Singh v Minister for Immigration
[2018] FCCA 2769
•27 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2769 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa – whether approved sponsor – whether approved nomination – whether Administrative Appeals Tribunal had jurisdiction – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), Pts.5, 7, ss.5, 140E, 140GB, 337, 338, 347, 411, 412, 474, 476 Migration Regulations 1994 (Cth), regs.2.58, 4.02, Sch.2, cl.457.223 |
| Cases cited: Ahmad v Minister for Immigration & Border Protection & Anor [2015] FCAFC 182; (2015) 237 FCR 365 Dyankov & Ors v Minister for Immigration & Border Protection & Anor [2017] FCAFC 81; (2017) 251 FCR 93; (2017) 72 AAR 240 Federated Engine-Drivers & Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; (1911) 17 ALR 285 |
| Applicant: | PARAMVEER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 631 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 29 March 2018 |
| Date of Last Submission: | 29 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 27 September 2018 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr A Burgess |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 631 of 2017
| PARAMVEER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mr Paramveer Singh (“Mr Singh”), seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 25 October 2017. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant Mr Singh a Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa (“Work Visa”).
The Tribunal Decision appears in the Court Book (“CB”) at 78-81.
Background
The background to the Judicial Review Application is as follows:
a)on 14 May 2015 an application by “SSS WA GROUP PTY LTD” (“SSS WA”) to be approved as a standard business sponsor was approved by the Minister (“First Sponsorship Application”): Affidavit of Paramveer Singh sworn 22 November 2017 (“Mr Singh’s Affidavit”) at [4(a)];
b)on 13 September 2016 SSS WA lodged a nomination application (“First Nomination Application”) for Mr Singh for the position of restaurant manager: Mr Singh’s Affidavit at [4(b)];
c)on 14 September 2016 Mr Singh lodged an application for the Work Visa on the basis of sponsorship by SSS WA, Mr Singh having been employed as restaurant manager by SSS WA: CB 1-12 and CB 36;
d)on 14 November 2016 the First Sponsorship Application expired: Mr Singh’s Affidavit at [4(a)];
e)on 15 March 2017 SSS WA made application for a further standard business sponsorship approval (“Second Sponsorship Application”): CB 45;
f)on 10 August 2017 the Minister:
i)refused the Second Sponsorship Application: CB 48-50; and
ii)wrote to Mr Singh advising that SSS WA did not have an approved nomination for him and requested that Mr Singh comment on that information, a request to which Mr Singh did not respond: CB 51-53;
g)SSS WA lodged a further application for a standard business sponsorship approval (“Third Sponsorship Application”) on 25 August 2017: CB 67-70;
h)on 11 September 2017 the Delegate’s Decision was to refuse the Work Visa on the basis that Mr Singh was not the subject of an approved nomination and did not meet cl.457.223(4) of Sch.2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 54-59;
i)
on 22 September 2017 SSS WA lodged a further nomination application (“Second Nomination Application”): CB 67 and
71-73;
j)on 28 September 2017 Mr Singh, represented by a migration agent, applied to the Tribunal for review of the Delegate's Decision: CB 60-61;
k)on 3 October 2017 the Tribunal wrote to Mr Singh inviting his comment by 17 October 2017 on the validity of his application, as there was no approved nomination or sponsorship application with respect to the Work Visa, and there was no pending application for review of a related nomination or sponsorship application: CB 64;
l)on 17 October 2017 Mr Singh's representative responded to the Tribunal advising that SSS WA had lodged the Third Sponsorship Application and Second Nomination Application with the Minister: CB 67; and
m)on 26 October 2017 the Tribunal Decision was that it did not have jurisdiction to consider the matter, and therefore could not review the Delegate’s Decision: CB 76, 78 and 81 at [17].
Tribunal Decision
In the Tribunal Decision, the Tribunal:
a)noted it has jurisdiction to review a decision under the Migration Act if an application is properly made under ss.347 or 412 of the Migration Act and that ss.338 and 411 of the Migration Act and reg.4.02(4) of the Migration Regulations set out the range of decisions that are reviewable by the Tribunal and the circumstances in which they are reviewable: CB 79 at [2];
b)noted that its jurisdiction to review a Delegate’s Decision in relation to a Work Visa was only enlivened if the circumstances in s.338(2)(d) of the Migration Act are met, namely that Mr Singh must be sponsored by an approved sponsor at the time of application for review, or, that an application for review of a decision not to approve the sponsor has been made at the time of application and the outcome of that review is still pending: CB 79 at [3]-[4];
c)explained that this was because:
i)Mr Singh was “sponsored” if he was identified in a nomination pursuant to s.140GB of the Migration Act and, an approved sponsor is a person who has been approved, and that approval has not been cancelled or ceased to be effective, under s.140E of the Migration Act in relation to a visa class prescribed by reg.2.58 of the Migration Regulations: CB 79 at [5]; and
ii)Mr Singh was required to meet cl.457.223(4) of Schedule 2 of the Migration Regulations by being nominated by a standard business sponsor whose nomination must be approved under s.140GB of the Migration Act, furthermore it is a criterion of the Work Visa that Mr Singh be sponsored by an approved sponsor so the Delegate’s Decision came under s.338(2)(d) of the Migration Act: CB 79 at [6];
d)recorded that the Second Sponsorship Application was refused by a Delegate on 10 August 2017, thus SSS WA’s nomination of Mr Singh was administratively finalised at that date and SSS WA did not seek review of the decision to refuse the Second Sponsorship Application, and the Work Visa Application was finalised on 11 September 2017 because Mr Singh could not meet cl.457.223(4)(a) of the Migration Regulations: CB 80 at [9];
e)noted that it invited Mr Singh’s comment on 3 October 2017 and considered the response provided on 17 October 2017: CB 80 at [10]-[12];
f)considered Dyankov & Ors v Minister for Immigration & Border Protection & Anor [2017] FCAFC 81; (2017) 251 FCR 93; (2017) 72 AAR 240 noting that the words “sponsored by an approved sponsor” covered circumstances:
i)where at the time the review application is lodged the applicant is identified in an approved nomination made by a standard business sponsor, or is identified in a nomination application which has not yet been decided by the department: Migration Act, s.338(2)(d)(i); and
ii)where at the time the review application is lodged, the employer seeking to nominate the applicant has an application for review pending before the Tribunal in relation to a decision to refuse the employer status as a business sponsor, or in relation to a decision to refuse an application for approval of a nomination application in relation to Mr Singh: Migration Act, s.338(2)(d)(ii);
g)noted that it does not have jurisdiction where a nomination has been refused and there is no review sought by the sponsor, or a nomination has expired: CB 80 at [8];
h)found that whilst SSS WA had a pending sponsorship application and nomination application with the department in relation to Mr Singh, SSS WA did not have standard business sponsor status, and therefore Mr Singh was not the subject of an approved nomination at the time of the Tribunal review application: CB 81 at [14];
i)found that there was no pending review of the Second Sponsorship Application refusal decision made on 10 August 2017: CB 81 at [14];
j)held at the time of the Tribunal review application, Mr Singh was not identified in a nomination made by a standard business sponsor which had been approved or was pending: CB 81 at [15]; and
k)found that the Delegate's Decision was not reviewable under Parts 5 or 7 of the Migration Act and the Tribunal did not have jurisdiction in the matter: CB 81 at [16].
Judicial Review Application
Grounds
The applicant’s Judicial Review Application raised two grounds:
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.
Affidavit in support
Mr Singh filed an affidavit in support of the Judicial Review Application, which states:
a)that he is the applicant;
b)the nature of, and his dissatisfaction with, the Tribunal Decision; and
c)some of the factual background, which to the extent relevant is otherwise set out at [3] above.
Before the Court
At a directions hearing on 15 December 2017 a Registrar of this Court made orders (“Registrar’s Orders”) which provided an opportunity for Mr Singh to file any amended application, supporting affidavits and a written outline of submissions prior to the hearing listed on 29 March 2018. Mr Singh did not avail himself of the opportunity provided. At the hearing before the Court Mr Singh made no submissions of any substance or relevance, and Counsel for the Minister relied upon the Minister’s written submissions which had been filed in accordance with the Registrar’s Orders.
Consideration
The Tribunal Decision may be set aside upon judicial review by this Court if the Tribunal Decision is affected by jurisdictional error which affects the exercise of the relevant statutory power: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1.
The criteria Mr Singh was required to meet at the time of the Tribunal Decision were set out in cl.457.223(4)(a) of Sch.2 of the Migration Regulations as follows:
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…
Sections 140E and 140GB of the Migration Act relevantly provide as follows:
140E Minister to approve sponsor
(1) The Minister must approve a person as a sponsor in relation to one or more classes prescribed for the purpose of subsection (2) if prescribed criteria are satisfied.
(2) The regulations must prescribe classes in relation to which a person may be approved as a sponsor.
(3) Different criteria 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; and
(c) different classes of person within a class in relation to which a person may be approved as a sponsor.
140GB Minister to approve nominations
(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.
The definition of “approved sponsor” in s.5(1) of the Migration Act is 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
In Singh v Minister for Immigration & Border Protection [2018] FCA 186 at [16] per Derrington J (“Singh”) the Federal Court summarised the criteria for grant of the Work Visa as follows:
The relevant legislative regime concerning 457 Visas establishes that three applications are required to be approved for such a visa to, ultimately, be granted. They are, in summary:
(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.
Decisions reviewable by the Tribunal under Part 5 of the Migration Act are relevantly set out in s.338 of the Migration Act 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 use of the word “sponsored” in s.338(2)(d) of the Migration Act, specifically “sponsored by an approved sponsor,” is critical in determining if the Tribunal has jurisdiction. Under s.337 of the Migration Act, the meaning of “sponsored” is taken to have the same meaning as is prescribed in the Migration Regulations, relevantly here, reg.4.02(1AA) of the Migration Regulations which provides that:
For section 337 of the Migration Act, sponsored includes being identified in a nomination under section 140GB of the Migration Act.
In Singh at [19] per Derrington J the Federal Court, by reference to the judgment of the Full Court of the Federal Court in Ahmad v Minister for Immigration & Border Protection [2015] FCAFC 182; (2015) 237 FCR 365 (“Ahmad”) summarised the requirements under s.338(2)(d) of the Migration Act:
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.
It is the first duty of every court or tribunal to determine whether or not it has jurisdiction: Federated Engine-Drivers & Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; (1911) 17 ALR 285; CLR at 415 per Griffith CJ, 428 per Barton J and 454 per Issacs J; Re Boulton; Ex parte Construction, Forestry, Mining and Energy Union (1998) 85 IR 468; (1998) 73 ALJR 129 at 133 per Kirby J, including in migration proceedings: KRJF v Minister for Immigration & Anor [2018] FCCA 150 at [14] per Judge Lucev, and in this case it is only if the requirements of s.338(2)(d) of the Migration Act were met that the Tribunal would have had jurisdiction to review Mr Singh’s application: Singh v Minister for Immigration & Anor [2017] FCCA 2385 at [7] per Judge Riley.
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 conclusion by the Tribunal of a want of jurisdiction is consistent with the decision in Minister for Immigration & Border Protection v Lee [2014] FCCA 2881 where the relevant nomination had ceased before the application to the Tribunal for review, and the Court held that the Tribunal had no jurisdiction. This was approved as correctly decided on its facts in Ahmad at [111] per Katzmann, Robertson and Griffiths JJ. Similar circumstances were considered by the Court in Jean v Minister for Immigration and Border Protection [2016] FCCA 1029 (“Jean”) where the Tribunal determined that it did not have jurisdiction and the Court confirmed that was the correct decision: Jean at [31] per Judge Hartnett. It follows from all of the above that the Tribunal Decision was correct, and is not affected by jurisdictional error.
Conclusion and order
Based on the findings set out above the Court has concluded that the Tribunal Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 27 September 2018
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