as agreed or assessed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward. Associate:
Dated: 11 April 2019
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