Xia v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1944
•23 August 2021
Federal Circuit Court of Australia
Xia v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1944
File number(s): MLG 3186 of 2018 Judgment of: JUDGE EGAN Date of judgment: 23 August 2021 Catchwords: MIGRATION – Novel application for review of a decision of a delegate – whether rights of applicant were extinguished because of both a failure to be physically within the migration zone at the time of the handing down of the delegate’s decision, and at the time of the making of the review application to the Administrative Appeals Tribunal – whether Federal Circuit Court had jurisdiction to hear and determine the amended application for review of the decision of the delegate on the basis that it was vested with the same original jurisdiction as the High Court in respect of migration decisions – finding that Court lacked jurisdiction – application for review dismissed. Legislation: Constitution Act 1901 (Cth), s. 75.
Migration Act 1958 (Cth), ss. 5, 338, 347(3A) and 476.
Migration Regulations 1994 (Cth), Sch 1, cl 1114B, Sch 2, cll 186.233(3), 186.411.
Cases cited: Gajjar v Minister for Immigration and Citizenship (Matter No B37 of 2012).
Mora v Minister for Immigration and Border Protection (2018) 78 AAR 276.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.Number of paragraphs: 32 Date of last submission/s: 18 August 2021 Date of hearing: 4 March 2021, 15 April 2021, 4 August 2021, 18 August 2021. Place: Brisbane Solicitor for the Applicants: A.J Torbey & Associates Counsel for the Applicants: Mr L. Boccabella Solicitor for the First Respondent: Mr D. Brown of Australian Government Solicitor Second Respondent: Submitting appearance save as to costs ORDERS
MLG 3186 of 2018 BETWEEN: SUI XIA
First Applicant
ZIXIA TAN
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
23 August 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The Amended Application for Review filed on 9 October 2020 be dismissed.
3.The Applicants pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The first applicant is a citizen of the Peoples Republic of China. The second applicant, as the son of the first applicant, was included in the first applicant’s application for an Employer Nomination Scheme (Class EN) (Sub Class 186) visa. The first applicant indicated in her visa application that she had applied for the position of a marketing specialist with a company named Le Desire Co Pty Ltd. That company had contemporaneously made application for a position nomination in respect of the marketing specialist occupation.
On 11 June 2018, a delegate of the Minister refused the position nomination application made by Le Desire Co Pty Ltd. An Application for Review of that decision of the delegate was made to the Administrative Appeals Tribunal (‘the Tribunal’) on 29 June 2018.
On 1 August 2018, a delegate of the Minister refused the visa application made by the first applicant on the basis that the first applicant did not meet a number of criteria required to be satisfied prior the Minister approving the visa application. One such criterion was that the nomination application made by Le Desire Co Pty Ltd was required to be approved by the Minister as provided for in cl. 186.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).
An application for review of the decision of the delegate was lodged with the Tribunal on behalf of the first applicant and the second applicant on 21 August 2018.
On 14 September 2018, the Tribunal found that it did not have jurisdiction to entertain the application for review filed on behalf of the first applicant and the second applicant. By way of explanation, at [2] – [3] of its reasons, the Tribunal said as follows:
“[2] The review application was lodged with the Tribunal on 21 August 2018. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
[3] Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(7A), an application for review may only be made by the non-citizen who is the subject of the decision and who is physically present in the migration zone when both the primary decision and the application for review are made: s.347(2)(a) and (3A). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.”
On 19 October 2018, the applicants filed an Originating Application for Review of the decision of the Tribunal. The applicants also sought an extension of time for the bringing of such application.
On 22 June 2020, a differently constituted Tribunal handed down a decision in favour of Le Desire Co Pty Ltd in respect of its application to the Tribunal for review of the delegate’s decision to refuse its nomination application.
Grounds of Review
The Originating Application for Review filed on 19 October 2018 sought a review of the decision of the Tribunal to dismiss the review application made to it. The three grounds for review were set out on pages 4 – 6 inclusive of that application. The final orders sought by the applicants in that application were as follows:
ÿ “An order that the two decision of the Minister of Home Affairs be quashed.
ÿ A writ of mandamus directed to the Tribunal and the Minister, requiring them to determine the applicants’ applications according to law.
ÿ If the above order and writ were not granted, a declaration that the Second Respondent has the jurisdiction on the review of the Applicants’ visa 186 refusal decision made by the First Respondent.
ÿ If the above declaration were not granted, wait for the review decision of AAT on the nomination application, AAT file number 1819072, then FCCA makes a fair decision on Primary Applicant’s visa 186 application.”
The Court infers that the “two decision[s] of the Minister of Home Affairs” referred to in the first order sought in the Originating Application were the decisions to refuse each of the nomination application of the first applicant’s visa application.
On 9 October 2020, the applicants filed an Amended Application for Review. That Amended Application abandoned each of the final orders sought in the Originating Application. The final orders sought in the Amended Application were as follows:
“1. The decision (dated 1 August 2018) of the delegate of the first respondent be quashed;
2. A writ of mandamus directed to the first respondent requiring him to determine the applicant’s subclass 186 visa application according to law.
3. A declaration that the applicant is validly nominated in accordance with clause 186.233 of Schedule 2 to the Migration Regulations 1994.
4. Such further or other order as the court considers appropriate.
5. The costs of this application be paid by the first respondent.”
The decision of the delegate “dated 1 August 2018” referred to in the first order sought in the Amended Application, as last referred to, was the decision of the delegate to refuse the visa application. [1]
[1] Exhibit 1 - Court Book pp. 135 - 139
As submitted on behalf of the first respondent, the final orders sought in the Amended Application were substantially different from those originally sought, in that by the amendment, the applicants purported to invoke the jurisdiction of the Federal Circuit Court for the purpose of quashing the decision of the delegate, rather than for the purpose of quashing the decision of the Tribunal. That was also the case advanced at the hearing before the Court.
The grounds of review in the Amended Application for Review were as follows:
“Ground 1: The decision of the Administrative Appeals Tribunal in Case No 1819072 made on 22 June 2020, meant there was no legal basis for the decision of the delegate to refuse the visa application by the applicants.
Ground 2: In accordance with the reasoning of the Federal Court in Mora v Minister for Immigration and Border Protection [2018] FCA 1819 at paragraph [55], once the nomination approval was made by the AAT, the decision of delegate in relation to the visa cannot stand.”
During the course of the hearing, the Court was invited to have regard to the following provisions of the Constitution Act 1901 (Cth) and of the Migration Act 1958 (Cth) (‘the Act’):
“Section 75 of the Constitution Act 1901 (Cth) – Original jurisdiction of High Court
In all matters:
(i) arising under any treaty;
(ii) affecting consuls or other representatives of other countries;
(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
(iv) between States, or between residents of different States, or between a State and a resident of another State;
(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.”
…
“Section 5 Interpretation
"migration zone" means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port; and
(c)piers, or similar structures, any part of which is connected to such land or to ground under such sea;”
…
“Section 338 Definition of Part 5–reviewable decision
(1) A decision is a Part 5‑reviewable decision if this section so provides, unless:
(a) the Minister has issued a conclusive certificate under section 339 in relation to the decision; or
(b) the decision is a Part 7‑reviewable decision; or
(c) the decision is to refuse to grant, or to cancel, a temporary safe haven visa; or
(d) the decision is a fast track 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) if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non‑citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii) a review of a decision under section 140E not to approve the sponsor of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or
(iii) a review of a decision under section 140GB not to approve the nomination of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or
(iv) except if it is a criterion for the grant of the visa that the non‑citizen is identified in an approved nomination that has not ceased under the regulations—the non‑citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
(3) A decision to cancel a visa held by a non‑citizen who is in the migration zone at the time of the cancellation is a Part 5‑reviewable decision unless the decision:
(a) is covered by subsection (4); or
(b) is made at a time when the non‑citizen was in immigration clearance; or
(c) was made under section 133A or 133C, subsection 134(1), (3A) or (4) or section 501; or
(d) was made personally by the Minister under section 109 or 116 or subsection 140(2).
(3A) A decision under section 137L not to revoke the cancellation of a non‑citizen’s visa is a Part 5‑reviewable decision if the non‑citizen was in the migration zone when the decision was made.
(4) The following decisions are Part 5‑reviewable decisions:
(a) a decision to refuse to grant a bridging visa to a non‑citizen who is in immigration detention because of that refusal;
(b) a decision of a delegate of the Minister to cancel a bridging visa held by a non‑citizen who is in immigration detention because of that cancellation.
(5) A decision to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) the non‑citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) a company that operates in the migration zone; or
(iii) a partnership that operates in the migration zone; or
(iv) the holder of a permanent visa; or
(v) a New Zealand citizen who holds a special category visa.
(6) A decision to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) a criterion for the grant of the visa is that the non‑citizen has been an Australian permanent resident; and
(c) a parent, spouse, de facto partner, child, brother or sister of the non‑citizen is an Australian citizen or an Australian permanent resident.
Note:Section 5G may be relevant for determining family relationships for the purposes of this subsection.
(7) A decision to refuse to grant a non‑citizen a visa is a Part 5‑reviewable decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) a criterion for the grant of the visa is that the non‑citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non‑citizen; and
(c) particulars of the relative concerned are included in the application.
Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.
(7A) A decision to refuse to grant a non‑citizen a permanent visa is a Part 5‑reviewable decision if:
(a) the non‑citizen made the application for the visa at a time when the non‑citizen was outside the migration zone; and
(b) the visa is a visa that could be granted while the non‑citizen is either in or outside the migration zone.
(8) A decision, under section 93, as to the assessed score of an applicant for a visa is a Part 5‑reviewable decision if:
(a) the visa is a visa that could not be granted while the applicant is in the migration zone; and
(b) the applicant, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) the holder of a permanent visa; or
(iii) a New Zealand citizen who holds a special category visa; and
(c) the Minister has not refused to grant the visa.
(9) A decision that is prescribed for the purposes of this subsection is a Part 5‑reviewable decision.”
…
“Section 347 Application for Review of Part 5-reviewable decisions
(3A) If the Part 5‑reviewable decision was covered by subsection 338(7A), an application for review may only be made by a non‑citizen who:
(a)was physically present in the migration zone at the time when the decision was made; and
(b)is physically present in the migration zone when the application for review is made.”
…
“Section 476 Jurisdiction of the Federal Circuit Court
(1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2) The Federal Circuit Court has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA;
(d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3) Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non‑privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.
(4) In this section:
primary decision means 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 been so reviewable if an application for such review had been made within a specified period; or
(c) that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).”
The Schedule 1 criteria for the subclass 186 visa stated, as relevant:
“Item 1114B Employer Nomination (Permanent) (Class EN)
(3) Other:
(a) ...
(b) An applicant may be in or outside Australia…”
The Schedule 2 criteria determined the “Circumstances applicable to grant” as follows:
“186.4 Circumstances applicable to grant
186.411
The applicant may be in or outside Australia when the visa is granted, but not in immigration clearance.”
The Court finds that it was the intention of Parliament that there was a distinction between where an applicant for a Sub Class 186 visa might be situated for the purpose of the making of a visa application, and the place where an applicant for such visa might be situated at the time of the grant of such visa application, as opposed to where such an applicant must be situated both at the time of the making of a delegate’s decision which was adverse to the applicant, as well as at the date of the making of a review application in respect of such decision. It was only in respect of the latter which rendered such decision reviewable. Why else would Parliament have enacted s. 347(3A), which specifically so provided?
At the hearing before the Court, it was conceded on behalf of the applicants that the applicants were non-citizens, and that they had not been within the migration zone at either the time that the delegate handed down their decision, or at the time that the application for review of that decision was made to the Tribunal. It was further conceded on behalf of the applicants that the first applicant’s visa application fell under each of s. 338(7A) and s. 347(3A) of the Act. [2]
[2] Paragraph 52 of applicants’ submissions filed on 10 August 2021.
On the question as to whether the Federal Circuit Court had jurisdiction to hear and determine the Amended Application for Review, it was submitted on behalf of the applicants that because s. 476(1) of the Act vested in the Federal Circuit Court the same original jurisdiction in relation to migration decisions as was vested in the High Court, it was the Federal Circuit Court to which the current application most properly ought to be made. At [8] – [12] inclusive of the applicants’ consolidated submissions filed on 10 August 2021, it was submitted as follows:
“[8] The respondent submits that all cases of this type must be heard and determined by the High Court in its original jurisdiction.
[9] The applicant submits that, rather than burdening the High Court with that function, this Court (the Federal Circuit Court) not only has the jurisdiction but once it has the jurisdiction this Court must exercise its supervisory function and determine as a question of jurisdiction and/or law, whether the decision of the delegate can stand.
[10] The core reason the applicant submits that this Court has jurisdiction is that the decision of the delegate, being a decision involving an offshore visa applicant, who was offshore when the person lodged the visa application and was offshore when the visa refusal decision was made, had no right of review to the AAT and never had a right of review to the AAT.
[11] Therefore, the applicant submits, if a person has no right of review to the AAT then the decision is NOT ‘reviewable’ by the AAT and hence the decision of the delegate in this case was not caught by the restriction found in s476(4) of the Migration Act.
[12] Quite properly, the Migration Act makes a distinction between a decision defined in s338 as “a Part 5-reviewable decision” in s338, but under s476 only excludes the jurisdiction of the Federal Circuit Court if it is “a privative clause decision or purported privative clause decision….that is reviewable under Part 5. Clearly the decision of the delegate in this case was never capable of being “reviewable under Part 5” because the applicant Ms Xia was not present in Australia when the visa application was lodged and was not present in Australia both at the time the visa refusal decision was made and as at the date of the expiry of the limitation period for bringing an application for review to the AAT (21 days after the visa refusal decision.”
On the question as to whether the Federal Circuit Court had jurisdiction to hear and determine the Amended Application, the first respondent relied upon a decision of Justice Kiefel (as Her Honour then was) in Gajjar v Minister for Immigration and Citizenship (Matter No B37 of 2012). It is most convenient for the judgment of Her Honour to be set out, in its entirety, as follows:
“Matter No B37 of 2012
GAJJAR
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP
The question presently before the Court in these proceedings is whether they may be remitted to the Federal Magistrates Court. The plaintiff brings these proceedings in the original jurisdiction of this Court because the Migration Review Tribunal has no jurisdiction under the Migration Act 1958 (Cth) to review the decision in question.
The plaintiff is a citizen of India and lodged an application for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled - Graduate) Visa on 9 January 2011. In order to qualify for the visa, he was required to satisfy the criterion of having competent English. A means of meeting this requirement was to undertake a test under the International English Language Testing System ("IELTS") and to score at least six for each of the test components. At the time he lodged his application he had not achieved that score. He subsequently undertook the test again, on 19 March 2011, and achieved the necessary score, but his migration agent did not inform the Department of Immigration and Citizenship of the result.
On or about 11 January 2012 the Minister's delegate made a decision to refuse the plaintiff's application and communicated that decision to the plaintiff by a letter dated 11 January 2012. The delegate had used the reference number which the plaintiff had provided to confirm the IELTS results, but the number provided by the plaintiff referred only to the earlier test. It would appear that the delegate was unaware of the results of the second test at the time the decision was made.
The plaintiff's agent lodged an application for review of that decision with the Migration Review Tribunal on 1 February 2012. Such a review, a review on the merits, may have enabled the Tribunal to take into account the second IEL TS results. However, the application made by the plaintiff to the Migration Review Tribunal was not competent. It was not "properly made" as s 348(1) requires, because s 347(3) states that an application for review of an MRT-reviewable decision which is covered by s 338(2) can only be made by a non-citizen who is physically present in the migration zone when the application for review is made. There is no dispute that the decision is covered by s 338(2). Subsequently, the Migration Review Tribunal, on 27 August 2012, advised that it did not consider it had jurisdiction. On 21 September 2012 l granted an extension of time to permit the filing of the plaintiff's application for an order to show cause.
As a result of the combination of s 476B(3) and s 476A(1)(b) and (c), the Federal Court does not have jurisdiction with respect to this migration decision. As a result, any question of remitter concerns remitter to the Federal Magistrates Court (s 476B(1)). Section 476B(2) has the effect that this Court must not remit to the Federal Magistrates Court a matter that relates to a migration decision unless the Federal Magistrates Court has jurisdiction under s 476 of the Migration Act. The question of remitter to the Federal Magistrates Court then turns upon s 476, sub-ss (2) and (4), which in relevant part provide:
“(2)The Federal Magistrates Court has no jurisdiction in relation the following decisions:
(a) a primary decision;
…
(4) In this section:
primary decision means 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 been so reviewable if an application for such review had been made within a specified period.”
The plaintiff contends that a decision is "reviewable" under Pt 5 only if it is capable of being reviewed by the Migration Review Tribunal in all the circumstances. That is to say, it is reviewable if the visa applicant is entitled to seek review and the Migration Review Tribunal has Jurisdiction to undertake the review. Here the effect of s 347(3) was that the plaintiff was not able to have the decision reviewed by the Migration Review Tribunal.
The defendant's submissions focus upon the nature of the decision to which s 476 refers. The defendant points out that the plaintiff could have placed himself in a position to bring the application within time. The Act is intended to operate with respect to all primary decisions as defined and not to take account of particular circumstances that may affect a visa applicant. The defendant points out that the plaintiff's construction would produce the odd result that a person who was not present in Australia at the time the application was made could have his or her application determined by the Federal Magistrates Court, whereas a person present in the migration zone would first have to apply to the Migration Review Tribunal.
The plaintiff submits that it is significant that s 476(4)(a) does not simply define the "primary decision" to be an MRT-reviewable decision (or an RRT-reviewable decision); rather, it relevantly refers to a privative clause decision "that is reviewable under Pt 5.” That is to say, the decision must have another quality, namely, that it be reviewable. The decision must be one in respect of which the visa applicant is entitled to make an application to the Migration Review Tribunal and which that Tribunal has the power to determine. This is said to be supported by the words in s 476(4)(b) which describe the decision as one "that would have been so reviewable" if the application for review had been brought in time. It may also be observed, in terms of legislative history, that a distinction has always been maintained between the expression "MRT-reviewable decision" in Pt 5 and "reviewable" in s 476(2), but it is less clear whether that difference of expression carries the force for which the plaintiff contends.
The evident purpose of s 476, sub-ss (2) and (4) is to require a visa applicant to seek review from the Migration Review Tribunal before resorting to the Federal Magistrates Court. Further, the section treats a decision as being "reviewable" even if that possibility is lost because the application for review is not brought in a timely way.
The references in the section to a decision being reviewable "whether or not it has been (in fact) reviewed", or whether it would have been if the application had been within time, direct attention to the quality of the decision rather than whether or not review is capable of being achieved. The section is concerned with decisions of a kind for which review is provided in Pt 5 or elsewhere. It would follow that it contemplates that the relevant Tribunal has jurisdiction to hear the review. However, that would be because the Act provides that jurisdiction. The section does not, inferentially, exclude from what is otherwise a reviewable decision, by reference to Pt 5, a decision in respect of which jurisdiction to review has been lost by reason of non-compliance with a provision such as s 347(3).
The plaintiff seeks to extend the notion of a reviewable decision beyond one for which review is simply provided to a decision for which review may be achieved, having regard to the circumstances pertaining to a particular visa applicant and whether or not the applicant can satisfy other provisions. The language and purposes of s 476 do not support such an interpretation. Its language suggests that the achievement of a review is not its concern. It says nothing about the effects of non-compliance with the Act upon review and may be taken to allow such effects to follow depending upon the nature of the non-compliance. In this case the effect is that the prospect of a review was lost and there is no alternative route to the Federal Magistrates Court provided.
The plaintiff also relies upon the Second Reading Speech of the Migration Litigation Reform Act 2005 (Cth), which inserted ss 476 and 4768 into the Migration Act in their current form. The Attorney-General there said:
“Migration cases file in the High Court’s original jurisdiction and remitted will be directed to the Federal Magistrates Court. … The High Court is the apex of our judicial system. It should not be burdened with cases that are more appropriately handled by a lower court.”
So much may be accepted. However, it cannot be said to follow that the Federal Magistrates Court, in this instance, has jurisdiction under s 476. Remitter is not possible.
The application for remitter is therefore refused. I will hear any application for costs at the hearing on 22 February 2013.
This page and the preceding six pages comprise my reasons for judgment concerning the application for remitter in Gajjar v Minister for Immigration and Citizenship.”
The Court does not accept the applicants’ submissions. The Court respectfully adopts what was held by Her Honour in Gajjar as being the evident purpose of s. 476(2) and (4) of the Act, namely, the requirement that a visa applicant seek review of a decision of a delegate by the Tribunal, rather than by this Court. Her Honour found that remitter was not possible due to the then Federal Magistrates Court not having jurisdiction to entertain the application. Such finding was made having regard to the submission then made on behalf of the applicant in Gajjar that the applicant was not able to have the relevant decision of the delegate reviewed by the Migration Review Tribunal.
An analogous submission was made on behalf of the applicants in the present matter, albeit, by way of an attempt to distinguish the facts of this matter from those in Gajjar. Relevantly, it was submitted on behalf of the applicants that because the applicants were offshore, and not within the migration zone, either at the time of the handing down of the delegate’s decision, or at the time of the making of the application for review of that decision to the Tribunal, the decision of the delegate was therefore not one which was ever capable of being reviewed by reason of the provisions of s. 347(3A) of the Act.
It was submitted on behalf of the applicants that the factual scenario in the present matter differed from that in Gajjar, in that the applicant in that case was at least present when the decision was handed down, it being said that such presence could have thereby enabled the applicant to make a review application (and therefore render the decision reviewable), before the applicant departed Australia. There is no merit to such argument.
Consistently with what was held by Her Honour Justice Kiefel in a similar statutory context in Gajjar, s. 476(4)(a) of the Act does not exclude, as a “reviewable” decision, a decision in respect of which the benefit of review has been lost by the conscious and deliberate act or omission of an applicant in placing themselves outside the migration zone at the respective times as provided for in s. 347(3A) of the Act. Section 476(4)(a) of the Act ought to be construed as referencing a decision of a delegate which was procedurally able to be reviewed at the time that it had been handed down, irrespective of whether a review application was ultimately made or not, and irrespective of whether the making of a review application was for any reason subsequently rendered nugatory.
Further, it cannot be accepted that Parliament intended that in circumstances where the relevant statutory scheme contemplated that Part 5-reviewable decisions were intended to be only reviewed by a duly constituted Administrative Appeals Tribunal, applicants could, by their non-compliance with the statutory scheme, circumvent such scheme by making a review application to the Federal Circuit Court.
The decision of the delegate was a primary decision as provided for in s. 476(4)(a) of the Act. This Court, pursuant to the provisions of s. 476(1) of the Act, did not have jurisdiction to review such a decision.
There is no merit to Ground 1 of the Amended Application for Review.
As to Ground 2 of the Amended Application, the Court accepts the submissions of the first respondent on point. The case of Mora v Minister for Immigration and Border Protection (2018) 78 AAR 276 is factually distinguishable from the facts of the present matter. In Mora, because the first appellant duly applied to the Tribunal for review of the visa refusal decision, both the Federal Circuit Court, and the Federal Court, had jurisdiction to make orders which relevantly affected the rights of the visa applicant. This Court was required to consider whether it had jurisdiction to entertain the application before it, namely an application for review of the decision of the delegate. For the reasons given in respect of Ground 1, the Court has found that it lacked jurisdiction to do so. Respectfully, the judgment in Mora did not effect this Court’s finding that it lacked jurisdiction
There is no merit to Ground 2 of the Amended Application for Review.
The applicants have failed to establish that this Court had jurisdiction to hear and determine the Amended Application for Review.
The Amended Application for Review, including as it did the application for extension of time for the making of the application, is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 23 August 2021
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