SINGH v Minister for Immigration

[2017] FCCA 2385

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2385

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Class UC (Temporary Business Entry) subclass 457 visa – show cause hearing – whether the applicant has an arguable case – Tribunal having found it had no jurisdiction – applicant not having an approved employer nomination and no pending review of the employer nomination refusal.

Legislation:
Migration Act 1958 s.338
Federal Circuit Court Rules 2001 r.44.12

Cases cited:

Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365; [2015] FCAFC 182

Applicant: JAGJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 3 of 2017

Judgment of: Judge Riley

Hearing date: 4 September 2017

Date of last submission: 4 September 2017

Delivered at: Melbourne

Delivered on: 4 September 2017

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Nicola Caon

Solicitors for the first respondent: Sparke Helmore Lawyers

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore

ORDERS

DISMISSAL

1. The application filed on 3 January 2017 be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3 of 2017

JAGJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

Introduction

1. This is an application for review of a decision of the Administrative Appeals Tribunal.  The Tribunal found that it did not have jurisdiction to review the decision of a delegate of the Minister refusing the applicant a temporary business entry subclass 457 visa. 

2. The matter was listed today for a show cause hearing.  As such, the question for determination is whether the applicant has an arguable case that the Tribunal made a jurisdictional error. 

3. The Tribunal said:

   [11]In this case, the Tribunal has reviewed its records and those of the Department and is satisfied that, at the time the applicant lodged his application for review on 31 October 2016, he was not subject to an approved nomination and nor was any nomination relating to him pending with the Department. The Tribunal's records indicate that no review application was lodged in relation to any nomination of the applicant, and it finds that the time frame to do so has now expired in relation to a nomination to be lodged with the Department.

   …

   [13]The Tribunal finds that no jurisdiction arises under s.338(2)(d)(i). This is because the applicant was not subject to an approved nomination and nor was any nomination application relating to the applicant pending for determination with the Department at the time the application for review was lodged on 31 October 2016 (or within 21 calendar days of that date). …

   [14]Furthermore, the Tribunal finds that no jurisdiction arises under s.338(2)(d)(ii). This is because at the time that the visa review application was made on 31 October 2016, there was no pending review of any decision to refuse the sponsor seeking to nominate the applicant, whether this be a review of a decision made under s.140E to refuse standard business sponsorship, or a decision made under s.140GB to refuse a nomination made by a standard business sponsor relating to the applicant.

   [15]As the delegate's decision is not reviewable in these circumstances, it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

4. The applicant set out in his application a number of grounds.  The applicant was not legally represented today, but it appears that he may have had legal assistance in drafting the application.

5. The first ground in the application filed on 3 January 2017 is:

   That the Member in the Administrative Appeals Tribunal (‘the AAT’) erred in law and therefore fell into jurisdictional error in not applying s.338 of the Migration Act 1958 correctly as a whole. 

6. This ground relates to the Tribunal considering that it did not have jurisdiction pursuant to s.338 of the Migration Act 1958 (“the Act”). That section defines what is a reviewable decision. Relevantly, s.338 of the Act provides that:

   (1)A decision is a Part 5-revieweable decision if this section so provides ….

   …

   (2)A decision … 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.

7. Subclass 457 visas were prescribed for the purposes of s.338(2)(d) of the Act. It is only by meeting that provision that the Tribunal could have had jurisdiction to review the applicant’s application for a subclass 457 visa.

8. The applicant told the court that he had previously had a subclass 457 visa pursuant to the sponsorship of his employer, Baba Sher Shah Wali Pty Ltd. That is consistent with the applicant’s visa application which was lodged on 18 March 2016. The applicant’s visa application indicates that the applicant had a subclass 457 visa which was due to expire on 20 March 2016: CB6.

9. Because of the expiration of that visa, it was necessary for the applicant to apply for second subclass 457 visa with the benefit of an approved sponsorship nomination.  In this particular case, it seems that his employer nomination for the applicant’s second subclass 457 visa was refused.  The applicant told the court that it was refused because the Department of Immigration and Border Protection determined that his employer did not need a manager to operate its business. The delegate rejected the applicant’s subclass 457 visa application on the basis that there was no approved sponsorship nomination.

10. In addition to the usual materials, there is in this case an affidavit of Nicola Esti Caon, affirmed on 1 September 2017, which explained that:

    a)the applicant’s sponsor’s nomination application was refused on 2 September 2016; and

    b)there was no nomination application in relation to the applicant with the Department pending determination at the time the present application for review was lodged with the Tribunal or within 21 days of that date.

11. The applicant sought review by the Tribunal of the delegate’s refusal of the subclass 457 visa application. When the matter came before the Tribunal for determination, the requirements of s.338(2)(d) of the Act had not been met, because there was no approved sponsorship nomination and no pending application to review the refusal of the sponsorship nomination.

12. It seems to me that it cannot be reasonably argued that the Tribunal made a mistake in relation to the application of s.338(2)(d) of the Act. The Tribunal’s decision seems to have been in accord with s.338 of the Act and 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. Consequently, ground 1 is not arguable.

13. Ground 2 in the application filed on 3 January 2017 is:

    That the Member in the AAT erred in law and therefore fell into jurisdictional error in not affording the Applicant procedural fairness insofar as:

    i.Summarily dismissing his review application;

    ii.Not conducting a full and final hearing; and

    iii.Not obtaining verbal evidence from the Applicant to assess the merits of his review application.

14. The Tribunal did not summarily dismiss the review application.  It correctly found that it did not have jurisdiction.  It is true that the Tribunal did not conduct a full and final hearing, but that is because it had formed the view that it had no jurisdiction to do so.  It is also true that the Tribunal did not obtain verbal evidence from the applicant to enable the Tribunal to assess the merits of his review application. But again, that is because the Tribunal formed the view that it did not have jurisdiction.  Because it did not have jurisdiction, it did not have to, and, indeed, could not, conduct a full and final hearing, or obtain verbal evidence from the applicant.

15. The Tribunal did give the applicant procedural fairness on the jurisdictional issue by sending a letter on 17 November 2016 to the applicant’s agent, alerting the applicant to the jurisdictional issues as identified by the Tribunal, and seeking comments by 1 December 2016.  The applicant’s migration agent wrote to the Tribunal on 1 December 2016 saying that he did not have instructions.  Consequently, it was open to the Tribunal to proceed to make the decision on jurisdiction without hearing further from the applicant.

16. It is not arguable that the Tribunal failed to fulfil its procedural fairness obligations in this case. 

17. The third and final ground in the application filed on 3 January 2017 is:

    That the Member in the AAT erred in law and therefore fell into jurisdictional error by failing to consider all of the evidence before them. 

    Particulars

    i.By discounting the evidence before them that indicated that Minister’s delegate had incorrectly assessed the position relating to the Applicant’s nomination as ‘not genuine’.

    ii.By failing to consider the evidence in totality and cumulatively;

    iii.By accepting the implication made by the Minister’s delegate, without proper investigation, that implied that the Applicant was only seeking a ‘migration outcome’ in making his Visa Application.

18. The first aspect of ground 3 appears to relate to the sponsorship nomination rather than the applicant’s subclass 457 visa application.  However, there was no application to review the sponsorship nomination refusal before the Tribunal.  Therefore, the question of whether the applicant’s sponsorship nomination was genuine was not an issue for the Tribunal.  There was no need for the Tribunal to hear any evidence about it.

19. The second aspect of ground 3, that the Tribunal failed to consider the evidence in totality and cumulatively, is not arguable.  The Tribunal considered the jurisdictional issues and found that it did not have jurisdiction.  That was as much as it needed to do.  It is plain that the Tribunal considered the relevant evidence in relation to the jurisdictional issues.

20. The third aspect of ground 3 also seems to be related to the sponsorship nomination decision, because there is no reference to the migration outcomes that the applicant might have been seeking in either the Tribunal’s decision or the delegate’s decision on the 457 visa application.  There is no basis upon which it could be said that the Tribunal accepted that alleged implication.  Ground 3 is not arguable.

21. In all the circumstances, it seems to me that it cannot be said that the application before the court is arguable.  It is unfortunate, but it appears that the applicant was simply not aware that it was necessary for the sponsor to seek its own review of the separate decision in relation to the sponsorship nomination. 

22. In any event, the application will be dismissed with costs. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     28 September 2017