Singh v Minister for Immigration

[2015] FCCA 1680

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1680

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – application for Subclass 457 Business (Long Stay) visa – Tribunal did not have jurisdiction to review the decision – decision of the Tribunal quashed – not open to the Court to remit the matter to the Tribunal for reconsideration.

Legislation:

Migration Act 1958 (Cth), ss.140GB, 140GB(1), 337, 338(2)(d), 338(2)(d)(i), 338(2)(d)(i)(ii), 348(i)

Migration Regulations 1994 (Cth), reg.4.02(1A)(k)

Eisele v Minister for Immigration [2014] FCCA 677

Applicant: GURDEV SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 753 of 2014

Judgment of: Judge Hartnett

Hearing date: 22 April 2015

Delivered at: Melbourne

Delivered on: 18 June 2015

REPRESENTATION ON HEARING:

The Applicant: In person

Counsel for the First Respondents: Mr Brown

Solicitors for the First Respondents: Australian Government Solicitor

ORDERS MADE 18 JUNE 2015

1. The decision of the Second Respondent dated 1 April 2014 be quashed.

2. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG753 of 2014

GURDEV SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By Application dated 23 April 2014, the Applicant seeks judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) which purported to affirm a decision of a Delegate of the First Respondent (‘the Delegate’) to refuse to grant the Applicant a Subclass 457 Business (Long Stay) visa (‘the visa’).

2. The grounds of the Application are:-

   “1.    I am confident that if given a chance I will be able to provide it;

   2.      I have sponsor for my Application;

   3.      I have sufficient proof to grant my file;

   4.      Migration review refuse my file but I have sponsorship if they give me a chance.”

3. By Amended Response filed on 8 April 2015, the First Respondent seeks that the decision of the Second Respondent be quashed on the ground that the Second Respondent did not have jurisdiction to conduct the review of the Delegate of the First Respondent’s decision dated 30 May 2012.

4. The Applicant is a citizen of India. His partner, Ms Summet Kaur, was the secondary applicant in the visa application, but has not been included as an applicant in the judicial review application.

5. On 1 December 2011, the Applicant applied for the visa. On 6 February and 24 April 2012, the Department of Immigration and Citizenship (as it then was) refused two applications from the Applicant’s prospective employer, Hospitality Inspiration Group Pty Ltd, for approval as an approved standard business sponsor. The Applicant was advised of these outcomes.

6. On 30 May 2012, the Delegate refused to grant the Applicant the visa. The Delegate found that the Applicant did not meet the requirements for either a Subclass 456 Business (Short Stay) visa or Subclass 457 Business (Long Stay) visa – specifically because he did not satisfy cl.456.211(b) and cl.457.223(4)(a) of sch.2 to the Migration Regulations 1994 (‘the Regulations’).

7. On 22 June 2012, the Applicant applied for review of the Delegate’s decision to the Tribunal.

8. On 14 January 2014, the Tribunal invited the Applicant to appear at a hearing before it on 27 March 2014. The Applicant was invited to give evidence and present arguments relating to the issues in his case.

9. Despite indicating in a Response to Hearing Invitation that he would attend the hearing on 27 March 2014, there was no appearance by or on behalf of the Applicant. The Applicant did however, forward to the Tribunal, a written submission, received by the Tribunal on 25 March 2014.

10. On 1 April 2014, the Tribunal purported to affirm the decision of the Delegate.

11. On 23 April 2014, the Applicant filed this Application for judicial review.

12. In the Tribunal’s Decision Record dated 1 April 2014 (‘the Decision Record’), at paragraph [3], the Tribunal determined that it did not have jurisdiction to review a decision to refuse a Subclass 456 Business (Short Stay) visa. The Tribunal found that the only “stream” relevant to the review before it was the standard business sponsorship stream in cl.457.223(4) of sch.2 to the Regulations, and that the First Applicant had made no claims to satisfy the alternative streams in cl.457.223.

13. In the Decision Record at paragraph [7], the Tribunal identified the issue for its determination as being whether the Applicant met the requirements of cl.457.223(4)(a) of sch.2 to the Regulations, requiring that there is currently an approved nomination of an occupation relating to the visa applicant, by an approved standard business sponsor.

14. In the Decision Record at paragraph [10], the Tribunal noted the Applicant’s response to its invitation to comment on or respond to information that Departmental records indicated that the Applicant did not have an approved sponsor. Specifically, that the Applicant sought the Tribunal’s “compassionate consideration” of his circumstances.

15. In the Decision Record at paragraph [11], the Tribunal found that “in the absence of evidence that the Applicant has an approved sponsor” the Applicant did not meet cl.457.223(4)(a) of sch.2 to the Regulations.

16. In the Decision Record at paragraph [13], the Tribunal purported to affirm the Delegate’s decision.

Consideration

1. Section 338(2) of the Migration Act 1958 (Cth) relevantly provides that a decision to refuse to grant a non-citizen a visa is an “MRT-reviewable decision” if the circumstances in sub-ss.(a) to (d) are met. Sub-sections (a) to (c) are met in the circumstances of this matter. Subparagraph (d) provides:-

   “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.”

2. The term “sponsored” is relevantly defined in s.337 of the Act as having “the same meaning as in the regulations”. Regulation 4.02(1AA) of the Regulations states that “[f]or section 337 of the Act, sponsored includes being identified in a nomination under section 140GB of the Act”.

3. Sub-section 140GB(1) of the Act relevantly states that:-

   “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.”

4. The term “approved sponsor” is relevantly defined in s.5 of the Act to mean a person who has been approved by the First Respondent and whose approval has not been cancelled or has otherwise ceased to have effect.

5. Subclass 457 visa is prescribed for the purposes of s.338(2)(d) of the Act under reg.4.02(1A)(k) of the Migration Regulations 1994 (Cth).

6. The following submissions of the First Respondent are correct. The Applicant did not have an approved sponsor at the time of the application to the Tribunal. The Applicant’s prospective employer, Hospitality Inspiration Group, lodged two sponsorship and nomination applications. Neither of those applications was able to be assessed as the employer was not an approved standard business sponsor. As the Applicant was not “sponsored by an approved sponsor” at the time of the review application, the condition in s.338(2)(d)(i) of the Act was not met. As the Applicant’s prospective employer did not have an application for review of a decision not to approve it pending at the time of the review application, s.338(2)(d)(ii) of the Act was not met.

7. As the circumstances in sub-ss.338(2)(d)(i) and (ii) of the Act were not met, the decision under review was not an “MRT-reviewable decision”. As submitted by Counsel for the First Respondent for the purposes of s.348(1) of the Act, the Tribunal did not have jurisdiction to review the decision and it erred in doing so.[1]

   [1] See, eg, Eisele v Minister for Immigration [2014] FCCA 677 at [43].

8. The Applicant is seeking an order that the decision of the Tribunal be quashed. The First Respondent agrees that the decision should be quashed, but contends that as the Tribunal did not have jurisdiction to review the decision, it is not open to the Court to remit the matter to the Tribunal for reconsideration. I agree with that submission.

9. As this Court does not have jurisdiction to review the Delegate’s decision, the Delegate’s decision to refuse the visa application remains in force.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 18 June 2015