Singh v Minister for Immigration and Border Protection
[2018] FCA 186
•28 February 2018
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2018] FCA 186
Appeal from: Singh v Minister for Immigration & Anor [2017] FCCA 2385 File number(s): VID 1004 of 2017 Judge(s): DERRINGTON J Date of judgment: 28 February 2018 Catchwords: MIGRATION – Appeal from decision of the Federal Circuit Court of Australia dismissing an application for leave to appeal a decision of the AAT – criteria to grant a 457 Visa not satisfied Legislation: Migration Act 1958 (Cth)
Federal Circuit Court of Australia Rules 2001 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Rawson Finances Pty Ltd v Commissioner of Taxation (2010) 81 ATR 36
Sekigawa v Minister for Immigration and Border Protection (2016) 237 FCR 276
Singh v Minister for Immigration & Anor [2017] FCCA 2385
Date of hearing: 28 February 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 30 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondents: Mr A Cunynghame of Sparke Helmore Lawyers ORDERS
VID 1004 of 2017 BETWEEN: JAGJIT SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DERRINGTON J
DATE OF ORDER:
28 FEBRUARY 2018
THE COURT ORDERS THAT:
1.Leave to appeal is refused.
2.The applicant pay the respondents’ costs of the application to be taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DERRINGTON J:
Introduction
This is an application for leave to appeal from a decision of the Federal Circuit Court of Australia handed down 4 September 2017. That Court dismissed an application for judicial review made by Mr Jagjit Singh, who had applied for the review of a decision of the Migration & Refugee Division of the Administrative Appeals Tribunal (the Tribunal) dated 8 December 2016.
The Tribunal had concluded it did not have jurisdiction to review the decision of a Delegate of the Minister for Immigration and Border Protection not to grant Mr Singh a Class UC (temporary Business Entry) subclass 457 visa (457 Visa) and refused Mr Singh’s application for review.
Background
Relevantly, for the purposes of this matter Mr Singh applied for a 457 Visa on 18 March 2016. He had, previously, applied for, and received, a 457 Visa, however, it was due to expire on 20 March 2016. The Minister’s Delegate refused Mr Singh’s application for a second 457 Visa.
On 31 October 2016, the applicant applied to the Tribunal for a review of the delegate’s decision not to grant him a 457 Visa. On 16 December 2016, the Tribunal determined that it did not have jurisdiction under the Migration Act 1958 (Cth) (the Act) to review the decision. Section 338(2) of the Act outlines the circumstances that enliven the jurisdiction of the Tribunal to review a decision to refuse a 457 Visa. Sub-sections (a), (b) and (c) were satisfied as the applicant was within the migration zone when his application was lodged; he was not in immigration clearance; and, he had not been refused immigration clearance.
What remained was s 338(2)(d), which contained certain criteria relating to the sponsorship of the applicant for a 457 Visa namely:
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 is pending.
Prior to its determination, the Tribunal contacted the applicant and informed him – via his migration agent – that it was the Tribunal’s preliminary view that it did not have jurisdiction because s 338(2)(d) could not be satisfied. It was identified that the applicant was not (a) identified in a nomination under s 140GB of the Act that was approved or that was pending; nor, (b) was there a pending application for review before the Tribunal of either a decision not to approve his sponsoring employer under s 140E of the Act, or a decision not to approve its nomination of the applicant under s 140GB of the Act. In other words, he did not have a sponsor and nor was there pending any application to review a decision not to approve a sponsor.
No additional information was forthcoming on this issue.
The Tribunal determined (at [11] of its Reasons), as it was required to in the circumstances, that at the time the application for a 457 Visa was lodged the applicant was not subject to an approved nomination. Further, there was no application in relation to any nomination of the applicant. As a result s 338(2)(d) of the Act was not satisfied. The Tribunal, thereupon, correctly held that it did not have jurisdiction to review the initial decision of the Delegate to refuse a 457 Visa.
The applicant, subsequently, filed an appeal in the Federal Circuit Court of Australia, on 3 January 2017, and alleged that the Tribunal made a jurisdictional error on three grounds:
(a)That the Tribunal had erred in law and therefore fell into jurisdictional error in not applying s 338 of the Act correctly as a whole.
(b)That the Tribunal had erred in law and therefore fell into jurisdictional error in not affording the applicant procedural fairness insofar as:
(i)summarily dismissing the applicant’s review application;
(ii)not conducting a full and final hearing; and
(iii)not obtaining verbal evidence from the applicant to assess the merits of the review application.
(c)That the Tribunal erred in law and therefore fell into jurisdictional error by failing to consider all of the evidence before it by:
(i)discounting the evidence before them that indicated that the Delegate had incorrectly assessed the position relating to the applicant’s nomination as ‘not genuine’;
(ii)failing to consider the evidence in totality and cumulatively; and
(iii)accepting the implication made by the Delegate, without proper investigation, that implied that the applicant was only seeking a ‘migration outcome’ in making his visa application.
The Minister made an application for summary dismissal of the application for review.
In relation to the first ground, the learned primary judge (at [6]) considered the provisions of s 338(2)(d) of the Act and noted that ‘[i]t is only by meeting that provision that the Tribunal could have had jurisdiction to review the [appellant’s] application for a subclass 457 visa’ (Singh v Minister for Immigration & Anor [2017] FCCA 2385, [7]). In the matter before the Court the appellant’s sponsor’s nomination had been refused and there was no pending application in relation to that refusal. For that reason, the trial judge determined that the Tribunal correctly held s 338(2)(d) was not satisfied and that it did not have jurisdiction. The Tribunal did not make any error in reaching that conclusion. Therefore the first ground of appeal failed.
In relation to the second ground, the trial judge found that the Tribunal did not summarily dismiss the application. Rather, the Tribunal determined it did not have jurisdiction to hear the matter and it was for that reason that the Tribunal did not proceed to conduct a full and final hearing. Necessarily, given that it lacked jurisdiction to hear the matter, it was not entitled to hear the evidence of the appellant or his witnesses.
In relation to the third ground, the trial judge decided that the first and third aspects related to the sponsorship nomination itself and not to the appellant’s application for a 457 Visa. A consideration of those aspects was not something of which the Tribunal might have inquired into. The submission that the Tribunal failed to consider the evidence in totality and cumulatively – the second aspect of ground three – also failed because the Tribunal did not have jurisdiction to hear the matter. It did not have jurisdiction to consider the individual elements of the claim nor all of the elements in a cumulative manner. In terms of evidence, the Tribunal considered what it ought: the evidence that went to its jurisdiction.
After reviewing each ground of appeal, the learned trial judge was not satisfied there was an arguable case and dismissed the appeal in accordance with r 44.12(1)(a) of the Federal Circuit Court of Australia Rules 2001 (Cth).
Consideration
At the outset it is, perhaps, worth noting that, pursuant to the Act, non-citizens are not “entitled” to a visa or visa of their choice. The decision of the Minister (or their delegate) to grant a visa is discretionary (s 29(1) of the Act). That is, the Minister may grant a visa in certain circumstances. Those circumstances are dependent on the type of visa for which an application is made and the Act prescribes the requirements must be satisfied in order to enliven the Ministerial discretion to grant a visa.
Here, the appellant applied for a 457 Visa on 18 March 2016. 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.
The appellant had, prior to the application in question, applied for, and received, a 457 visa that was due to expire on 20 March 2016. In the ordinary course one might think that the appellant was familiar with the application process and visa requirements. For his first application, the appellant satisfied those visa requirements.
However, quite evidently the appellant did not satisfy the necessary criteria in relation to his second application and, that being so, the Tribunal did not have jurisdiction to review the decision. The Tribunal correctly interpreted and applied s 338(2)(d) of the Act.
The Tribunal referred to Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365, a decision of the Full Court of the Federal Court, in support of its conclusion in relation to s 338(2)(d). Ahmad predominantly concerned the correct interpretation of that provision, rather than its application as is the case here. Nonetheless, the decision sets out, decisively, what s 338(2)(d) requires. Specifically, that:
(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)(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.
Those preconditions were, helpfully, extracted from Ahmad and cited in the reasons of the Tribunal at [10]. They are prescriptive and because they were not satisfied in this case the Tribunal did not have jurisdiction to review the decision of the Minister’s delegate.
The decision from which the appellant appeals – a decision of the Federal Circuit Court – was interlocutory, such that leave to appeal to this Court is required and has been sought pursuant to r 35.11 of the Federal Court Rules 2011 (Cth). The test for whether leave to appeal should be granted is set out by the Full Court of the Federal Court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In that decision, the court held a court must consider:
(a)whether, in all circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the court; and
(b)whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
Those requisites are cumulative, so the applicant must satisfy both (see Rawson Finances Pty Ltd v Commissioner of Taxation (2010) 81 ATR 36, 38 at [5]; Sekigawa v Minister for Immigration and Border Protection (2016) 237 FCR 276, 279 at [12]).
The Grounds of Appeal
The following matters are set out as grounds of appeal:
(a)That the learned judge in the Federal Circuit Court erred in law and therefore fell into jurisdictional error by not affording the applicant procedural fairness or natural justice insofar as:
(i)summarily dismissing his review application;
(ii)not conducting a full and final hearing.
(b)The learned judge in the Federal Circuit Court erred in law and therefore fell into jurisdictional error by failing to properly consider the evidence before them, by:
(i)discounting the evidence that indicated that the Minister’s delegate had incorrectly assessed the applicant’s nomination as ‘not genuine’;
(ii)failing to consider the evidence in totality and cumulatively;
(iii)falsely 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;
(iv)displaying bias against the applicant.
The nature of the applicant’s complaint in relation to the summary dismissal of this application is not clear. If the applicant’s complaint is that the absence of a full hearing in relation to his entitlement to a 457 Visa was an error it is misconceived. The only relevant issue before the Federal Circuit Court was whether the Tribunal was in error in concluding that it had no jurisdiction to hear the application. This was necessarily limited to the question of whether s 338(2)(d) had been satisfied; namely, whether the applicant is the subject of an approved nomination or a nomination application which is pending or under review. Once the Federal Circuit Court concluded that the Tribunal correctly held that s 338(2)(d) was not satisfied and that it had no jurisdiction, the Court was correct not to proceed to consider any merits of the application.
As to the ground of appeal concerning the failure of the Federal Circuit Court to properly consider the evidence before it, the first and third aspects of that ground relate to the sponsorship nomination, not the applicants 457 Visa application. The Court below correctly decided that it was not required to consider evidence in relation to that matter because it was not relevant, nor for that matter did the applicant have standing to bring such an application. Mr Singh’s sponsor was required to make an application in relation to its nomination.
In relation to the second and fourth aspects: there is no indication that the Court failed to consider the little evidence before it in totality or cumulatively, nor is there indication that the Court below displayed bias against the applicant.
The learned Federal Court judge considered the material which was appropriate to ascertaining whether the Tribunal correctly determined that it did not have jurisdiction to review the delegate’s decision. It was right not to consider any additional material.
Conclusion
None of the grounds raised by the applicant have been established such that the decision at first instance is not attended by sufficient doubt to warrant its reconsideration by this Court. The decision of the Federal Circuit Court was palpably correct.
As was noted by the Court below, ‘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’ (at [21]). Mr Singh was not completely unfamiliar with the process involved with being granted a 457 Visa process: he had been granted one before. Moreover, the applicant was notified by the Tribunal before it made its decision that on its preliminary view, it did not consider that it had jurisdiction.
No jurisdictional error has been established by the applicant in relation to the decision of the Tribunal, nor in the reasons of the judge below. The appeal must, therefore, be dismissed.
The orders of the Court are that:
1.Leave to appeal is refused.
2.The applicant pay the respondents' costs of the application.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington. Associate:
Dated: 28 February 2018
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