Williams v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 649
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Williams v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 649
File number(s): SYG 3124 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 12 August 2022 Catchwords: MIGRATION – Subclass 457 visa with Subclass 382 nomination – whether Tribunal erroneously found no jurisdiction Legislation: Migration Act 1958 (Cth) ss 140E, 140GB, 337, 338
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth) regs 2.56, 2.75, 4.02
Cases cited: Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365
Ahmad v Minister for Immigration and Border Protection & Anor [2015] FCCA 1486
El Masri v Minister for Immigration and Border Protection [2015] FCAFC 181
Kandel v Minister for Immigration and Border Protection[2015] FCCA 2013
Minister for Immigration and Border Protection v Lee[2014] FCCA 2881
Minister for Immigration and Citizenship v Islam (2012) 202 FCR 237
Sharma v Minister for Immigration and Border Protection [2015] FCAFC 180
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submissions: 9 March 2022 Date of hearing: 11 February 2022 Place: Sydney Counsel for the Applicant: Mr A Munro Solicitor for the Applicant: Turner Coulson Immigration Lawyers Counsel for the Respondent: Mr G Johnson of Counsel (post-hearing submissions only)
Solicitor for the Respondents: Mr E Taylor of Mills Oakley ORDERS
SYG 3124 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RYAN JAMES WILLIAMS
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
12 AUGUST 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 15 October 2018 into this Court for the purpose of quashing it.
3.A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to re-determine, according to law, the application for review before it.
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 GIVEN:
Before the Court is an application to show cause made pursuant to s 476 of the Migration Act 1958 (Cth) (Act) seeking review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 15 October 2018 in which the Tribunal found it lacked jurisdiction to review a decision of a delegate of the first respondent (delegate) dated 9 July 2018. The delegate’s decision of 9 July 2018 refused to grant the applicant a Temporary Work (Skilled)(Subclass 457) visa (Subclass 457 visa).
Background
The applicant is a national of the United Kingdom who, on 31 May 2017, lodged a visa application for a Subclass 457 visa with the first respondent’s Department (Court Book (CB) at 1 to 21) (visa application).
At the time of making the visa application, the applicant was located in Australia’s migration zone. Relevantly, the visa application provided details of the sponsoring employer as being AFM Masonry Pty Ltd (sponsor), and included references from his former employer detailing his employment duties as a bricklayer (with ANZSCO occupation name “Bricklayer” and ANZSCO Code “331111” (CB 41.5)).
It is not in dispute that the sponsor was an approved standard business sponsor for the purposes of the Act and the Migration Regulations 1994 (Cth) (Regulations).
The nomination by the sponsor was approved on 24 June 2017 (CB 116 at [6]) (original nomination).
On 18 March 2018, the Subclass 457 visa was repealed and replaced with a new Temporary Skill Shortage (Subclass 482) visa (Subclass 482 visa): see Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (Amending Regulation).
On 29 May 2018, the Department wrote to the applicant to invite him to comment on concerns it held that he had provided a bogus document or false or misleading information (CB 40).
The original nomination ceased by operation of law on 24 June 2018 (namely 12 months from the date of its approval): see reg 2.75(2)(b) of the Regulations as at 17 March 2018; cl 6704(14) of Schedule 13 to the Regulations.
On 26 June 2018, the applicant’s migration agent responded to the Department’s invitation to comment and provided additional supporting documents (CB 44).
On 9 July 2018, the delegate refused to grant the applicant the Subclass 457 visa (CB 59 to 67). Included within the delegate’s decision was a finding that the applicant failed to meet Public Interest Criterion 4020 (PIC 4020) by reason of having given information that was false or misleading in a material particular and did not otherwise satisfy any of the waiver criteria (in respect of which the applicant had not made any claims or submissions) (CB 65 to 66).
On 30 July 2018:
(a)at 12.29pm the sponsor lodged a Nomination for a Subclass 482 visa (again with ANZSCO occupation name “Bricklayer” and ANZSCO Code “331111” (CB 86)) with the Department (second nomination) (CB 85); and
(b)at 3.06pm the applicant applied to the Tribunal for review of the delegate’s decision (CB 73 to 74) and appointed his current solicitor as his representative and authorised recipient (CB 73 to 74).
On 14 August 2018, the Tribunal invited the applicant (via his authorised recipient) to comment on the validity of the review application, expressing a preliminary view that it lacked jurisdiction because the applicant was not the subject of an approved nomination capable of supporting the grant of the Subclass 457 visa application (CB 75 to 77).
In response to the Tribunal’s invitation, the applicant’s representative responded with submissions and documents on each of the following dates:
(a)27 August 2018 (CB 78 to 101);
(b)30 August 2018 (CB 102 to 105); and
(c)5 September 2018 (CB 106 to 110).
By the various submissions referred to in the preceding paragraph, the applicant contended that the Tribunal’s jurisdiction was enlivened by virtue of the second nomination application, which was subsequently approved on 5 September 2018.
On 15 October 2018, the Tribunal found it did not have jurisdiction to review the delegate’s decision.
Tribunal decision
The Tribunal accepted that, at the time of the application for review, the second nomination was a pending nomination application in which the applicant was identified as the nominee. The Tribunal accepted that the sponsor was an approved sponsor under s 140E of the Act at the time of the application for review. The Tribunal noted that while the applicant was identified in the second nomination application lodged on 30 July 2018 in respect of a Subclass 482 visa, he had not applied for the grant of a Subclass 482 visa (CB 117 at [10]).
The Tribunal considered the submissions made for the applicant but did not accept that the relevant provisions and case law supported the construction contended for by him that a pending nomination made under s 140GB was sufficient for the Tribunal to have jurisdiction (CB 117 at [12]).
The Tribunal found that because s 140GB provided for an approved sponsor to nominate an applicant (or proposed applicant) for “a visa of a prescribed kind” a nomination under s 140GB must be in relation to the same type of visa. The Tribunal found it would be inconsistent with the purpose of s 338(2)(d) for the Tribunal to find jurisdiction on the basis that the applicant had the second nomination pending at the time the application for review was made in circumstances where that second nomination, if approved, could never support the grant of the visa sought (CB 117 to 118 at [13]).
The Tribunal found that because the applicant did not hold a Subclass 457 visa at the time the Subclass 482 nomination was lodged on 30 July 2018, the second nomination was not capable of supporting the grant of a Subclass 457 visa. The Tribunal found that at the time of the application for review the applicant was not identified in a “relevant nomination” by an approved sponsor as required by s 338(2)(d)(i) of the Act (CB 118 at [14]) (emphasis added). Accordingly, the Tribunal concluded that it did not have jurisdiction in the matter (CB 118 at [18]).
THE CURRENT PROCEEDINGS
On 9 November 2018, the applicant filed an application to show cause with the Court seeking judicial review of the Tribunal’s decision and raising the following ground of review:
1.The Tribunal misapplied the law.
Particulars
1.The Applicant had been identified in a nomination lodged by his sponsor, AFM Masonry Pty Ltd on 12:29pm on 30 July 2018.
2.The application for review to the Tribunal was lodged on 3:06pm on 30 July 2018.
3.Therefore, the application for nomination identifying the Applicant was lodged prior to the time of the lodging of the application for review with the Tribunal.
4.The Applicant has made a valid application because at the time the review application was lodged, the Applicant was identified in a nomination under s.140GB of the Act, with an outcome that was pending.
5.The Tribunal misapplied the law by finding that the decision was not reviewable and it had no jurisdiction.
The parties filed written submissions in advance of the hearing. At hearing the applicant was represented by Counsel and the first respondent represented by a solicitor each of whom made oral submissions, and at the conclusion of which leave were granted leave to file supplementary submissions addressing matters which emerged during the course of the hearing. The parties each availed themselves at the grant of leave, with the first respondent’s submissions being prepared by Counsel retained, it seems, for that task only. I have been assisted by all of those submissions.
Relevant legislation
The review powers of the Tribunal are found in Part 5 of the Act and, specifically, s 338 of the Act defines whether a decision is reviewable by the Tribunal. Relevantly, s 338(2) states:
Definition of Part 5-reviewable decision
…
(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 a Part 5-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.
Section 337 of the Act defines “sponsored” as having the same meaning as in the Regulations. Regulation 4.02(1AA) (at the relevant time) stated:
For section 337 of the Act, sponsored includes being identified in a nomination under section 140GB of the Act.
Section 140E of the Act states:
140E Minister to approve sponsor
(1) The Minister must approve a person as a sponsor in relation to one or more classes prescribed for the purpose of subsection (2) if prescribed criteria are satisfied.
(2) The regulations must prescribe classes in relation to which a person may be approved as a sponsor.
(3) Different criteria may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be approved as a sponsor; and
(c) different classes of person within a class in relation to which a person may be approved as a sponsor.
Section 140GB confers upon the Minister an express power to prescribe Regulations in relation to the nomination process for visas:
140GB Minister to approve nominations
(1)A person who is, or who has applied to be, an approved work sponsor, or a person who is a party to negotiations for a work agreement, may nominate:
(a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant's proposed occupation; or
(ii) the program to be undertaken by the applicant or proposed applicant; or
(iii) the activity to be carried out by the applicant or proposed applicant; or
(b) a proposed occupation, program or activity.
(2) The Minister must approve a person's nomination if:
(a) in a case to which section 140GBA applies, unless the person is exempt under section 140GBB or 140GBC--the labour market testing condition under section 140GBA is satisfied; and
(b) in any case--the prescribed criteria are satisfied.
(3) The regulations may establish a process for the Minister to approve a person's nomination.
(4) Different criteria and different processes may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be approved as a work sponsor.
Regulation 2.56 of the Regulations nominated, for the purposes of s 140A of the Act (which applies to s 140GB), visas including Subclass 457 visas and Subclass 482 visas.
In Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365 (Ahmad appeal) the Full Federal Court provided an excellent distillation of the legislative history of the relevant provisions of the Act and Regulations which underpin the questions arising for consideration: see the Ahmad appeal at [25] to [56]. It is therefore unnecessary to re-summarise those matters here. However, full regard has been given to that summary insofar as it applies equally to the instant matter with the exception of the effect of the Amending Regulation. For reasons which are outlined below, I have found it unnecessary to consider the subsequent effect of the Amending Regulation on the Subclass 457 visa because the resolution of the question of whether or not the Tribunal had jurisdiction to review the delegate’s decision is answered by an interpretation of s 338 of the Act by reference to existing authority.
Jurisdiction
There are a plethora of factual combinations which can fall for consideration in the analysis of the Tribunal’s jurisdiction under s 338(2)(d) of the Act because of multiple mechanisms which feed into this underlying visa type. namely, a process for the approval of sponsors, a process undertaken by those sponsors of nominating persons which in turn enables those nominees to apply for a visa, and then the visa application process itself.
Variations in the order in which:
(a)those processes take place;
(b)decisions are made in respect of each of those processes; and
(c)said decisions are sought to be reviewed;
yield an almost limitless array of situations to consider.
Further, when set against the provisions of the Act and Regulations and the fact that the underlying visa subclass contain both “time of application” and “time of decision” criteria, the question of whether a Tribunal has jurisdiction can be extremely complex. The instant case exhibits many of those complexities and at first blush has an added legislative spanner in the interpretive works, being the intervening repeal of the Subclass 457 visa.
In the Ahmad appeal, the Full Federal Court had cause to consider a number of decisions in which various factual permutations arose for assessment so as to answer the s 338 jurisdictional question. While of the Ahmad appeal, the cases heard concurrently with it (see Sharma v Minister for Immigration and Border Protection [2015] FCAFC 180; El Masri v Minister for Immigration and Border Protection [2015] FCAFC 181) and the cases primarily considered by it (namely Minister for Immigration and Border Protection v Lee[2014] FCCA 2881; Kandel v Minister for Immigration and Border Protection[2015] FCCA 2013) none was precisely on all fours with the present case, in combination they provide a resolution.
Relevant authorities
The relevant starting point in considering this issue is the decision of Minister for Immigration and Citizenship v Islam (2012) 202 FCR 237. In that matter, Robertson J found the following at [40] to [42]:
By reason of the operation of reg 2.72, particularly reg 2.72(5), the Minister must approve a proposed occupation under s 140GB(1)(b) where, relevantly, the Minister is satisfied that the person has identified in the nomination the applicant for the visa, who will work in the nominated occupation….
If the nomination of the occupation has been approved under s 140GB then the approved sponsor, being a party to a work agreement (other than a Minister), must have satisfied the Minister that the applicant for the visa has been identified in the nomination under s 140GB.
This is the language of the opening words of s 338(2)(d) read with reg 4.02(1AA), that is, that it was a criterion for the grant of the visa that the non-citizen is identified in a nomination under s 140GB of the Act (by an approved sponsor).
The next authority of relevance is the decision of his Honour Judge Nicholls in Lee in which the Minister was the applicant to this Court.
In Lee the approved nomination had lapsed (and no other nomination was sought to be obtained) such that there was no relevant nomination at the time that the applicant for review was made to the Tribunal.
His Honour observed that cl 457.223(4)(a) of the Regulations requires that an approval under s 140GB has not ceased, which is reflected in the language of s 338(2)(d). The Court found, seemingly applying Islam, that s 338(2)(d)(i) required that there be a nomination of an occupation in relation to the applicant which had been “approved” under s 140GB of the Act (at [45]) but that, on the facts before it, the requirement that the visa applicant be sponsored at the time of the application for review could not be satisfied in circumstances where the approval, albeit given at some antecedent point, had ceased or did not have currency as at the time of the application for review (at [46] to [47]).
To the extent that in Lee his Honour reasoned there must be an “approved” nomination in order to satisfy s 338(2)(d)(i) this was not correct because, having regard to reg 4.02(1AA), the requirements of s 338(2)(d)(i) could equally be satisfied by there being a nomination under s 140GB approval of which remained pending as at the time of the application to the Tribunal. However, because in Lee the nomination had lapsed entirely, the outcome was unaffected by the incorrect interim step.
Next in time was the first instance decision of Ahmad v Minister for Immigration and Border Protection & Anor [2015] FCCA 1486 (Ahmad) involving judicial review of a decision in which the Tribunal it found it did not have jurisdiction in circumstances where the nomination had been refused, and the visa decision also. On a later date, a review application in respect of the refusal of each of the nomination decision and the visa decision were lodged, in that order. The Tribunal invited the applicant to comment on the question of jurisdiction and ultimately found that as a result of the decision in Lee s 338(2)(d)(i) required that there must be “a nomination of an occupation approved and in force” and that, because there was not such an approval that the time the applicant lodged the review application, the Tribunal did not have jurisdiction.
In the Ahmad appeal, the Full Federal Court summarised the decision of the primary judge thusly at [21] to [23]:
21 At [3] the primary judge noted that the parties were agreed that, at the time of the making of the application for review of the visa decision, the Minister had not approved the nomination under s 140GB(2) in respect of the appellant. The primary judge further noted that Mr Ahmad’s counsel accepted that the FCCA would follow the earlier decision of Judge Nicholls in Lee. The primary judge added that, to the extent relevant, Lee was consistent with the principles identified in Robertson J’s decision in this Court in Minister for Immigration and Citizenship v Islam [2012] FCA 195; 202 FCR 46. As will emerge, see [66] below, the primary judge took a different view on this issue in a subsequent decision, largely as a result of concessions which were made by the Minister in that other case that this aspect of Lee was incorrect.
22 The primary judge then turned his attention to Mr Ahmad’s reliance on s 338(2)(d)(ii). Mr Ahmad submitted before his Honour that this provision implicitly included a decision not to approve a sponsor nomination. That construction was rejected, primarily because the primary judge concluded that:
(a) the reference to the phrase “the sponsor” in s 338(2)(d)(ii) did not pick up the meaning of the word “sponsored” as it appeared in reg 4.02(1AA);
(b) after noting that the Migration Act dealt with two different processes (i.e. one relating to the decision to approve a sponsor and the other relating to the decision to approve the nomination), his Honour found that the reference in s 338(2)(d)(ii) to the requirement that there be on foot an application to review a decision not to approve the sponsor, was a reference to a person who has applied to be an approved sponsor under s 140E (and not a review of a nomination decision);
(c) the reference in s 338(2)(d)(ii) to the sponsor was a reference to the person who was an approved sponsor, consistently with the definition in s 5 of the Migration Act;
(d) to the extent that s 18A of the Acts Interpretation Act 1901 (Cth) (AIA) was of any assistance, the primary judge stated that it supported the meaning of “approved sponsor” as defined in s 5 as being the person to whom “the sponsor” was referring in s 338(2)(d)(ii); and
(e) extrinsic materials did not support Mr Ahmad’s argument.
23 For these reasons, the primary judge held that the Tribunal was correct to conclude both that it had no jurisdiction and also that s 338(2)(d)(ii) of the Migration Act had no application to this case.
Approximately 5 months after deciding the first instance decision in Ahmad, the same primary Judge delivered the judgment in Kandel, in which his Honour found:
9. The applicant submitted that the decision of Minister for Immigration and Citizenship v Islam (2012) 202 FCR 46 did not support a requirement that there must be an approved nomination of an occupation at the time of the application for review, but in fact supported the proposition that s.338(2)(d) must be read with reg.4.02(1AA) so that it included relevantly in this case, the applicant, being a person who is identified within nomination under s.140GB by an approved sponsor. The applicant submitted that the decision in Minister for Immigration v Lee & Ors [2014] FCCA 2881 was inconsistent with the observations of Robertson J in Minister for Immigration and Citizenship v Islam (2012) 202 FCR 46 and in light of the passages referred to above from Islam was plainly wrong.
…
11. I accept the applicant’s submission that the reference to or nominated in 338(5) and (8) does not support the construction that was adopted in Lee or the decisions of this Court following Lee. I accept the applicant’s submission that this Court is bound by the principles recognised by Robertson J in Islam and specifically that s.338(2) must be read with reg.4.02(1AA).
12. The question of whether the Tribunal had jurisdiction turned on what are in substance jurisdictional facts. I find that an application for nomination identifying the applicant was lodged prior to the time of the lodging of the application for review. I find that in these circumstances the applicant met the criteria under s.338(2)(d)(i). I find that the Tribunal had jurisdiction.
In Kandel, the Minister was granted leave to file further submissions in which he accepted that the terms of sub-regulation 4.02(1AA) and s 338(2)(d)(i) of the Act would be satisfied if there is a nomination pursuant to s 140GB(1) of the Act which has yet to be decided at the time of the application for review (at [16]).
With the benefit of those concessions and the divergence of outcome between Ahmad at first instance and Kandel (as noted above, being decisions of the same primary Judge), the appellant in the Ahmad appeal relied on Kandel.
In so doing, the following was advanced for the appellant, and warrants being set out in full (see the Ahmad appeal at [77], emphasis added):
The proper construction of s 338(2)(d)(i): [Counsel for the applicant] relied on Kandel on the question whether the Tribunal had jurisdiction under s 338(2)(d)(i). He contended that it was evident in Kandel that the primary judge did not accept the Minister’s contention that it was necessary for the nomination decision to be pending at the time of the application for review of the visa decision for the purposes of s 338(2)(d)(i). Jurisdiction persisted even where the nomination had lapsed: the visa applicant might be able to obtain a fresh sponsor and approved nomination. [Counsel for the applicant] contended that that reasoning was correct and should be applied here. In particular, it was submitted that it was sufficient that, at the time an application is made to the Tribunal for review of a visa decision, the visa applicant has been identified in a nomination at an earlier point in time. Such a construction, so it was submitted, was consistent with the mischief to which that provision is addressed, which [Counsel for the applicant] contended is the same as that addressed by s 338(2)(d)(ii).
The “mischief” referred to at [77] in the Ahmad appeal refers to the Full Federal Court’s consideration earlier in that judgment (at [33]) to extrinsic materials being the Explanatory Memorandum to the Bill which introduced the amendment to s 338(2)(d) which the Full Federal Court set out as aiming to:
prevent abuse of the merits review process by certain temporary visa applicants who failed to meet the sponsorship requirements of their visa”. It was stated that the new s 338(2)(d) was intended to:
… ensure that only those visa applicants who have an approved sponsor, or are seeking review of a decision to refuse to approve sponsorship, may apply to the MRT for review of a decision to refuse to grant a prescribed visa. This is to prevent abuse of the merits review process by refused visa applicants, who have no sponsor, and therefore no ability to meet the criteria for the grant of the visa, seeking to extend their stay in Australia by lodging a review application.
Having considered the parties’ respective contentions in the Ahmad appeal, relevantly the Full Federal Court reasoned (as follows at [110] and [113]) by reference to the propositions advanced by the applicant as set out in [77] of the decision (emphasis added):
[110] For the reasons given above, the text of the relevant provisions, when viewed in context, supports the construction propounded by [the applicant] (see [77] above). The reference to the harshness of the consequences produced by the Minister’s construction is a secondary consideration which serves to reinforce the conclusion that the proper construction is the narrower construction.
…
[113] Although it is unnecessary to decide, we indicate that we would not be disposed to accept the broader submission put by [the applicant] that s 338(2)(d)(i) is satisfied where, at the time of the application for review of the visa decision, the visa applicant had previously been identified in a nomination, even if the nomination decision were adverse (and an application for review of that decision had not been made) or the nomination had by then lapsed.
Resolution
The applicant says the Tribunal was wrong to find that it lacked jurisdiction. In so doing, the applicant also urges on the Court resolution of questions which properly fall to the Tribunal as part of the assessment of the substantive merits of the visa application. This is a task which, because of its somewhat circular finding that it lacked jurisdiction, the Tribunal has not properly undertaken.
In the Ahmad appeal the Full Federal Court said this at paragraph [95]:
the starting point must be whether, within the meaning of s 338(2)(d), it is a criterion for the grant of the visa that the non-citizen…“is sponsored by an approved sponsor”.
As set out above, having considered the earlier decisions in Islam, Lee and Kandel, the Full Federal Court in Ahmad found (at [111]) that for the purposes of s 338(2)(d)(i), “sponsored” includes being identified in a nomination under s 140GB. Prior to the applicant lodging his application for review with the Tribunal (at 3.06pm on 30 July 2018), the sponsor lodged (at 12.29pm that day) the second nomination naming the applicant as nominee, which was subsequently approved.
It is tolerably clear from the Full Federal Court’s reasons in the Ahmad appeal at [77], [110] and [113] that the original nomination could not satisfy the definition of being “identified in a nomination”, because the original nomination had ceased. In this case, that leaves only the second nomination for consideration as potentially enlivening jurisdiction.
The Tribunal accepted that the sponsor was an approved sponsor for the purposes of s 140E of the Act at the time of the application for review (CB 117 at [10]) and that at the time of the application for review, the second nomination constituted a pending nomination in which the applicant was identified.
For the purposes of s 338(2)(d), it was a criterion for the grant of the visa (being the Subclass 457 visa) that the non-citizen (applicant) was sponsored by an approved sponsor.
Further, each of Subclasses 457 and 482 were relevantly visas of “a prescribed kind” being so prescribed by reg 4.02 of the Regulations.
Contrary to what was found by the Tribunal, the applicant places significance on what is lacking from the language of s 338(2)(d). Namely, that there is no requirement that the approved nomination attach to the visa which is the subject of the decision under review. While the chapeau of s 338(2)(d) refers to “the visa” s338(2)(d)(ii) only requires that the applicant be identified in “an approved nomination” (emphasis added).
The applicant contends that since it was open to the legislature to specify the precise visa in respect of which the sponsorship attached, but it did not and so the Court should assume it was a conscious choice to not to do. The applicant says that the question of whether the Tribunal has jurisdiction in this matter is not governed by whether an approved nomination for a Subclass 482 visa can satisfy the visa criteria for a Subclass 447 visa, and I agree.
The Tribunal made a peremptory finding, without referring to the relevant Amending Regulation (or its savings and transitional provisions) to conclude that because that the nomination could not ultimately satisfy the visa criteria, it had no jurisdiction. The matters are separate and sequential and, in reasoning the way it did, the Tribunal put the cart before the jurisdictional horse.
The question of whether the second nomination would suffice to satisfy the visa criterion such that cl 457.223 of the Regulations was also satisfied, was a matter which it needed to consider as part of a substantive assessment of whether the applicant met the criteria for the grant of the visa. It was not open to the Tribunal to find in this case that because the applicant could not ultimately satisfy a visa criterion (which is not a matter for the Court to determine for itself absent the Tribunal having properly done so), it therefore had no jurisdiction.
The prism through which that jurisdiction was to be assessed was s 338(2)(d). The applicant objectively satisfied that section by being the subject of “an” approved nomination. At paragraph [14] the Tribunal mirrored the language of s 338(2)(d)(i) with one notable addition when it said that “the applicant was not identified in a relevant nomination” (emphasis added). The addition of the word “relevant” into the language of the statute imported the Tribunal’s earlier interpretation of s 140GB as meaning that “a visa of a prescribed kind” must meant a visa of the same Subclass. This was in error.
As a result, the Tribunal erred in finding that it did not have jurisdiction. The question of whether the applicant can satisfy the visa criteria is a matter for the Tribunal, and it alone, and is a task which thus far the Tribunal is yet to properly undertake.
Questions pertaining to the legal impossibility of the applicant obtaining a nomination after 18 March 2018, the effect of the Amending Regulation, any accrued rights the applicant may have and the potential harshness of the outcome of a substantive assessment of the visa criteria by the Tribunal are arguments which the applicant can raise in the review for consideration by the Tribunal as part of it undertaking the review task and determining for itself whether the applicant satisfies the criteria for the relevant visa. Those questions may then be agitated in this Court if the review outcome is unfavourable to the applicant and he seeks judicial review thereof. However, the time for that to occur is once the Tribunal has exercised the jurisdiction which it has in relation to the review application.
Based on the facts and circumstances of this matter I am satisfied that the applicant has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error insofar as the Tribunal erred by incorrectly finding that it did not have jurisdiction to review the decision of the delegate, as alleged by ground 1.
Accordingly, I will grant relief in the form of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 12 August 2022
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