Teixeira v Minister for Immigration

[2017] FCCA 2065

FEDERAL CIRCUIT COURT OF AUSTRALIA

TEIXEIRA v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2065

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – Temporary Work (Long Stay Activity) (Class GB) visa – where application is an abuse of process – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.140E, 140GB, 338(2)(d)

Migration Regulations 1994 (Cth), sch.2 cl.401.231, sub-reg.2.72J(4)(b)(v)

Applicant: WILLIAM MORENO TEIXEIRA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1249 of 2016

Judgment of: Judge Hartnett

Hearing date: 14 August 2017

Delivered at: Melbourne

Delivered on: 14 August 2017

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: The Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1249 of 2016

WILLIAM MORENO TEIXEIRA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 16 March 2016, wherein the Tribunal determined that it had no jurisdiction in respect of the application of the Applicant which was made to it on 14 March 2016 for review of a decision of a delegate of the First Respondent to refuse to grant a Temporary Work (Long Stay Activity) (Class GB) visa (‘the visa’).

2. The Applicant’s stated grounds of application are as follows:-

   “1. AAT took account of irrelevant considerations

   2. AAT erred at law

   3. AAT failed to take account of relevant consideration”

3. This application was simply an abuse of process.  What it enabled the Applicant to do was remain on a bridging visa in the period between May 2016 and August 2017.

4. On the hearing this day, the Applicant indicated that he had no understanding of the grounds of application; they were given to him by a solicitor.  The Applicant has appeared as a litigant in person throughout these proceedings. When asked to particularise any of the grounds in any way, he was unable to do so.

5. The Applicant agreed that he made the concession referred to by the Tribunal in paragraph 8 of its Statement of Decision and Reasons (‘the Decision Record’).  Paragraph 8 is as follows:-

   “In his response of 20 April 2016, the applicant’s representative stated that Western Suburbs Soccer Club Inc is an approved 457 sponsor and has now nominated the applicant under the 457 visa scheme. The applicant conceded that his subclass 401 visa application cannot be approved without the approved nomination.  The applicant intends to lodge an offshore 457 visa application in September 2016 at the end of the 2016 soccer season.”

Background

1. The Applicant is a national of Brazil who arrived in Australia on 9 April 2014 as the holder of a Visitor (Class FA) (subclass 600) visa.  A further visitor visa was granted on 16 July 2014 with an expiry date of 31 March 2015.  On 1 April 2015, the Department of Immigration and Border Protection (‘the Department’) accepted lodgement of an application for a Long Stay Activity (subclass 401) visa for employment as a professional soccer player with the Western Suburbs Soccer Club.  On 9 September 2015, the Department wrote to the  Applicant via his then migration agent, requesting further information in relation to the visa application, noting that the Applicant’s prospective employer did not have an approved nomination for the  Applicant. As a consequence the Applicant’s visa application was unlikely to be successful. The Applicant was invited to provide evidence that he was the subject of an approved nomination.

2. On 24 September 2015, the Applicant’s then migration agent sent an email to the Department, noting that problems had been experienced in obtaining the necessary letter of endorsement from Football Federation Australia (‘the FFA’) and seeking permission to lodge a new nomination and to have that joined to the existing visa application.  The Department agreed to that request on the following day.

3. Although a new nomination application was lodged by Western Suburbs Soccer Club on 30 September 2015, the letter of endorsement from the FFA remained outstanding in February 2016, and the nomination was refused on 22 February 2016.  In the absence of an approved nomination, the Applicant was unable to meet the requirements of cl.401.231 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), that the Applicant be identified in a nomination by a Long Stay Activity sponsor that was a sporting organisation or by a sports sponsor.  As a consequence, the delegate of the Minister was required to refuse the visa application.

The Tribunal

1. Following the lodgement of the Applicant’s application to it, the Tribunal noted that the Applicant was not identified in a nomination under s.140GB of the Migration Act 1958 (Cth) (‘the Act’) that was approved or pending. The Tribunal further noted there was no pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E of the Act or a decision not to approve the nomination under s.140GB of the Act. The Tribunal sought the Applicant’s comments and the response was as is referred to in paragraph 8 of the Decision Record (as referred to at paragraph 5 of these reasons).

2. The Tribunal found it had no jurisdiction because the Applicant was not subject to an approved nomination, nor was any nomination application relating to the Applicant pending for determination with the Department at the time the application for review was lodged on 14 March 2016. The Tribunal found, thus, no jurisdiction arose under s.338(2)(d)(i) of the Act.

3. Furthermore, the Tribunal found no jurisdiction arose under s.338(2)(d)(ii) because, at the time of the visa review application on 14 March 2016, there was no pending review of any decision to refuse the sponsor seeking to nominate the Applicant, whether this be a review of the decision made under s.140E to refuse sponsorship, or a decision made under s.140GB to refuse a nomination relating to the Applicant.

4. An application for a subclass 401 visa as at 1 April 2015 had to meet the requirements of cl. 401.231 of Schedule 2 to the Regulations which was as follows:-

   “401.23—Criteria for Sport stream

   Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 401 visa in the Sport stream.

   401.231

   (1)  The applicant is identified in a nomination by:

   (a)  a long stay activity sponsor who is a sporting organisation; or

   (b)  a sport sponsor.

   (2) The nomination meets the criteria in subregulation 2.72J(4).”

5. Sub-regulation 2.72J(4)(b)(v) was relevantly as follows:-

   “(4) If the person is a long stay activity sponsor who is a sporting organisation, or a sport sponsor:

   … (b)  the Minister is satisfied that:

   …

   (v)  the person has provided a letter of endorsement from the national sporting body responsible for administering the sport in Australia, certifying that:

   (A)  the identified visa holder or applicant has the ability to play, coach or instruct at the Australian national level; and

   (B) the participation of the identified visa holder or applicant in the sport in Australia would benefit the sport in Australia by raising the standard of competition; or…”

6. The Tribunal’s no jurisdiction decision was correctly made.  The lodging of the application to this Court allowed the Applicant to retain a bridging visa for the remainder of the 2016 soccer season and to the present time. The reason for the Applicant engaging in this process was that “it was unfair” the Western Suburbs Soccer Club Inc. had not done that which they had indicated to him they would.

7. The Application is dismissed with costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  30 August 2017