The parties' submissions
71 Mr O Jones, who appeared for Mr Ahmad, submitted that the relevant legislative regime concerning subclass 457 visas envisaged a "trilogy" of applications. The first was an application by a sponsor to be approved as a standard business sponsor. Section 140E(1) of the Migration Act required the Minister to approve a person as a sponsor if prescribed criteria were satisfied. Section 140E(2) provided that the Migration Regulations must prescribe classes in relation to which a person may be approved as a sponsor. Regulation 2.59 prescribed the criteria for approval as a "standard business sponsor". There is no dispute that RKP was an approved standard business sponsor.
72 The effect of s 338(9) of the Migration Act, when read with reg 4.02(4)(a) of the Migration Regulations, was that a refusal by the Minister to grant an approval under s 140E(1) of the Migration Act was a "MRT-reviewable decision" for the purposes of s 338(2).
73 The second application related to the approval of a standard business sponsor's nomination. Relevantly, s 140GB(1) of the Migration Act enabled an approved business sponsor to nominate an applicant or a proposed applicant for the visa in relation to the applicant's or proposed applicant's proposed occupation. Section 140GB(2)(b) obliged the Minister to "approve an approved sponsor's nomination" if the prescribed criteria were satisfied. Those criteria were prescribed in regs 2.72(3) to (12) (see also reg 2.72(1)(a)).
74 The third application related to the Minister's decision to grant or refuse a visa under s 65 of the Migration Act. If the Minister refused the application, that refusal was reviewable to the extent that this was provided for under s 338 (the terms of which are set out in [30] above).
75 Mr Jones identified two central issues of construction relating to ss 338(2)(d)(i) and (ii) respectively:
(a) what is the scope of the expression "being identified in a nomination under section 140GB of the Act" in reg 4.02(1AA) of the Migration Regulations; and
(b) what is the "decision not to approve the sponsor" to which s 338(2)(d)(ii) of the Migration Act refers?
76 It is convenient to summarise separately Mr Jones' submissions in respect of these two provisions.
77 The proper construction of s 338(2)(d)(i): Mr Jones 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. Mr Jones 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 Mr Jones contended is the same as that addressed by s 338(2)(d)(ii).
78 Mr Jones contended that the extrinsic materials supported his argument that "sponsorship" includes nomination, referring in particular to the extract from the Explanatory Memorandum to the Bill which became the 2003 Amendment Act which is set out in [33] above.
79 Mr Jones submitted that the target mischief was not offended 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 was adverse or the nomination had by then lapsed. He added that, having been identified in a nomination previously, it could not necessarily be said that such an applicant had no prospect of being subsequently identified in a nomination and there being a positive nomination decision. It might be noted that this contention is inconsistent with the Minister's position that Lee was correctly decided on its own facts, because the nomination there had lapsed.
80 Mr Jones also advanced a narrower construction of the relevant provisions. He submitted that, even if the Minister was correct in relation to this aspect of Lee, the facts here put Mr Ahmad in a different position because, at the time he applied for a review of the visa decision, he also had pending an application for review of the nomination decision. Accordingly, there was a prospect of the nomination decision being reversed and him gaining nomination. The fact that the nomination decision was, in fact, ultimately affirmed by the Tribunal at a later time was not the point, so it was contended, because to the extent that a pending nomination was required under s 338(2)(d)(i), that requirement operated only at the time of the application for review of the visa decision.
81 The proper construction of s 338(2)(d)(ii): Mr Jones' contentions in respect of s 338(2)(d)(ii) may be summarised as follows.
82 First, Mr Jones submitted that the phrase "decision not to approve the sponsor" was a broad one and, on its ordinary meaning, should not be confined to mean a decision not to approve the sponsor as a sponsor. Rather, it should include a decision not to approve the sponsor in any way, including not to approve the sponsor's nomination of a visa applicant for a proposed occupation.
83 Secondly, Mr Jones submitted that the term "sponsor" should be given a broad meaning by way of implication under interpretation legislation. Section 337 of the Migration Act defined "sponsored" to mean the same as it does in the Migration Regulations. Regulation 4.02(1AA) provided that the term "includes being identified in a nomination under section 140GB of the Act". Section 18A of the AIA provided that where a word or phrase is given a particular meaning, other parts of speech have corresponding meanings. The word "sponsored" is a participle, but the same meaning should be given when the word appeared in s 338(2)(d)(ii) as a noun (viz "sponsor"). The primary judge erred in refusing to apply s 18A of the AIA, so it was submitted.
84 Thirdly, Mr Jones contended that his constructions of the relevant provisions were justified so as to avoid the "harsh result" which would otherwise follow under the Minister's construction.
85 Mr G Kennett SC (who appeared with Mr T Reilly for the Minister) submitted that the task of construing both s 338(2)(d)(i) and (ii) should begin and end with consideration of the statutory text in its context, citing Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] and Alcan (NT) Alumina Pty Ltd v Federal Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47].
86 The proper construction of s 338(2)(d)(i): As to the appellant's reliance on Kandel in respect of s 338(2)(d)(i), the Minister submitted that the approved sponsor there had identified the visa applicant in a new application for nomination which was made shortly prior to the application to the Tribunal for review of the decision refusing the applicant the visa, and which remained undecided at that time. The Minister stated that he had conceded in Kandel that the Tribunal had jurisdiction under s 338(2)(d)(i), having regard to reg 4.02(1AA) and the express provision there that, for the purposes of s 337 of the Migration Act, sponsored included being identified in a nomination under s 140GB. The Minister also acknowledged that he had conceded in Kandel that s 338(2)(d)(i) would also be satisfied if there was a nomination application pursuant to s 140GB(1) which was yet to be decided at the time of the making of the application to the Tribunal for review.
87 The Minister submitted, however, that the facts here were different from those in Kandel. Here there was no nomination pursuant to s 140GB which was yet to be decided at the time of the making of the application to the Tribunal for review of the visa decision. Rather, the nomination here had been rejected and a review of that decision had been sought by the sponsor and was still to be determined, a set of circumstances which the Minister submitted was not covered by Kandel.
88 The Minister opposed both the broader and narrower constructions advanced on behalf of the appellant. As to the broader construction, the Minister relied on Judge Nicholls' rejection of that argument in Lee at [48]. He submitted that Lee was correct in this respect in holding that there was no jurisdiction where the relevant nomination had ceased or did not have currency as at the time of the application for review. He also submitted that a nomination was effectively spent if it was refused by the delegate. He accepted, however, that in those circumstances a fresh nomination application could be made and, if that occurred before the application for review of the visa decision was made to the Tribunal, the Tribunal would have jurisdiction in respect of that review application. That was because the nomination application was pending. He submitted, however, that s 338(2)(d)(i) required a set of circumstances in which the appellant "is sponsored" in the relevant sense at the time the review application is made and that it was insufficient that the appellant was sponsored at some antecedent point in time.
89 As to the narrower construction, the Minister submitted that it was insufficient to confer jurisdiction upon the Tribunal in relation to an application to review an adverse visa decision if at the time that application was made an application was also on foot seeking a review of an adverse nomination decision. The Minister sought to defend his position on this issue on the basis that the delegate's refusal of the nomination application rendered the initial nomination "spent".
90 As noted above, in Kandel, the Minister acknowledged that Lee was incorrect in suggesting that there must be an "approved" nomination of an occupation for the Tribunal to have jurisdiction. The Minister conceded that, having regard to the terms of reg 4.02(1AA) (which stated: "For section 337 of the Act, sponsored includes being identified in a nomination under section 140GB of the Act"), s 338(2)(d)(i) would also be satisfied if there was a nomination under s 140GB(1) which was yet to be determined at the time of the making of the application for review to the Tribunal.
91 It is notable that reg 4.02(1AA) did not specify the point in time at which the identification in a nomination under s 140GB must occur. The Minister's position was that the relevant time is the time when the application for review was made to the Tribunal. Accordingly, the Minister supported the outcome in Lee because the nomination there had lapsed at the time the application for review was made to the Tribunal. Similarly, the Minister defended the outcome in Kandel because, at the time the application for review of the visa decision was made with the Tribunal in that case, a fresh nomination had just been made and was undetermined at that point in time. Thus the Minister accepted that the Tribunal had jurisdiction in those circumstances.
92 The proper construction of s 338(2)(d)(ii): As to the appellant's reliance on s 338(2)(d)(ii), the Minister defended the primary judge's conclusion that this provision did not apply to the appellant's circumstances. He submitted that there was a clear distinction in the Migration Act between the decision to approve a person as a sponsor (a matter dealt with in s 140E, as well as in ss 140F, 140G and 140GA and also in the definition of "approved sponsor in s 5(1)), and a decision to approve a nomination by an approved sponsor (which is dealt with in s 140GB). The Minister submitted that the reference in s 338(2)(d)(ii) to a "decision not to approve the sponsor" could only be a reference to a decision to refuse approval of a person as a sponsor under s 140E.
93 The Minister further submitted that the appellant's reliance on s 18A of the AIA was misplaced because the appellant confused the separate concepts of approval of a sponsor with approval of a nomination by an approved sponsor. The appellant's construction should be rejected, submitted the Minister, because it essentially required additional words to be read into s 338(2)(d)(ii) and the limited circumstances for that to occur were not satisfied here (citing Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; 253 CLR 531; at [35]-[40]).
94 Accordingly, the Minister submitted that both grounds of appeal should be dismissed.