Singh v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 251
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 251
File number(s): SYG 1676 of 2020 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 27 February 2025 Catchwords: MIGRATION – judicial review – whether Tribunal erred in finding it had no jurisdiction – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 338 and 347
Migration Regulations 1994 (Cth) reg 4.02
Cases cited: Australian Postal Corporation v Forgie (2003) 130 FCR 279; [2003] FCAFC 223
Boyjonauth v Minister for Immigration and Multicultural Affairs [2024] FCAFC 130; (2024) 305 FCR 15
Haider v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 216
Le v Minister for Immigration and Border Protection [2019] FCA 427
Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13
Phornpisutikul v Minister for Immigration and Border Protection [2016] FCCA 1934
Valma Elizabeth Buck v Comcare (1996) 66 FCR 358; [1996] FCA 1485
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 29 November 2024 Place: Sydney Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Teleo Immigration Lawyers Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
SYG 1676 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWALJOT SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application filed on 13 July 2020 is dismissed.
2.The name of the second respondent be amended to ‘Administrative Review Tribunal’.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE PAPADOPOULOS
INTRODUCTION
Before the Court is an application filed on 13 July 2020, made under s 476 of the Migration Act 1958 (Cth) (Act), seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 June 2020.[1] By that decision, the Tribunal found that it had no jurisdiction to consider the application for review of a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Subclass 457 Temporary Work (Skilled) (Class UC) visa (Subclass 457 visa).
[1] Court Book (CB) 151 to 152.
For the following reasons, the application is dismissed.
BACKGROUND
The parties helpfully summarised the background and procedural history to the case in their respective written submissions filed in November 2024, which I primarily adopt.
Mr Singh (applicant) is a male national of India who on 20 June 2017 lodged an application for the Subclass 457 visa on the basis that he had been nominated for the position of ‘Welder’ by his sponsor Adex Group Pty Ltd (sponsor).[2]
[2] CB 15 to 26.
On 25 June 2017, the applicant arrived in Australia as the holder of a Subclass 020 Bridging (Class WB) visa.[3]
[3] CB 79.
On 9 March 2018, the delegate made a decision to refuse to grant the applicant the Subclass 457 visa. The applicant was notified of that decision by way of letter dated 9 March 2018 (notification).[4] The delegate was not satisfied that the applicant had met the requirements of cl 457.221A in Part 457 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
[4] CB 76 to 81.
The review application
On 28 March 2018, the applicant applied to the Tribunal for review of the delegate’s decision.[5] An online Tribunal application form entitled ‘eM1 – Application for review to the Migration and Refugee Division’ (online review application form) was used to make the application. Under the heading ‘Details of person applying for review 1’ in the online review application form, the applicant’s name, date of birth, passport number, gender, nationality, address and other personal details were inserted. Under the same heading in the ‘Capacity to apply for review’ section, the ‘Visa applicant(s)’ dropdown menu option was selected. A copy of the notification and delegate’s decision were attached to the online review application form.
[5] CB 82 to 87.
On 29 March 2018, the Tribunal sent correspondence to the applicant acknowledging receipt of the application. The letter relevantly stated:[6]
Please note that the validity of your application has not yet been assessed. We can only review a decision if a valid application for review has been made. You will be advised if it appears that your application may not be valid.
[6] CB 90.
On 7 June 2018, the applicant’s representative wrote to the Tribunal seeking a fee reduction for the applicant.[7] Attached to this correspondence were a number of documents including, a bank statement for an account in the applicant’s name, a tax invoice, a Visa Entitlement Verification Online check, a statement from a Mr Ravinder Singh, and various receipts for purchases made at grocery and retail stores. On 21 June 2018, the Tribunal granted the fee reduction.[8]
[7] CB 96 to 97.
[8] CB 114 to 116.
On 1 October 2019, the applicant’s representative sent an email to the Tribunal in which a request was made for access to written material pursuant to s 362A of the Act. In so doing, reference was made to the Tribunal case number along with confirmation from the representative that the name of the applicant in that case was ‘Awaljot Singh’ and that the representative was acting on his behalf.[9]
[9] CB 119 to 120.
On 2 March 2020, a colleague of the applicant’s representative sent an email to the Tribunal, attached to which was a completed Tribunal review application form entitled ‘Application for review – Migration (For persons not in immigration detention and organisations) (M1)’ (M1 form), a copy of the notification and the delegate’s decision.[10] Under the heading ‘Part B – Details of the organisation applying for review’ in the M1 form, various details were provided in relation to Adex Group Pty Ltd including its organisation name, trading name, ABN, business address and contact details. Further, under the heading ‘Part D – Your capacity to apply for review’ and in response to question 16 ‘What is your capacity to apply for review?’, the applicant’s representative selected ‘The sponsor or nominator’. The email from a colleague of the applicant’s representative was addressed to a Tribunal officer and relevantly stated (personal information redacted):[11]
We refer to your phone call to our office earlier today and your conversation with [the representative].
Thank you for confirming that the case is open and we can submit an M1 form under the employer’s name as the review applicant (rather than the visa applicant who was offshore at the time of the visa application).
[10] CB 128 to 138.
[11] CB 126.
On 21 April 2020, the Tribunal issued an invitation to comment on the validity of the application for review.[12] The invitation to comment, relevantly stated:[13]
The Tribunal had formed the preliminary view that your application was not a valid application as the person who is entitled to apply to us in relation to this decision is the sponsor or nominator.
On 2 March 2020 your representative was advised by telephone of the court judgment, DFQ17 v Minister for Immigration [2019] FCAFC 64 (18 April 2019), which identified problems with the validity of the notification letter issued by the Department of Home Affairs for failing to clearly state the time period within which an application for review must be made. He was informed that in light of this judgment your case had been re-assessed and it appeared that the Tribunal had jurisdiction to accept your application.
On 2 March 2020, the Tribunal received an amended form. However, there has been a further court judgment Singh v Minister for Immigration [2020] FCAFC 31 (28 February 2020). The notification letter issued to you by the Department of Home Affairs has been re-assessed following this judgment. It would appear that you were validly notified under the Migration Act 1958, with the consequence that your application for review was not valid as the person who is entitled to apply to us in relation to this decision is your sponsor or nominator. You are not such a person, and I am therefore of the view that your application is not a valid application. However, this is a matter which must be determined by a Member.
If you wish to provide any comments on the validity of your application, please give them to the Tribunal by 5 May 2020.
[12] CB 140 to 142.
[13] CB 141.
On 5 May 2020, the representative provided a response to the Tribunal’s invitation to comment that contained the following relevant submissions (reproduced without alteration):[14]
Even though the original online application form inadvertently named the visa applicant as the person seeking review, given that the delegate’s decision is attached to the form, it is clearly an application seeking to engage the Tribunal’s jurisdiction to review that decision. Having regard to the decision sought to be reviewed, it is necessarily an application “made by” the sponsor.
This situation is similar to the recent case of Le v The Minister for Immigration and Border Protection [2019] FCA 427 where the identical form was construed in this way notwithstanding that the review applicant was improperly identified as the sponsor in that case (which construction was recently cited by the Full Court in Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64 at [103]).
Having regard to the decision sought to be reviewed, it is necessarily an application “made by” the sponsor Adex Group Pty Ltd (see Le at [88]-[90]). In the alternative, an application that one should construct was validly “made by” the sponsor Adex Group Pty.
We now ask the Tribunal to accept the original review application lodged on 28 March 2018 is a valid application, naturally with the sponsor/nominator as a review applicant.
[14] CB 143 to 147.
The Tribunal’s decision
On 9 June 2020, the Tribunal found that it did not have jurisdiction to review the application and notified the applicant of its decision on 10 June 2020.[15] In considering whether it had jurisdiction to review the application, the Tribunal:
(a)noted that in relation to a reviewable decision described within s 338(9) of the Act, and pursuant to subreg 4.02(4)(l) of the Regulations, an application for review may only be made by the sponsor, rather than the visa applicant.
(b)acknowledged the representative’s submission that the application had ‘sufficient and clear’ information to constitute an application made by the sponsor as it was accompanied by the delegate’s decision and there was a ‘clear intention’ to engage the Tribunal’s jurisdiction in relation to that decision.
(c)formed the view that the circumstances in Lev Minister for Immigration and Border Protection [2019] FCA 427 (Le) were distinguishable because in the present case:
(i)the online application form only included the visa applicant’s details and there did not appear to be sufficient information to indicate that it was the sponsor who was seeking to make an application for review; and
(ii)the visa applicant subsequently applied for a reduction of the fees, which also suggested that it was the visa applicant, and not the sponsor, who sought review.
(d)found that it was the visa applicant, and not the sponsor, who made an application for review, and therefore the application for review was not an application properly made pursuant to s 347 of the Act.
[15] CB 150 to 152.
RELEVANT LEGISLATION
When the application for review was purportedly made, section 347 of the Act relevantly provided:
347 Application for review of Part 5‑reviewable decisions
(1) An application for review of a Part 5‑reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or
(ii) if the Part 5‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or
(iii) if the Part 5‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by:
(a) if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—the non‑citizen who is the subject of that decision; or
(b) if the Part 5‑reviewable decision is covered by subsection 338(5) or (8)—the sponsor or nominator referred to in the subsection concerned; or
(c) if the Part 5‑reviewable decision is covered by subsection 338(6) or (7)—the relative referred to in the subsection concerned; or
(d) if the Part 5‑reviewable decision is covered by subsection 338(9)—the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.
When the application for review was purportedly made, reg 4.02 of the Regulations relevantly provided:
4.02 Part 5‑reviewable decisions and who may apply for review
…
(4) For subsection 338(9) of the Act, each of the following decisions is a Part 5‑reviewable decision:
…
(l) a decision to refuse to grant a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa to a non‑citizen if:
(i) the non‑citizen is outside Australia at the time of application; and
(ii) the non‑citizen was sponsored or nominated, as required by a criterion for the grant of the visa, by:
(A) an Australian citizen; or
(B) a company that operates in the migration zone; or
(C) a partnership that operates in the migration zone; or
(D) the holder of a permanent visa; or
(E) a New Zealand citizen who holds a special category visa;
…
(5) For paragraph 347(2)(d) of the Act, an application for review of a decision mentioned in subregulation (4) may only be made by:
…
(k) in the case of a decision to which paragraph (4)(l) relates—the sponsor or nominator;
…
PROCEEDINGS IN THIS COURT
The application for judicial review, filed in this Court on 13 July 2020, contains one ground of review (reproduced without alteration):
The Tribunal erred in its conclusion that it did not have jurisdiction to hear this matter.
Particulars
1.The Tribunal erred in its decision to find that it did not have jurisdiction, as the application filed with the AAT on 28 March 2018 named the visa applicant as the review applicant, rather than the sponsor (in accordance with Regulation 4.02(5)(k)), as it had sufficient information to constitute a valid application for review of the delegate’s decision.
2.The information on record was sufficient given that the delegate’s decision and its notification documents were attached to the review application filed with the AAT. These documents clearly demonstrated that it was an application seeking to engage the Tribunal’s jurisdiction to review the delegate’s decision. Having regard to the decision sought to be reviewed, it is necessarily an application “made by” the sponsor (Le v The Minister for Immigration and Border Protection [2019] FCA 427 at [88]-[90].
It is not in dispute that it was the sponsor, rather than the applicant, who could have sought review at the Tribunal: see Phornpisutikul v Minister for Immigration and Border Protection [2016] FCCA 1934 at [7] to [13] per Judge Smith.
Accordingly, the principal issue before the Court is whether the application for review had been properly made by the sponsor. The applicant approached that issue by way of making two arguments which are examined below.
THE APPLICANT’S PRIMARY ARGUMENT
Applicant’s submissions
The applicant submits that, as was the case in Le, the name of the visa applicant had been mistakenly inserted in the online review application form rather than the name of the sponsor.
The applicant submits that because the notification and delegate’s decision were attached to the online review application form when it was uploaded through the Tribunal’s online application portal, it would have been apparent to the Tribunal that the appropriate review applicant was the sponsor. The applicant further notes that:
(a)the decision, in respect of which the application was seeking to invoke the jurisdiction of the Tribunal, stated that the applicant made a valid subclass 457 visa application while he was outside Australia on 25 June 2017; and
(b)the notification letter clearly stated that the sponsor was entitled to apply to the Tribunal for merits review of the decision.
Accordingly, the applicant contends that in all the circumstances, given what was apparent from the delegate’s decision that had been attached to the online review application form, the Tribunal should have been satisfied the application was being made by the sponsor.
The applicant further submits that the present case is not entirely comparable with Haider v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 216 (Haider), on the basis that the decision sought to be reviewed in Haider was identified as the nomination refusal rather than the visa refusal.
Minister’s submissions
The Minister submits that there is nothing in the application for review that makes it apparent that it was the sponsor, rather than the applicant, who was either seeking review or had any intention to seek review.
In support of that submission, the Minister contends that the circumstances of the present case are distinguishable from those before the Court in Le. To that end, and by way of reference to Haider, the Minister drew my attention to the following factors that distinguish the present case from Le:
(a)first, the sponsor’s details or its client ID did not appear at all on the online review application form;
(b)secondly, there was accordingly no reason to infer that the sponsor intended to seek review;
(c)thirdly, it was only once the M1 form was provided to the Tribunal on 2 March 2020 that the suggestion could arise that the representatives acted for both the applicant and the sponsor; and
(d)finally, as noted by the Tribunal, following the provision of the online review application form and its attachments to the Tribunal on 28 March 2018, the applicant’s representative sought a fee waiver on behalf of the applicant and not the sponsor.
Consideration
As observed by Greenwood J in Le at [83]:
The Tribunal must look to the entirety of the form and take into account in an evaluative way all of the information recited in the form and have regard to the documents uploaded with it in order to decide whether the application is made by the non-citizen who is the subject of the decision covered by s 338(2), in all the circumstances reflected in the form by which the application for review is made.
Having closely examined the online review application form and its attachments, including the notification and the delegate’s decision, it is not clear in all the circumstances reflected in the form that it is the sponsor who was making that review application. I acknowledge that the notification and delegate’s decision contained information that was provided for the purpose of alerting the applicant to the fact that the sponsor was entitled to seek merits review. However, I am unprepared to infer that the attachment of those two documents to the online review application form enables an inference to be drawn that the sponsor was seeking review. In reaching that finding, it cannot be ignored that there is nothing in the evidence to suggest that the sponsor had authorised the applicant, or the representative, to make the review application on its behalf on 28 March 2018.
There is considerable force in the Minister’s submissions to the extent they seek to draw a clear distinction between the facts in the present case to those in Le. In particular, details of the person entitled to merits review appeared within the review application form in Le, albeit in another part of the form. The absence of any such information relating to the sponsor within the online review application form in the present case, or other information provided to the Tribunal indicating the sponsor’s intention to seek review before the period in which a review application could be made ended, leads me to conclude that the determination made by the Tribunal on the issue of jurisdiction was open to it.
Accordingly, no jurisdictional error is established by this ground of review.
THE APPLICANT’S ALTERNATIVE ARGUMENT
Applicant’s submissions
The applicant submitted, in the alternative, that the Tribunal’s jurisdiction is invoked in circumstances where an applicant:
(a)met the requirements of s 347(1) during the period in which a review application could be made; and
(b)met the requirements of s 347(2) after that period ended and before the Tribunal made its decision.
The applicant contends that the precise identity of the review applicant can be satisfied after the time for filing has elapsed. In support of that argument, the applicant maintains that such a construction serves the beneficial purpose of the legislation and accommodates the principle that where there may be doubt as to Parliament’s intention, the courts should favour an interpretation which safeguards the individual. In that regard, the applicant relies on Australian Postal Corporation v Forgie (2003) 130 FCR 279; [2003] FCAFC 223 and Valma Elizabeth Buck v Comcare (1996) 66 FCR 358; [1996] FCA 1485.
The applicant maintains that a similar approach was taken by the High Court in Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13 (Miller), where it found that there was no discernible legislative purpose to invalidate an application for review which fails to comply with the requirement in s 29(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) that the application for review contain a statement of the reasons for the application.
The applicant further maintains that this ameliorative approach is consistent with how the law treats mistakes in the identity of applicants in civil proceedings. By way of example, the applicant drew my attention to s 65 of the Civil Procedure Act 2005 (NSW) and submitted that it ‘enables the Court to change the name of a plaintiff prior to judgment even if the limitation period has expired’.
Minister’s submissions
The Minster submits that a contention that compliance with s 347(1) of the Act is sufficient to invoke the Tribunal’s jurisdiction, and that compliance with s 347(2) of the Act can be satisfied after the time for filing has elapsed, is incorrect.
Referring to Haider and Le, the Minister notes that the Court in each of those cases held that it was essential that the person with standing, pursuant to s 347(2), was the person who sought review in the Tribunal. If, as a matter of fact, the person with standing did not make the application, then the Tribunal would not have jurisdiction. This was the outcome in Haider.
The Minister observes that the applicant has not identified any authority in support of their argument and submits that, on a plain reading of s 347 of the Act, all of the matters set out in s 347 must be satisfied to engage the Tribunal's jurisdiction. The Minister argues that this interpretation is consistent with the Full Court’s decision in Boyjonauth v Minister for Immigration and Multicultural Affairs [2024] FCAFC 130; (2024) 305 FCR 15 (Boyjonauth), where Thawley, Rofe and Kennett JJ found that compliance with s 347(1)(c) was essential to the making of a valid review application. The Minister contends that the language of s 347(2) is similarly imperative – '[a]n application for review may only be made by…' (emphasis added). As stated in Boyjonauth at [63(a)], s 347 ‘imposes requirements on an application, as to form and timing (subs (1)) and who may make the application (subs (2)-(4))’. Further, for the reasons given in Boyjonauth at [64] and [79], s 347 cannot be said to be remedial legislation to be construed beneficially as the applicant submits. The application for review in the Tribunal could only have been made by the sponsor, but it was not. The applicant did not have standing to seek review, and the proposition that the issue of standing could be resolved by the substitution of one applicant for another after the application had been made, should be rejected.
Consideration
I am persuaded by the Minister’s submissions on this point. In particular, there is considerable force in the submission that, on a plain reading of s 347 of the Act, all of the matters set out in s 347 must be satisfied to engage the Tribunal’s jurisdiction. I note that in construing the operation of ss 347 and 348 of the Act when determining the basis upon which the Tribunal’s duty to review an application is engaged, the Court in Boyjonauth did not distinguish between the sub-sections within s 347 in the manner the applicant contends. Instead, the Court relevantly construed these provisions at [63] in a manner whereby each of the elements within s 347 are to be met in order for a valid review application to be made such that the Tribunal’s jurisdiction is enlivened for the purposes of s 348:
[63] The correct understanding of these provisions emerges from their terms and from the reasoning in Fahme discussed above:
(a) Section 347 does not in its terms “provide that application may be made”, let alone confer authority to decide on the Tribunal in respect of such applications. It imposes requirements on an application, as to form and timing (subs(1)) and who may make the application (subss (2) to (4)).
(b) Section 348(1) identifies the circumstances in which the Tribunal ‘must’ review the decision (ie, where an application is “properly made”). No other provision confers authority to decide.
I am entirely unpersuaded by the applicant’s contentions on this point. First, the jurisdiction provisions within Part 5 of the Act are clear and, in my view, there can be no doubt as to Parliament’s intention such that s 347 provides a clear requirement for the making of valid review applications on the basis of how they should be made, when they should be made and who may make them. The mandatory language in ss 347(1) and (2) makes it tolerably clear that the requirement in each sub-section is to be met during the period in which a review application must be made in order to enliven the Tribunal’s jurisdiction. This construction was supported in Le at [91]-[93]. Second, while Miller can be readily distinguished on the basis that it relates to a different legislative regime, it otherwise favours the Minister. In Miller, the High Court maintained that the applicant’s failure to provide a statement of reasons for their review application was not fatal to the making of a valid review application as it was not a failure to provide information as to ‘any objective circumstance’ but was at most a failure to provide information as to why the applicant believes that the decision sought to reviewed is not the correct or preferable decision. In the present case, the applicant’s precise identity is an ‘objective circumstance’ which is clearly relevant to the Tribunal’s understanding of whether its jurisdiction has been enlivened by the person entitled to seek review. Third, while ameliorative statutory provisions, such as s 65 of the Civil Procedure Act 1995 (NSW), may well serve to assist applicants in other contexts, there are no similar provisions within Part 5 of the Act that can assist the applicant here and any such absence does not mandate a more ameliorative or beneficial construction of s 347 of the Act when that provision is clear on its terms.
Accordingly, no jurisdictional error is established by way of the applicant’s alternative argument.
CONCLUSION
The application filed on 13 July 2020 is dismissed.
Finally, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024(Cth), the name of the second respondent is to be amended to ‘Administrative Review Tribunal’.
I will hear the parties as to costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 27 February 2025
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