Szabo v Minister for Immigration and Border Protection
[2014] HCATrans 226
[2014] HCATrans 226
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S235 of 2014
B e t w e e n -
ZOLTAN SZABO
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Defendant
Directions
GAGELER J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON MONDAY, 13 OCTOBER 2014, AT 9.03 AM
Copyright in the High Court of Australia
MR N.J. DOBBIE: May it please your Honour, I appear for the plaintiff. (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)
MR H.P.T. BEVAN: May it please the Court, I appear for the defendant. (instructed by Australian Government Solicitor)
HIS HONOUR: There is a question about remitter, as I understand it.
MR DOBBIE: There is, your Honour. It is quite a peculiar circumstance. The decision on which the present challenge has been made was a decision to refuse the plaintiff a subclass 457 visa. The Migration Review Tribunal was the Tribunal entrusted with jurisdiction to review a decision to refuse a subclass 457 visa. Your Honour, that obligation is entrusted by Parliament in section 338(2) of the Act. I think a copy of the relevant section was attached to my friend’s submissions.
HIS HONOUR: Yes, I actually have the Act with me.
MR DOBBIE: Section 338(2). However, subparagraph (d) of 338(2) states:
where it is a criterion for the grant of the visa that the non‑citizen is sponsored by an approved sponsor –
and in this case, your Honour, it is an approved sponsor -
and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph –
and the subclass 457 visa is one that is so prescribed -
(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 –
In this case, there was no approved sponsor at the time of the decision, 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.
Neither of those circumstances exists in relation to the present application.
HIS HONOUR: So you say that paragraph (d) is engaged in the sense that this is a visa where a criterion for the grant of the visa – what, to the plaintiff?
MR DOBBIE: Yes, it is a very odd provision.
HIS HONOUR: Is that the plaintiff be sponsored by an approved sponsor?
MR DOBBIE: Yes. For the Tribunal to have jurisdiction to review the refusal of the subclass 457 visa, one of two alternatives must be in place. Either, there is an approved sponsor already and it is merely the visa applicant’s criteria that have to be met as approved to the sponsor being approved, or the sponsorship of the nominating business has been refused and that nominating business has sought review to the Tribunal before the visa applicant seeks review of his decision. The problem we have in the present case – and it is one of construction – is the Migration Act itself and section 476 of the Act speaks to the jurisdiction of the Federal Circuit Court.
HIS HONOUR: Yes.
MR DOBBIE: The Federal Circuit Court, unfortunately, does not have jurisdiction to review a primary decision.
HIS HONOUR: Yes.
MR DOBBIE: A primary decision under section 476(4) is defined as:
a privative clause decision or purported privative clause decision:
(a)that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b)that would have so reviewable if an application for such review had been made within a specified period.
The problem of construction is that section 338 does permit review of a subclass 457 visa refusal but paragraph (d)(i) and (ii) do not permit review when neither of those circumstances set out in (i) and (ii) are met.
HIS HONOUR: Would not the effect of that be that this would not be an MRT‑reviewable decision?
MR DOBBIE: Well, it is MRT reviewable but it is not in the particular circumstances of the case. So you have a situation where a decision could
be primary if there is no approved sponsor but not primary if there is an approved sponsor.
HIS HONOUR: Now, can I just take you back to the facts for a moment?
MR DOBBIE: Yes.
HIS HONOUR: You have filed an affidavit which I have seen.
MR DOBBIE: Yes. I would seek to read that affidavit, your Honour.
HIS HONOUR: Yes. I take it that there is no objection to the reading of that affidavit.
MR DOBBIE: Of Zoltan Szabo filed on 3 September 2014.
HIS HONOUR: So I take that affidavit as read. Now, that annexes the decision.
MR DOBBIE: Yes, your Honour.
HIS HONOUR: It does not tell me very much about the application. As you say, this is an unusual case. It raises some extremely technical questions. Having looked at the Migration Regulations before coming to Court, it appears that your client would need to satisfy the relevant secondary criteria for the grant of the visa.
MR DOBBIE: Yes.
HIS HONOUR: Now, of course it is part of the primary criteria that the primary applicant be sponsored.
MR DOBBIE: Yes.
HIS HONOUR: It appears to me at the moment that it is not necessarily part of the secondary criteria that the secondary applicant be sponsored. It depends, as I read it, on whether or not the applicant is included in any nomination that is required in respect of the primary applicant and I just do not know enough about the case to understand what the position is.
MR DOBBIE: Your Honour, my friend has anticipated this.
MR BEVAN: Your Honour, just by way of evidence, can I tender two documents on this application?
HIS HONOUR: Yes.
MR BEVAN: I will hand them both to your Honour at the same time. Does your Honour have the document, Business Nomination visa?
HIS HONOUR: Yes, I do.
MR BEVAN: Your Honour will see there are certain reference numbers – I do not have the application to tender but if your Honour will bear with me. If your Honour on that document turns to page 7 and at the bottom “Details of secondary visa applicants” ‑ ‑ ‑
HIS HONOUR: Yes.
MR BEVAN: The question:
Do you agree to include these people as secondary sponsored applicants?
Yes –
If your Honour turns over the page, your Honour will see the name of the plaintiff on the top of page 8, and so it has been included as part of any business nomination by the entity, the number of which appears on the front page. The second document, however, is a document dated 17 July 2014.
HIS HONOUR: Yes.
MR BEVAN: That is addressed to the sponsor and it is a notification of a refusal of that entity as a sponsor, such that the position is there is no - in my submission, the actual position is that there is no approved sponsor for any of the applicants as at 17 July 2014.
HIS HONOUR: Yes. Well, you are tendering these ‑ ‑ ‑
MR BEVAN: I will tender those on the question of the remittal.
HIS HONOUR: Do you have any objection?
MR DOBBIE: No objection, your Honour.
HIS HONOUR: On the issue of remitter, I admit two documents: one is entitled Business Nomination - it will be exhibit A, and the other a letter from the Department of Immigration and Border Protection dated 17 July 2014 to a company called Ge’Lucro C Pty Ltd. That will be exhibit B.
EXHIBIT A: Business Nomination
EXHIBIT B: Letter from Department of Immigration and Border Protection to Ge’Lucro C Pty Ltd dated 17 July 2014
I should ask is there any further evidence that either party seeks to tender?
MR BEVAN: No, your Honour.
HIS HONOUR: Very well, and I take it, Mr Bevan, while you are nominally on your feet, do you say that there is jurisdiction in the Federal Circuit Court?
MR BEVAN: Yes.
HIS HONOUR: Very well. Yes.
MR DOBBIE: Your Honour, I obviously welcome that the matter could be remitted, but I think because it is a question of construction - and I just remember many years ago I had a matter remitted from this honourable Court and the federal magistrate at the time said that we do not have jurisdiction to review it and fortunately the Minister and our client were able to come to an agreement as to orders ultimately - because this question is somewhat controversial because it may be prima, it may not, depending on a third party’s approval status, I would certainly welcome any ruling by your Honour in relation to the construction.
HIS HONOUR: Yes. I take it that you do not put forward any discretionary reason against remittal, if remittal is possible?
MR DOBBIE: Absolutely not, your Honour. I think anything that can be dealt with at the first tier of the federal jurisdiction is preferable than having to come to this honourable Court first.
HIS HONOUR: Yes, that is a commendable attitude, I must say. Well, it may be best if we were to hear from Mr Bevan at this stage and you will have a full right of reply. Yes, Mr Bevan.
MR BEVAN: Thank you, your Honour. Your Honour has indicated your Honour has a copy of the Act.
HIS HONOUR: Yes.
MR BEVAN: If I can just take your Honour through the provisions. I will try not to go to the regulations if I can.
HIS HONOUR: I think I will force you to go to the regulations because I may need some assistance.
MR BEVAN: Yes, your Honour. Might I ask your Honour first to turn to section 337 which is in Division 1 of Part 5? Your Honour will see that “sponsored” in Part 5 is given the same meaning as in the regulations.
HIS HONOUR: Yes.
MR BEVAN: That then has consequences for what “sponsored” means in section 338(2)(d)(i) and/or (ii), and I will come back, if I may, to the construction of section 338. I just prefer to go through the other material first.
HIS HONOUR: Yes.
MR BEVAN: Can I ask your Honour to turn to section 5 of the Act, which is the definition section and to the definition of “approved sponsor” which, if your Honour has a bound copy, should be on or around page 5.
HIS HONOUR: Yes.
MR BEVAN: Your Honour will see that “approved sponsor” there means by (a)(i) someone:
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) –
If your Honour then moves to Division 3A which contains section 140E ‑ ‑ ‑
HIS HONOUR: Where do I find that in my bound volume?
MR BEVAN: It is in volume 1 of the bound volumes at around 144, depending on your Honour’s edition date.
HIS HONOUR: Section what?
MR BEVAN: Section 140A is the start.
HIS HONOUR: Yes.
MR BEVAN: Your Honour will see that:
This Division applies to visa of a prescribed kind (however described).
I will need to take your Honour to the regulations and I have a copy of some, if I could hand that to your Honour – one copy for your Honour and one for the Court.
HIS HONOUR: Thank you.
MR BEVAN: Before moving directly to the section dealing with the prescribed kinds of visa for section 140A, I have to take your Honour to a bit of an exclusionary operation. If your Honour has that bundle, if your Honour turns to the first page which is the definitions in 1.03, your Honour will see that “sponsor” and “sponsorship” have the meaning given by subregulation 1.20(1). If your Honour then turns to the next page of the bundle - this is the end part of regulation 1.20 that your Honour will see - this is subregulation (4) and by paragraph (h) of regulation 1.20(4) ‑ ‑ ‑
HIS HONOUR: I am sorry, where am I?
MR BEVAN: Does your Honour have the ‑ ‑ ‑
HIS HONOUR: I have several ‑ ‑ ‑
MR BEVAN: You should have the Migration Regulations.
HIS HONOUR: Yes.
MR BEVAN: The first page which is numbered 28.
HIS HONOUR: Yes, I have looked at that. The next page you want me to look at is the next page, is it?
MR BEVAN: Is the next page which is numbered 64.
HIS HONOUR: I am sorry, yes.
MR BEVAN: By subregulation (4)(h) it excludes subclass 457 visas from the general definition of regulation 1.03. If your Honour then turns to the next page in that bundle which should be page 206 at the bottom pagination, this is then the start of the regulations dealing with Division 3A of the Act. So for section 140A, your Honour will see by paragraph (k), subclass 457 is prescribed. I have to ask your Honour now to move back to the Act.
HIS HONOUR: Yes.
MR BEVAN: Section 140E is the start of the process to do with approving sponsors. Section 140E deals with the Minister approving the sponsor if they meet the prescribed criteria, and there is a process – the regulations deal with the process for that by section 140F, and then there are the terms of approval in 140G and the variation of those terms of approval is in 140GA. What then happens under the structure of the Act, your Honour, is once the sponsor is approved, under section 140GB, the approved sponsor can then go on to nominate particular applicants. I do not need to bother your Honour with the remainder of the division.
HIS HONOUR: Yes.
MR BEVAN: Then, so that your Honour has the picture of the balance of the regulations, there are – if I could ask your Honour to return to the bundle which I have given – it would be the page paginated 218. There are particular classes of sponsor, standard business sponsors for section 140E(2) by regulation 2.58 and then on the next page, page 219, regulation 2.59 sets out the criteria for approval as a standard business sponsor.
HIS HONOUR: Yes.
MR BEVAN: I do not need to take your Honour to the balance but there is a process by which those applications are made and then notified to the sponsor, or the person applying to be a sponsor, as to whether or not they satisfy the criteria and the decision is either granted or refused. In this case, your Honour, the company Ge’Lucro C Pty Ltd applied to be a sponsor for a class UC, which encompasses the 457 visa, and that application for sponsorship was refused on 17 July 2014 and your Honour has that refusal in exhibit B.
I do not need to take your Honour to any material in that but in short it was because the delegate found that they did not meet some of the criteria prescribed by regulation 2.59. That being so, there is then no approved sponsor and the circumstance by section 140GB whereby an approved sponsor can nominate a person just does not arise. Returning then to the question of construction before your Honour, if I could take your Honour to section 476 before then going back to section – sorry, if your Honour, of course, starts with section 476B(2) which places a restriction on the power of this Court to:
remit a matter, or any part of a matter . . . to the Federal Circuit Court –
that restriction being that the Court can only remit a matter to that court if the Federal Circuit Court has jurisdiction. Under section 476(2):
The Federal Circuit Court has no jurisdiction in relation to the following decisions:
(a)a primary decision –
and by subsection (4) “primary decision” is defined as:
a privative clause decision or purported privative clause decision:
(a)that is reviewable under Part 5 . . . (whether or not it has been reviewed); or
(b)that would have been so reviewable if an application for such review had been made within a specified period.
That then directs attention to whether or not the decision is reviewable under relevantly Part 5.
HIS HONOUR: Yes.
MR BEVAN: If I can ask your Honour to return to section 338. Now, section 338 is one of the subsections which deals with what may or may not be a reviewable decision, but it must be read in its entirety, so:
A decision . . . to refuse to grant a non‑citizen a visa is an MRT‑reviewable decision if –
each of paragraphs (a), (b), (c) and (d) is met. In this case, there is no dispute that subparagraphs (a), (b) and (c) are met. Nevertheless, the effect of the section is that those paragraphs are accumulative and each must be satisfied. Turning to paragraph (d), the first part of paragraph (d) sets up a particular question and that is that the particular type of visa being applied for must have this type of criterion.
HIS HONOUR: Applicable to the particular applicant?
MR BEVAN: It is not - in this case the criterion so much is not fact dependent. Here the 457 visa is a visa which requires the non‑citizen to be sponsored by an approved sponsor. That is in Schedule 2 of the regulations, item 457, which sets out the criteria for the grant of this visa.
HIS HONOUR: Yes, this is what I looked at.
MR BEVAN: Yes.
HIS HONOUR: That is absolutely correct for the grant of the visa to the primary applicant. What I am not sure about is whether it is correct in all cases for the grant of the visa to a member of the family unit.
MR BEVAN: Well, it must be – while the Act and the regulations talk about primary criteria and secondary criteria, at the stage at which an application is made and while there are by the form nominations as to one or other as being the primary and the secondary, then that is an administrative way of facilitating the making of the decision, but strictly, each of the applicants is an applicant for the visa and can be assessed against all criteria.
HIS HONOUR: Well, you will have to demonstrate that to me. I am not too sure that is right.
MR BEVAN: Can I come back to that in a moment?
HIS HONOUR: Yes.
MR BEVAN: Thank you, your Honour. Coming back to a bit, if your Honour ‑ ‑ ‑
HIS HONOUR: When you are ready, I am not rushing you.
MR BEVAN: No, no, if your Honour ‑ ‑ ‑
HIS HONOUR: You were telling me about the structure of paragraph (d).
MR BEVAN: Yes. So where it is a criterion for a grant of that visa, then it is an MRT‑reviewable decision if either of subsections (i) or (ii) is satisfied.
HIS HONOUR: Yes. So if you do not get within the chapeau of paragraph (d), then you only have to satisfy (a), (b) and (c) and it is an MRT‑reviewable decision. If you do get within the chapeau of paragraph (d), then subparagraphs (i) or (ii) have to be satisfied.
MR BEVAN: Yes, assuming the relevant decision then does not fall within any of the other subsections also.
HIS HONOUR: Yes.
MR BEVAN: Yes, your Honour.
HIS HONOUR: We are not concerned with any other subsections here, as I understand it.
MR BEVAN: No. The effect of the Act is that if a sponsor - or there has been a decision to refuse an application for sponsorship, then only that sponsor can apply to the Tribunal for a review of that decision. That follows because there is no approved sponsor then in subparagraph (i), paragraph (d)(i).
HIS HONOUR: I am not sure it follows that from that paragraph alone that the sponsor only can be the applicant. There may be another provision that produces that result.
MR BEVAN: Yes, your Honour.
HIS HONOUR: But I follow you that if there is no approved sponsor then paragraph (i) ‑ ‑ ‑
MR BEVAN: Paragraph (i) does not apply, yes.
HIS HONOUR: Well, cannot be fulfilled.
MR BEVAN: Yes. The question of who can apply ‑ ‑ ‑
HIS HONOUR: I am not sure that is necessary for the purpose of your argument to take me to that.
MR BEVAN: Thank you, your Honour.
HIS HONOUR: Paragraph (ii), I take it, has no potential application here?
MR BEVAN: That is correct, yes. Subject to your Honour’s question, if in the circumstances where there was no approved sponsor by force of exhibit B and subject to the question that I have to return to for your Honour, my submission is that the decision to refuse the plaintiff a 457 visa is not an MRT‑reviewable decision under 338(2)(d) or 338(2).
HIS HONOUR: Yes.
MR BEVAN: Now, I have to return to your Honour’s question. I apologise, I do not have another spare copy of the clause 457 criteria to hand up. I was not anticipating having to go there.
HIS HONOUR: Do you want a moment? I would like to complete the argument this morning if possible.
MR BEVAN: I think I would be grateful for a moment just to check the particular structure of clause 457. Does your Honour need a copy? I can arrange for one to be made.
HIS HONOUR: No, I have a copy which I think is in the appropriate form. These things change regularly. But when you locate a copy you might give me a photocopy of it so I am sure that I have the regulation in the right form.
MR BEVAN: Yes, your Honour.
HIS HONOUR: There is also a decision of a single Judge of this Court dealing with remitter that was drawn to my attention this morning - if I were to adjourn for half an hour or so?
MR BEVAN: Yes, your Honour.
HIS HONOUR: Would that be sufficient time for you to locate a copy of the relevant regulation?
MR BEVAN: Yes.
HIS HONOUR: In that time I will ask Registry staff to provide you with a copy of the decision that was drawn to my attention. You may wish to consider it. I am not saying it necessarily bears on the issue, but you may wish to consider it.
MR BEVAN: Thank you, your Honour.
HIS HONOUR: Very well, I will adjourn until 10.10.
AT 9.36 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.10 AM:
HIS HONOUR: Mr Bevan.
MR BEVAN: I am grateful for the time that your Honour gave me - whether or not I have managed to put it to good use, we will see. If I can address firstly the question of whether or not this is a visa - the criterion for the - the chapeau in section 338(2)(d). In my submission, it is a criterion for the grant of the visa that the applicant be sponsored, and can I take your Honour to the parts of clause 457 upon which I rely for that submission?
HIS HONOUR: Yes.
MR BEVAN: The first is 457.2 under the primary criteria and although it is a note, nevertheless I rely upon it. The note there says that the primary criterion must be satisfied by at least one applicant and other applicants who are members of the family unit who satisfy the – of the applicant who satisfies the primary criterion need satisfy only the secondary. Remaining with the primary criteria for the moment, if I could ask your Honour to turn to clause 457.223(4) – sorry, first of all starting with (1) - 457.223(1) at the bottom of page 33:
The applicant meets the requirements of subclause (2) or (4).
If your Honour moves to subclause, relevantly, (4):
The applicant meets the requirements of this subclause if:
(a)each of the following applies:
(i)a nomination of an occupation . . . 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 –
This, of course, is done at the level of construction as to whether or not the criterion provides, not whether or not in particular circumstances of the case whether or not that has actually been so for the purposes of determining whether or not the criterion applies.
HIS HONOUR: You see my concern is that section 338 has in the chapeau the requirement that it be a criterion for the grant of the visa that the non‑citizen is sponsored by an approved sponsor, so I am focusing on the particular non‑citizen who is the plaintiff in these proceedings. That is the context in which my concern arises.
MR BEVAN: Yes, on that, my primary submission is that what the chapeau of section (d) is dealing with is not the particular facts that the non‑citizen is sponsored by an approved sponsor, because, indeed, that particular factual circumstance, whether or not that is met, is what is dealt with by paragraph (i).
HIS HONOUR: Yes. So there is no point in going to the MRT to get a visa that you can only get if you have an approved sponsor if you do not have an approved sponsor any more. That seems to be the concern.
MR BEVAN: I hesitate to give a yes or no answer to that, your Honour. I fear that if I commit myself either way on that I will fall into error and drag your Honour with me. The first part of paragraph (d) looks at the nature of the criterion for the visa in question and is done at that question of construction.
HIS HONOUR: Yes, but it does use a definite article – “the” non‑citizen.
MR BEVAN: Yes, and that is because each non‑citizen, for the purposes of a 457 visa, will need to sponsored, and I will take your Honour to the remaining ‑ ‑ ‑
HIS HONOUR: That is the point. I am sorry, I am taking you off that track.
MR BEVAN: No, no.
HIS HONOUR: That is what you just need to show me.
MR BEVAN: Yes. So I am still in the primary criterion. Your Honour will see in subclause (4) that there has to be a nomination. Turning then over to the secondary criteria, which commence on page 38, pausing with 457.321, this just emphasises that where there is an applicant who satisfies the primary criterion then the others are members of that family unit - 457.321. Then in clause 457.324(1):
The applicant is included in any nomination that is required in respect of the primary applicant.
Then, if they are not included, in any event then the standard business sponsor in paragraph (a) has agreed in writing that they may be a secondary sponsored person.
HIS HONOUR: Now, do I know which of those potential criteria have application here?
MR BEVAN: At the level of construction it does not matter, in my submission, because either one of those will mean that it is a criterion for the grant of the visa that the non‑citizen is sponsored.
HIS HONOUR: I see that in relation to subclause (2). How does it apply in relation to subclause (1)?
MR BEVAN: It applies under (1) because the nomination is a nomination that is done under section 140GB, and that can only be done by an approved sponsor under section 140E.
HIS HONOUR: Yes. Who is nominated?
MR BEVAN: Both. In the particular facts of this case, both were nominated and sponsored.
HIS HONOUR: Is it a requirement of the Act or the regulations that members of the family unit be nominated by the sponsor?
MR BEVAN: That would be the effect of subclause (1) of 457.324, that:
The applicant is included in any nomination that is required in respect of the primary applicant.
HIS HONOUR: I see, the nomination being the nomination of the sponsor.
MR BEVAN: Correct - under section 140GB, which is before your Honour as exhibit A.
HIS HONOUR: I see. I follow now.
MR BEVAN: The effect of those provisions, in my submission, is that the chapeau of section 338(2)(d) is met, and then moving into the facts, your Honour knows the submission that I have made how neither of the subparagraphs of (2)(d) is met.
HIS HONOUR: Yes.
MR BEVAN: In relation to the decision, I understand of her Honour Justice Kiefel, in Gajjar v Minister for Immigration and Citizenship in Matter No B37 of 2012, it was a different factual case, and not one like this. In that case the decision to refuse the particular visa in question was an MRT‑reviewable decision but just simply Mr Gajjar, in that case, did not bring the application to the MRT in time - in the time stipulated, I think, by
section 347 of the Act, that being so, the effect of the Act is that neither the Tribunal nor the courts have power to extend time in which to make an application to review to the Tribunal.
HIS HONOUR: Yes.
MR BEVAN: But that fact did not detract from the quality of the decision nevertheless being a decision that was reviewable under Part 5 and for that reason, in my submission, Gajjar is distinguishable and your Honour does not need to worry about it in this case.
HIS HONOUR: Very well. Well, thank you, I do understand those submissions and I have been assisted by you taking me through the tedious provisions of clause 457 of Schedule 2 to the regulation. Thank you.
MR BEVAN: Not at all. Thank you, your Honour.
HIS HONOUR: Well, Mr Dobbie, do you wish to say anything in reply?
MR DOBBIE: Only a very short response, your Honour. Just in relation to Gajjar’s Case, at page 6 of her Honour’s judgment, Justice Kiefel, in the middle of the second paragraph states:
Its language suggests that the achievement of a review is not its concern.
HIS HONOUR: Page?
MR DOBBIE: Page 6 of her Honour’s judgment. Just in the second paragraph right in the middle of that paragraph there is a sentence starting “Its language suggests that the achievement of a review is not its concern” and I am just wondering if that points to the anomaly I noted earlier at the outset that, you know, it is a strange provision, section 338(2), and when you read “primary decision”, depending on whether a third party has sought review, your decision is primary or it is not, and I am wondering if that is what her Honour Justice Kiefel was speaking to.
We do not look at whether you could have achieved the review, just whether one was possible. Of course, I would welcome any ruling by your Honour that the matter can be dealt with at the first tier of judicial review at the Federal Circuit Court, but I am wondering if her Honour is speaking against that proposition by this statement.
HIS HONOUR: Very well. Thank you for that. I have also noted your written submissions where you have drawn my attention to a decision of a Federal Circuit Court judge that may raise a concern.
MR DOBBIE: Yes.
HIS HONOUR: What I propose to do, given the legislative detail to which I need to give some attention, is to deliver my reasons for decision later today. I would think 2 o’clock might be a convenient time. There is no reason why counsel should feel compelled to attend, but you are welcome to, of course.
MR DOBBIE: Thank you, your Honour.
HIS HONOUR: So what I will do is reserve my decision and I will deliver reasons at 2.00 pm – deliver my decision giving reasons and making orders at 2.00 pm today.
MR BEVAN: May it please the Court.
MR DOBBIE: Thank you, your Honour.
AT 10.22 AM SHORT ADJOURNMENT
UPON RESUMING AT 2.00 PM:
HIS HONOUR: Thank you for providing me with a copy of the case of Islam - better late than never, I suppose. Is there anything you wanted to say about it, Mr Dobbie? I think it came from you, Mr Bevan.
MR DOBBIE: Yes. There is nothing I wanted to say about it, your Honour.
HIS HONOUR: The headnote is a little misleading, I think.
MR BEVAN: Yes, your Honour. I will bring it up with Mr Catterns.
HIS HONOUR: Yes.
There is before me an application for an order to show cause in the original jurisdiction of the High Court under section 75(v) of the Constitution. The plaintiff, who is a national of Hungary, seeks the issue of constitutional writs directed to the Minister for Immigration and Border Protection. Specifically, the plaintiff seeks a writ of certiorari quashing a decision of a delegate of the Minister made on 7 August 2014 refusing to grant a class UC (subclass 457) Temporary Work (Skilled) visa for which the plaintiff had applied on 30 April 2014, together with a writ of mandamus requiring the Minister to determine the application for that visa according to law.
The decision of the delegate was a decision made or purported to be made under section 65 of the Migration Act 1958 (Cth). The decision of the delegate was therefore, within the nomenclature of that Act, either a “privative clause decision” or a “purported privative clause decision”, and also a “migration decision”.
The question which now arises for my determination is whether the matter to which the application relates can be remitted to the Federal Circuit Court. It is common ground between the parties that the matter, if it can be remitted, is one that is appropriate to be remitted in the exercise of my discretion. That approach, with which I agree, accords with the observation of Chief Justice Brennan in Ravenor Overseas Inc v Readhead (1998) 72 ALJR 671 at 672, that the power of remitter is designed to ensure that this Court is not diverted from its principal functions by the need to hear and determine matters in the original jurisdiction which could properly be brought in an Australian trial court.
The effect of section 476B(2) of the Act is that the matter can be remitted to the Federal Circuit Court only if the migration decision to which the matter relates is one in relation to which that court has jurisdiction under section 476 of the Act.
Under section 476 of the Act, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as does the High Court under section 75(v) of the Constitution save, relevantly, that it has no jurisdiction in relation to a privative clause decision, or purported privative clause decision, that is reviewable under Part 5 of the Act, or that would have been so reviewable if an application for such review had been made within a specified period. That exclusion from jurisdiction is the effect of section 476(2)(a), read with the definition of “primary decision” in section 476(4).
Subject to exceptions which have no bearing on the circumstances of this case, a decision to refuse to grant a non‑citizen a visa is reviewable under Part 5 of the Act if the decision meets the definition of an “MRT‑reviewable decision” in section 338(2). Insofar as it is now relevant, section 338(2) provides:
(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 an MRT-reviewable decision if:
(a)the visa could be granted while the non-citizen is in the migration zone; and
(b)the non-citizen made the application for the visa while in the migration zone; and
(c)the decision was not made when the non-citizen:
(i)was in immigration clearance; or
(ii)had been refused immigration clearance and had not subsequently been immigration cleared; and
(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 term “sponsored” is defined in section 337 to have the same meaning as in the regulations and the term “approved sponsor” is defined in section 5(1) to include a person 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).
It is convenient to note at this point that one of the classes prescribed by regulation 2.58 of the Migration Regulations 1994 (Cth) for the purpose of section 140E(2) is a standard business sponsor. In accordance with the scheme of Division 3A of Part 2 of the Act, which is made applicable to class UC (subclass 457) Temporary Work (Skilled) visas by regulation 2.56, the Minister must approve a person as a standard business sponsor under section 140E in relation to visas of that class if the criteria prescribed in regulation 2.59 are satisfied. Under section 140GB, an approved standard business sponsor may nominate an applicant or proposed applicant for a visa of that class. Importantly, regulation 4.02(1AA) provides for the purpose of the definition of the term “sponsored” in section 337 and, hence, for the purpose of giving content to that term in section 338(2)(d), that “sponsored” includes being identified in a nomination under section 140GB of the Act.
The structure of the definition of “MRT‑reviewable decision” in section 338(2) makes plain that the criteria set out in paragraphs (a), (b), (c) and (d) are cumulative. Paragraphs (a), (b) and (c) set out criteria which must be met in every case. Paragraph (d) sets out an additional criterion which must be met where the condition in the opening words of that paragraph is engaged. Where that condition is engaged, the additional criterion in paragraph (d) will only be met if one or other of subparagraphs (i) or (ii) applies.
In the circumstances of the present case, it is common ground that the criterion in each of paragraphs (a), (b) and (c) of the definition of “MRT‑reviewable decision” is met.
As to paragraph (d), the visa for which the plaintiff applied is a temporary visa of a kind prescribed by regulation 4.02 for the purpose of that paragraph. Was it a criterion for the grant of that visa that the plaintiff be sponsored by an approved sponsor? Read in the light of the definition in section 337 and in the light of regulation 4.02(1AA), the answer to that question is yes if the criterion prescribed for the grant of the visa required that the plaintiff be identified in a nomination under section 140GB: see Minister for Immigration and Citizen v Islam (2012) 202 FCR 46 at 53 – 54, [38] – [43].
The plaintiff applied for the visa as a member of the family unit of his wife. It was his wife who was the primary applicant. The effect of clause 457.223(4)(a)(ii) of Schedule 2 to the regulations is that it is a criterion for the grant of such a visa to the primary applicant that the primary applicant is nominated by a standard business sponsor. The effect of clause 457.324 of the same Schedule is that sponsorship by a standard business sponsor is similarly a criterion for the grant of such a visa to a member of the family unit of the primary applicant.
The applicant and his wife were in fact nominated by a company called Ge’Lucro C Pty Ltd, purportedly under section 140GB of the Act. However, that company was refused approval as a standard business sponsor under section 140E on 17 July 2014. There is no suggestion that an application for review of that decision has been made.
The position, therefore, is that paragraph (d) is engaged in that the paragraph applies in relation to the kind of visa for which the plaintiff applied, but that neither of the circumstances in subparagraphs (i) or (ii) is applicable. Paragraph (d) being engaged but the criterion it sets out not
being met, the result is that the decision of the delegate is not an MRT‑reviewable decision and is not, on that basis, excluded from the jurisdiction of the Federal Circuit Court.
The plaintiff has drawn my attention to a passage in the reasons for decision of Judge Lucev in Diamant v Minister for Immigration (2014) FCCA 21 at [30]. His Honour was concerned in that case with an application for judicial review of a decision of the Migration Review Tribunal in which one of the grounds sought to be relied on by the applicant for judicial review was that the original decision of a delegate of the Minister was made without jurisdiction. What his Honour said at paragraph [30] was in the context of rejecting that ground as sought to be advanced in that case. I do not read his Honour as having suggested that the Federal Circuit Court never has jurisdiction to review a decision of a delegate of the Minister. The reasoning of Justice Robertson in Minister for Immigration and Citizenship v Islam, a case to which I have already referred, is consistent with the view that I have taken in determining the issue in this matter.
I mention for completeness that I accept the submission of the Minister that the decision of Justice Kiefel in Gajjar v Minister for Immigration and Citizenship (Matter No B37 of 2012) delivered on 1 November 2012 does not bear relevantly on the present case.
The Federal Circuit Court, having jurisdiction to review the decision, it is appropriate that the matter to which the application for an order to show cause relates be remitted to that Court. The orders I make are as follows.
MR BEVAN: Before your Honour makes orders, I want to raise something. Your Honour mentioned regulation 4.02(1AA), while that was a regulation that was before – that was then in place before Justice Robertson, I do not think it remains part of the regulatory scheme at the moment. Now, to the extent ‑ ‑ ‑
HIS HONOUR: It is in my version of the regulations.
MR BEVAN: Sorry, then I am mistaken. An electronic version I looked at did not have it. I can check that immediately, or have that checked immediately.
HIS HONOUR: I think we had better check that before we go further.
MR BEVAN: Yes, your Honour.
HIS HONOUR: If it is not there, then is there anything to replace it? If there is not, then it would affect my reasoning.
MR BEVAN: I was about to, if I may, I was going to ask your Honour if it would affect your Honour’s reasoning in that regard.
HIS HONOUR: I am not saying it would affect the conclusion.
MR BEVAN: Yes, but it might affect your Honour’s reasons.
HIS HONOUR: It would certainly affect the reasoning.
MR BEVAN: Yes, your Honour. I am sorry to do that to your Honour and it was something that I should have mentioned at the outset. Would your Honour mind adjourning for a period of 5 or 10 minutes while I have that checked?
HIS HONOUR: No, not at all.
MR BEVAN: I am sorry to do that, your Honour.
HIS HONOUR: All right, how long do you want, 5 or 10 minutes?
MR BEVAN: Ten minutes please.
HIS HONOUR: I will adjourn until 25 past 2.
AT 2.14 PM SHORT ADJOURNMENT
UPON RESUMING AT 2.25 PM:
MR BEVAN: I should not speak on the basis of a flawed recollection, your Honour. The regulation is there. I thank your Honour for the indulgence and apologise for the inconvenience.
HIS HONOUR: Yes, your apology is accepted. The orders I make are as follows:
1.The matter be remitted to the Federal Circuit Court, New South Wales Registry.
2.The proceeding continue in the Federal Circuit Court as if the steps already taken in this Court had been taken in that court.
3.The Registrar of this Court forward to the proper officer of the Federal Circuit Court photocopies of all documents filed in this Court.
4.The cost of the proceedings in this Court be costs in the cause.
5.The cost of proceedings to the date of this order be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to proceedings in the Federal Circuit Court, subject always to the discretion of that court.
The Court will now adjourn.
AT 2.26 PM THE MATTER WAS CONCLUDED
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