SINGH v Minister for Immigration

[2015] FCCA 1465

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1465

Catchwords:
MIGRATION – Migration Review Tribunal – Class UC (Temporary Business Entry) visa – impermissible challenge to the adverse findings of fact – no jurisdictional error.

Legislation: 

Migration Act 1958, ss.338, 476

Damore v Minister for Immigration & Anor [2015] FCCA 1289
Minister for Immigration and Citizenship v Islam (2012) 202 FCR 46
Minister for Immigration v Lee [2014] FCCA 2881

Applicant: BHUPINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 824 of 2015

Judgment of: Judge Street

Hearing date: 29 May 2015

Date of Last Submission: 29 May 2015

Delivered at: Sydney

Delivered on: 29 May 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr M. Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 824 of 2015

BHUPINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 27 February 2015 holding that the Tribunal did not have jurisdiction to review a refusal to grant the applicant a Class UC (Temporary Business Entry) visa.  The grounds in the application are as follows:

   1. The Migration Review Tribunal wrongfully stated that it does not have jurisdiction in this matter.

   2. The Applicant had an approved nomination at the time of lodgement of the visa application.

   3. Pursuant to section 338 (2) (d) (ii) of the Migration Act 1958 the Migration Review Tribunal failed to consider a pending sponsorship decision.

2. Section 338(2)(d) provides as follows:

   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 an “MRT-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

3. The applicant identified that he had an approved sponsor at the time that he lodged a visa application. That approved nomination is one under the statutory regime but had a limited duration and had expired by the time of the lodgement of the application for review in respect of the refusal by the delegate of the applicant’s application for a visa. The language in s.338(2)(d) is clear in that it requires that the non-citizen is sponsored by an approved sponsor. The visa is a temporary visa of the kind described for the purposes of this paragraph.

4. It is common ground that, at the time of the application to review, there was no application for review either of the decision to approve the sponsor or an application in respect of the refusal to approve the nomination of the applicant.  In those circumstances there is no scope for the application of subs.(2)(d)(ii).  The applicant must satisfy either subs.(2)(d)(i) or (2)(d)(ii). 

5. In relation to s.338(2)(d)(i), there is existing authority in this Court as to the proper construction of that provision. In the Minister for Immigration v Lee [2014] FCCA 2881, which accords with the reasons of Robertson J in Minister for Immigration and Citizenship v Islam (2012) 202 FCR 46 and which has been followed by this Court in Damore v Minister for Immigration & Anor [2015] FCCA 1289. It is clear at the time of the application to review the applicant was not the subject of an approved nomination by an approved sponsor. It is in those circumstances that the Tribunal was correct to follow the decision in Minister for Immigration v Lee. 

6. Relevantly the Tribunal said:

   2. The Tribunal’s jurisdiction arises under s.348 of the Migration Act 1958 (the Act) if an application is properly made under s.347 for review of an MRT-reviewable decision. Section 338 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are MRT-reviewable and the circumstances in which they are reviewable. A decision to refuse the grant of a Subclass 457 visa, where the visa application was made in the standard business sponsor stream, is MRT-reviewable under s.338(2)(d) if an applicant made the visa application while in the migration zone and either the applicant is sponsored by an approved sponsor at the time the application for review of the visa refusal is made; or an application for review of a decision not to approve the sponsor has been made but at the time the application for review of the visa refusal is made, review of the sponsorship decision is pending. Pursuant to r.4.02(1AA), for section 337 of the Act, ‘sponsored’ includes being identified in a nomination under section 140GB of the Act.

   3. Following the recent decision of the Federal Circuit Court in MIBP v Lee [2014] FCCA 2881, for the purposes of s.338(2)(d)(i) there must have been, at the time the review application was made, a nomination of an occupation approved and in force. For the purposes of s.338(2)(d)(ii), there must have been at the relevant time a review of a sponsorship refusal decision pending before the Tribunal. The decision is not reviewable in the circumstances of this case because at the time the review application was lodged, there was no nomination of an occupation approved and in force, and no review of a sponsorship refusal decision pending before the Tribunal.

   4. The Tribunal wrote to the applicant on 13 January 2015 inviting comments on whether a valid application for review had been made. The Tribunal received submissions from the applicant’s representative. They outlined the circumstances relating to the applicant’s visa application, and raised issues about the length of time taken for the Department to process the application. They also provided evidence that a nomination of an occupation (Customer Service Manager) relating to the applicant was approved by the Department on 31 May 2013. The submissions indicated that the applicant’s employer was willing to lodge a new nomination in relation to the applicant, and requested the Tribunal to decide the review after a decision was made in relation to the new nomination application.

   5. The Tribunal has considered the submissions and related documents, but is not satisfied that they provide a basis for finding that the review application was validly made.

   6. The Tribunal accepts that the applicant had previously had an approved nomination of an occupation relating to him. However as that nomination was approved on 31 May 2013, it ceased on 31 May 2014, pursuant to r.2.75. The Tribunal finds that at the time the review application was lodged, 17 June 2014, there was no nomination of an occupation relating to the applicant that was approved under s.140GB of the Act and was in force. At that time, there was also no application for review of a decision not to approve the sponsor, which was pending before the Tribunal.

   7. The Tribunal therefore finds that the requirements of s.338(2)(d) are not met.

   8. The Tribunal has considered the applicant’s request to delay making a decision on this review application until the employer’s new nomination application is decided by the Department. However even if the applicant obtains a new approved nomination, this will not assist to establish that there was an approved nomination in force at the time the review application was made. The Tribunal is not satisfied that delaying its determination on whether it has jurisdiction in this matter is warranted.

   9. As the delegate’s decision is not MRT-reviewable in these circumstances it follows that the application for review was not properly made under s.347 for review of an MRT-reviewable decision for the purposes of s.348 and the Tribunal does not have jurisdiction in this matter.

7. The applicant raised a complaint about the time taken by the delegate to determine the visa application. That was a matter to which the Tribunal turned its mind but correctly held that it was bound by the language of s.338(2)(d) to conclude that the requirement for jurisdiction. That decision was correct. It was in these circumstances the delegate’s decision was not a MRT-reviewable decision. Accordingly, there is no jurisdictional error of the kind alleged in the application. The application is dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  3 June 2015