Villas v Minister for Immigration

[2008] FMCA 850

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VILLAS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 850

MIGRATION – MRT decision – onshore subclass 457 visa for sponsored employment – withdrawal of sponsorship before application to Tribunal – Tribunal correctly found that its jurisdiction was excluded – application for mandamus dismissed.

Migration Act 1958 (Cth), s.338(2)(d)
Migration Regulations 1994 (Cth), Sch.2 item 457.223(4)(i)

Cantil v Minister for Immigration & Anor [2008] FMCA 849

Applicant: ROSALIE VILLAS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 403 of 2008

Judgment of: Smith FM

Hearing date: 16 June 2008

Delivered at: Sydney

Delivered on: 16 June 2008

REPRESENTATION

Counsel for the Applicant: Mr J B Hajje

Solicitors for the Applicant: John B Hajje & Associates

Counsel for the First Respondent: Ms S Sirtes

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $3000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 403 of 2008

ROSALIE VILLAS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. In this application, Ms Villas seeks orders by way of mandamus to compel the Migration Review Tribunal to entertain an application for review which she lodged on 12 December 2007. The Tribunal, after inviting her comments on its possible lack of jurisdiction, made a decision posted to her on 25 January 2008 that it did not have jurisdiction.

2. Her application to the Tribunal sought review of the refusal of a temporary business (long stay) subclass 457 visa, which she sought upon the basis of proposed employment as a residential care officer with Doonside Aged Care Centre Pty Ltd. The visa application was refused by a delegate on 2 November 2007, upon the ground that she could not comply with the time‑of‑decision criterion in Sch.2 item 457.223(4)(i), of the Migration Regulations 1994 (Cth) with a required current sponsorship, after the Department received written notice from a person acting on behalf of Doonside Aged Care Centre Pty Ltd withdrawing their sponsorship. The Tribunal held that this also had the effect of excluding its jurisdiction, pursuant to s.338(2)(d) of the Migration Act 1958 (Cth).

3. The circumstances of the present case are not distinguishable from the events which I narrated, and the arguments which were presented in favour of the jurisdiction of the Tribunal, in a matter involving the same legal representatives, in which I have just delivered judgment (see Cantil v Minister for Immigration & Anor [2008] FMCA 849).

4. The duplication of events includes the same chronology, migration agents, and employers. The signature of the application by Ms Villas occurred on 17 July 2006. She was detained on 17 October 2006 after the expiry of her previously existing visa, and her application for the subclass 457 visa was lodged on 20 October 2006, probably with a form 1196 application for approval by the proposed employer. The processing of the matter proceeded in the same way as in Cantil. The communication of the sponsor’s withdrawal occurred in the same letter from Mr Manken which I quoted in the Cantil matter.

5. Ms Villas made submissions to the delegate and subsequently to the Tribunal conceding the withdrawal of the sponsorship, but criticising the immigration officials who had detained her and the people who had failed to arrange her employment visas to her satisfaction. As with Ms Cantil, she was clearly advised by the delegate that she could not amend or alter her current visa application to encompass a new sponsorship.

6. The grounds of the present application are identical to those presented in Cantil, and the arguments presented in support are the same. In my opinion, they lack merit for the reasons I gave in the Cantil matter. I do not propose to add any further reasons.

7. In my opinion, the Tribunal’s decision that it did not have jurisdiction was correct, and I must therefore dismiss this application.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  30 June 2008