Singh v Minister for Immigration
[2018] FCCA 3769
•3 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3769 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal that it did not have jurisdiction – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.140E, 140GB, 338, 347, 353, 360 |
| Cases cited: Brown v Minister for Home Affairs [2018] FCA 1643 |
| Applicant: | HARDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2313 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 3 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 3 December 2018 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2313 of 2016
| HARDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 11 August 2016. The Tribunal found that it did not have jurisdiction to review a decision of a delegate of the First Respondent to refuse to grant the Applicant a Temporary Business Entry (Class UC) visa.
The Applicant applied for that visa on 4 January 2016 on the basis that he was sponsored (and identified in a nomination) by a prospective employer, Zampelle Pty Ltd (Zampelle). However on 19 April 2016 the Department refused Zampelle’s application for standard business sponsorship approval and hence its nomination application was unable to be assessed.
The Department wrote to Mr Singh on 19 April 2016, putting this information to him for comment. It appears from the delegate’s decision that Mr Singh did not respond to this invitation to comment.
On 18 May 2016, a delegate of the Minister refused Mr Singh’s visa application, finding that as he was not the subject of an approved nomination, he did not meet the criterion for a Subclass 457 visa in cl.457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
Mr Singh sought review by application lodged with the Tribunal on 31 May 2016. The Tribunal acknowledged receipt of that application, advising him on 3 June 2016 that the validity of his application had not been assessed, that it could only review a decision if a valid application for review had been made, and that he would be advised if it appeared his application may not be valid.
On 11 July 2016 a Tribunal officer wrote to Mr Singh expressing the view that his review application was not valid because at the time it was lodged, he was not identified in a nomination under s.140GB of the Migration Act 1958 (Cth) (the Act) that was approved or pending and there was no pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E or a decision not to approve the nomination under s.140GB of the Act. The Tribunal officer pointed out that this was a matter that must be determined by a member, but gave Mr Singh the opportunity to provide comments by 25 July 2016.
Mr Singh responded by letter of 21 July 2016. His response, which was addressed in the Tribunal reasons, suggested that he had a somewhat “different point of view” in relation to the assertion that there was no pending or approved nomination when his review application was submitted. He referred to his experience, to a claimed lack of commitment and cooperation on the part of his prospective employer, but also stated that during the processing of his visa application, Zampelle had closed down its business due to “unknown and unforeseeable reasons” and that this had had a serious impact on his visa application. He acknowledged that these factors had led to the nomination application being declined, but blamed the refusal of his visa on untimely preparation and lack of correspondence between the sponsoring employer and his then migration agent, which he claimed he did not know about until the Department made an unfavourable decision. On this basis he asserted that his review application to the Tribunal was valid.
However, in its reasons for decision, the Tribunal found that it had no jurisdiction in respect of the review application. It referred to the provisions in the Act which relate to the jurisdiction of the Tribunal, in particular s.347 (which contains the requirements for an application for review of a Part 5 reviewable decision) and s.338(2)(d) of the Act which, relevantly, is as follows:
(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 Tribunal summarised the effect of s.338(2)(d) and referred to the fact that “sponsored” included being identified in a nomination under s.140GB of the Act. It noted that in the case of a subclass 457 visa sought on the basis of nomination by a standard business sponsor, cl.457.223(4)(a) required that a nomination of an occupation in relation to the applicant has been approved under s.140GB and that the nomination had to be made by a person who was a “standard business sponsor” at the time the nomination was approved. The Tribunal also referred to the definition of a standard business sponsor (see s.5 and s.140E of the Act and regs.1.03 and 2.58).
The Tribunal had regard to the fact that, according to the delegate’s decision record, on 19 April 2016 a decision was taken by the Department to refuse the standard business sponsorship approval application lodged by Zampelle, Mr Singh’s prospective employer, and that as Zampelle was not an approved standard business sponsor, the delegate had found that the nomination application lodged by Zampelle was unable to be processed. The Tribunal referred to the fact that the Applicant had not responded to the Department’s request or opportunity to provide comment in relation to this information and to the delegate’s finding that the Applicant did not meet the criterion in cl.457.223(4) of Schedule 2 to the Regulations.
The Tribunal observed that after the Applicant sought review, it wrote to him expressing the preliminary view that his application was not valid. It set out his response, which it described as the only evidence that at the time of the review application he was identified in a nomination under s.140GB of the Act.
The Tribunal addressed Mr Singh’s assertion that his visa had been refused because of untimely preparation and lack of correspondence between his sponsoring employer and migration agent. While the Tribunal acknowledged that this may have been correct, it found that it did not change the fact that at the time of the application for review, the Applicant had not been identified in a nomination under s.140GB of the Act that was either approved or pending. As the Tribunal pointed out, the original nomination had been rejected and, as the Applicant himself stated, Zampelle (the nominating sponsor) had closed down.
The Tribunal found that there was no pending application for review before it of either a decision not to approve the sponsor under s.140E or a decision not to approve the nomination under s.140GB of the Act at the time the Applicant lodged his application for review.
The Tribunal therefore found that the requirements of s.338(2)(d) were not met, so that the decision to refuse the Applicant’s subclass 457 visa was not a reviewable decision under that provision and nor was it reviewable under any of the other subparagraphs of s.338 or reg.4.02(4).
On this basis the Tribunal concluded that as the delegate’s decision was not reviewable, the application for review was not properly made and that it did not have jurisdiction.
Mr Singh sought review of the Tribunal decision by application filed on 25 August 2016. In his application, and in an accompanying affidavit, he set out some 15 paragraphs as “grounds” of review. For the most part these set out his account of what had occurred at various times after he made his application for a subclass 457 visa. While he referred to the delegate’s invitation to comment, he did not suggest that he had made any response to the Department. Rather, he suggested that he had spoken with his sponsoring employer about whether it was considering lodging an “appeal”. He suggested his sponsor may have thought it still had the opportunity to seek review.
The Applicant indicated that the basis for his appeal to the Tribunal was his concern that the Department had refused his visa application while, in his view, his sponsoring employer was still able to lodge an application for review of the Department’s decision and that this was erroneous.
Insofar as the Applicant suggested that the Department had made a mistake, the decision before the court is the decision of the Tribunal, not of the Department.
The Applicant’s concerns about the Tribunal decision are to be seen in light of the basis for the Tribunal’s findings. The Tribunal found, correctly, that it had no jurisdiction to hear and determine the Applicant’s review application. As indicated, it referred to the applicable statutory provisions, in particular s.338(2) of the Act. It had invited the Applicant to comment on its preliminary view that the application was not valid. It had regard to the Applicant’s response, but found, unexceptionally, that at the time the application for review was lodged, the Applicant was not identified in a nomination that was approved or pending, that there was no pending application for review from Zampelle and nor was there evidence of any other proposed sponsor or nominator. There is no suggestion that the Tribunal erred in making those findings.
As pointed out in the Minister’s submissions, the Tribunal has power under Part 5 of the Act to review Part 5 reviewable decisions. Part 5 reviewable decisions are relevantly defined by s.338(2) of the Act, including those that fall within s.338(2)(d), to which I have referred.
A subclass 457 visa is a temporary visa prescribed for the purposes of s.338(2)(d) of the Act under reg.4.02(1)(a) and hence, as the Minister submitted, for the delegate’s decision to be reviewable by the Tribunal as a Part 5 reviewable decision, one of the two requirements of s.338(2)(d) of the Act must be met.
In this case, as the Tribunal recognised, at the time of his application to the Tribunal, the Applicant was not sponsored by an approved sponsor or identified in an approved nomination. Nor was there an application for review of a decision not to approve the sponsor or the nomination pending at the time of the Applicant’s review application. There is nothing in the Applicant’s submissions or indeed in the material before the court to suggest that the Tribunal erred in any way in the approach that it took to these provisions of the Act or its conclusions in that respect.
There was no evidence before the Tribunal, and there is none before the court, that any review application had been lodged by Zampelle in relation to the refusal of its sponsorship application. Indeed, the Applicant advised the Tribunal that Zampelle was no longer trading. He did not assert that any review application had been lodged by Zampelle. Accordingly, as the decision did not come within the definition of a Part 5 reviewable decision, the Tribunal was correct in finding that it did not have jurisdiction to review the delegate’s decision.
It is in light of that fact that I turn into the remaining grounds of review. First the Applicant complained that the Tribunal did not offer him a hearing, but “adopted a different path”. The Applicant did not elaborate on this ground.
As the Tribunal had no jurisdiction, its obligation under s.360 of the Act to afford an applicant before it an opportunity to participate in a hearing did not arise. Insofar as the Applicant suggested that if he had a hearing he would have elaborated on his contention that the Department was wrong to refuse his visa at a time when the sponsoring employer was still capable of lodging a review application under s.29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), it is not necessary for the court to consider the potential application of s.29(7) of that Act. The Applicant’s review application was lodged within the time provided for in s.347 of the Act. This is not a case in which it is not necessary to consider the approach taken in Brown v Minister for Home Affairs [2018] FCA 1643 or recent Full Court consideration of whether or not the Tribunal has power under s.29(7) to grant an extension of time in which to seek review. That issue does not arise in this case. The evidence is that Zampelle had not lodged any review application and, according to Mr Singh, had closed its business. Further, his concern that the Department erred or was unfair in relation to the time at which it made its decision, does not establish that the Tribunal erred in finding that it had no jurisdiction (or indeed in any other way).
The Applicant also contended that the Tribunal had failed to consider the “proper” issues before it. I asked him what he meant by this ground. His reply was that the Tribunal had failed to accept his application. He was not able to elaborate on why he felt that the Tribunal should or could have accepted his application. In circumstances where the Tribunal correctly found that it had no jurisdiction, it was not under an obligation to consider whether the Applicant met the applicable criteria for the class of visa for which he applied.
Insofar as it was asserted that the decision by the Department to “pre-emptively refuse” the visa application was a decision the Tribunal had jurisdiction to deal with in accordance with Part 5 of the Act, there is no explanation of the basis for this contention. It is contrary to the provisions in the Act to which I have referred.
The Applicant claimed that in considering whether the Applicant met s.338(2)(d)(i) in light of the actions of the Department, the Tribunal did not take a “holistic view” and failed to act in accordance with s.353(a) and (b) of the Act. He did not elaborate on this contention. Section 353 applies in circumstances where the Tribunal is reviewing a Part 5 reviewable decision. The Tribunal did not conduct a review in this case, because it (correctly) took the view that it did not have jurisdiction.
Further, insofar as a procedural fairness obligation arises in such circumstances, the Tribunal met such obligation by extending the invitation to the Applicant to comment and by its consideration of those comments in its reasons for decision. No failure to afford procedural fairness has been established in this case.
Nor has it been established that the Tribunal adopted an “incorrect forensic approach” in determining the Applicant’s case. Again, the difficulty that faces the Applicant is that at the time that he sought review, he did not meet the sponsorship and nomination requirements and there had been no application by the proposed sponsor for review of the decision of the Department.
In these circumstances, no jurisdictional error has been established. The application must be dismissed.
The Applicant has been unsuccessful. It is appropriate that he meet the costs of the First Respondent. The First Respondent seeks costs in the sum of $5,600. That is less than the amount that was provided for at the time of the application as an indicative guide in the Federal Circuit Court Rules 2001 (Cth). The Applicant sought a reduction in the costs ordered, but was not able to provide any reason for such reduction. I consider that the amount is reasonable and appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 17 December 2018
0