Al Hamid v Minister for Immigration and Border Protection

1. The amended application for leave to appeal be refused with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an application for leave to appeal from orders made by a judge of the Federal Circuit Court of Australia on 4 November 2016. His Honour refused an application to reinstate an application for judicial review of a decision made by the Administrative Appeals Tribunal that it did not have jurisdiction to entertain a merits review application. The Tribunal's reasons succinctly explain the facts and the basis for that conclusion as follows: 1. An application was made to the Tribunal on 23 March 2016 for review of a decision of a delegate dated 8 March 2016 to refuse to grant the visa applicants Temporary Business Entry (Class UC)) visas under s.65 of the Migration Act 1958 (the Act). 2. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application. 3. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02( 4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable. 4. A decision to refuse a Class UC visa is reviewable under s.338(2) if the applicant made the visa application while in the migration zone and either the applicant is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made, or 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. 5. 'Sponsored' includes being identified in a nomination under s.140GB of the Act. In the case of a Subclass 457 visa applicant who seeks the visa on the basis of being nominated by a standard business sponsor, cl.457.223(4)(a) requires that a nomination of an occupation in relation to the applicant has been approved under s.140GB of the Act and the nomination was made by a person who was a 'standard business sponsor' at the time the nomination was approved and the nomination has not ceased. A 'standard business sponsor' is a person who is an 'approved sponsor'; and is approved as a sponsor in relation to the standard business sponsor class by the Minister under s.140E(1) of the Act: s.5 and s.140E of the Act and r.1 .03 and r.2.58 of the Regulations. 6. The delegate's decision record, provided to the Tribunal by the applicants, records that on 9 December 201 5, after the visa application was lodged on 19 August 2015, the first named applicant's sponsor Zampelle's Pty Ltd withdrew their sponsorship. The Department wrote to the applicants providing an opportunity to comment on this information. The applicants did not respond. The Department refused the visa application because the first named applicant (the applicant) did not meet cl.457.223(4)(a) as she was not the subject of an approved nomination. 7. There is no evidence before the Tribunal that at the time the review application was lodged the applicant was identified in a nomination under s.140GB of the Act that was approved or pending. The Tribunal formed the preliminary view that the decision is not reviewable because at the time the application for review was lodged, the applicant was not identified in a nomination under s.140GB of the Act that was approved or pending. Nor was there a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E, or a decision not to approve the nomination under s.140GB. 8. The Tribunal wrote to the applicants on 7 April 2016 inviting comments on whether a valid application for review had been made. The applicant responded submitting that the sponsor Zampelle's was not cooperating with the appointed migration agent and in her view this was the reason the visa application was refused. 9. There is no documentary evidence before the Tribunal that, at the time the application for review was lodged, the applicant was identified in a nomination under s.140GB of the Act that was approved or pending, or that there was a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E, or a decision not to approve the nomination under s.140GB. 10. The Tribunal finds therefore that, at the time the application for review was lodged by the applicant on 23 March 2016, the applicant was not identified in a nomination that was approved or pending, and there was not a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E, or a decision not to approve the nomination under s.140GB of the Act. 11. The Tribunal therefore finds that the requirements of s.338(2)(d) are not met. 12. Accordingly, the Tribunal finds that the decision to refuse the applicants Subclass 457 visas is not a reviewable decision in accordance with s.338(2)(d) or under any of the other subparagraphs of s.338 and r.4.02(4). 13. As the delegate's decision is not reviewable in these circumstances it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter. DECISION 14. The Tribunal does not have jurisdiction in this matter. 2 It is common ground that an adverse outcome for this application for leave to appeal is predetermined by the application of the binding authority of the Full Court in Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81 at [40]-[59]. Dyankov upheld the prior obiter comment in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182; 237 FCR 365 at [113]. Ahmad at [113] held: Although it is unnecessary to decide, we indicate that we would not be disposed to accept the broader submission put by Mr Jones 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. 3 The key aspect of the Full Court's reasoning in Dyankov was as follows: 49 The current issue is to be approached in light of the legislative history and the scheme of the Div 3A of Pt 2 of the Migration Act, and consistently with the construction of s 338(2)(d)(ii) adopted by the Full Court in Ahmad (which was not challenged). Although the appellants challenged the correctness of the obiter statements in [113] of Ahmad (which related to s 338(2)(d)(i)), they did not challenge the principal holding in Ahmad (which related to s 338(2)(d)(ii)). 50 The starting point is the opening lines of s 338(2)(d). These refer to it being a criterion for the grant of a visa that the non-citizen is "sponsored by an approved sponsor". Reading into these lines the definition of "sponsored" in reg 4.02(1AA), the opening lines of s 338(2)(d) include a case where it is a criterion for the grant of a visa that the non-citizen is identified in a nomination under s 140GB made by an approved sponsor. In such situations, the opening lines of s 338(2)(d) are relevantly satisfied and thus the paragraph is engaged. 51 The wording of sub-paragraph (i) of s 338(2)(d) mirrors in relevant respects that of the opening lines of paragraph (d). Both use the words "is sponsored by an approved sponsor". Once it is accepted that the opening lines of s 338(2)(d) include (by virtue of the definition in reg 4.02(1AA)) a case where it is a criterion for the grant of a visa that the non-citizen is identified in a nomination under s 140GB made by an approved sponsor, then it follows that it is (at least generally) sufficient for the purposes of sub-paragraph (i) of s 338(2)(d) that the non-citizen is identified in a nomination under s 140GB made by an approved sponsor (whether or not the nomination has been approved). Thus, in a case where a nomination has not yet been dealt with, the non-citizen may be able to satisfy the requirements of s 338(2)(d)(i). 52 The question that arises in the present case is whether the requirements of sub-paragraph (i) of s 338(2)(d) are satisfied in circumstances where there has been an adverse decision in respect of a nomination. Adopting a literal approach, it would seem open to conclude that, in such a case, the requirements of the sub-paragraph can be satisfied, on the basis that the non-citizen is (notwithstanding the adverse decision) still "identified in a nomination under section 140GB of the Act". There are, however, problems with this construction. 53 First, it seems to be contrary to the purpose of s 338(2)(d) (as referred to above). If a nomination has been decided adversely then, subject to successful review of the adverse nomination decision, in the ordinary course of things the visa applicant will be unable to satisfy the visa criteria. In these circumstances, the case would seem to fall into the category of abuse that the provision was designed to address: see Ahmad at [33]. If the adverse nomination decision is subject to a pending review, the case is covered by sub-paragraph (ii) of s 338(2)(d), as interpreted by the Full Court in Ahmad. But where (as in the present case) review of the adverse nomination decision has not been sought, in the ordinary course of things the visa applicant will be unable to satisfy the criteria. 54 It is true that, as submitted by the appellants, there is the possibility that a new nomination of an occupation in relation to the visa applicant may be made. Accepting that to be a possibility, the legislation nevertheless proceeds on the basis that the approved sponsor can seek merits review of an adverse nomination decision and s 338(2)(d)(ii) (as interpreted in Ahmad) has the effect that the Tribunal has jurisdiction in circumstances where an application for review of an adverse nomination decision is pending. In circumstances where an approved sponsor decides not to seek merits review of an adverse nomination decision, the statutory purpose referred to above is served by the Tribunal not having jurisdiction. The practical reality is that, in the absence of an approved nomination, the visa applicant is unable to satisfy the criteria for the relevant visa. Further, there would seem to be a tension between, on the one hand, the appellants relying on the possibility of a new nomination being made (in order to seek to show practical utility in the Tribunal having jurisdiction to review the visa refusal) and, on the other, the appellants' reliance on the (refused) nomination to seek to satisfy the requirement of being "sponsored by an approved sponsor". 55 Secondly, and relatedly, the appellants' construction seems to be incongruent with the statutory scheme, including the interpretation of s 338(2)(d)(ii) adopted by the Full Court in Ahmad. In circumstances where a nomination has been refused, and there is a pending review of that decision, the Tribunal has jurisdiction under s 338(2)(d)(ii). It would be incongruent with that statutory scheme to read sub-paragraph (i) of s 338(2)(d) as covering cases where there has been an adverse nomination decision (whether or not review of that decision has been sought). This would not sit easily with a provision, in sub-paragraph (ii), which provides for a case where review of an adverse nomination decision has been sought and is pending. 56 Although the comments at [113] of Ahmad were obiter, the logical extension of the principal holding in Ahmad (regarding s 338(2)(d)(ii)) is that s 338(2)(d)(i) does not cover a case where a nomination has been refused. As noted above, that principal holding was not challenged in this appeal. 57 The appellants submit that the relevant provisions are remedial legislation and accordingly the provisions should be construed beneficially. However, we consider the contextual considerations relating to the purpose of the provisions and the structure of the scheme to provide a more persuasive indication of the legislative intent. 58 It was emphasised in oral submissions on behalf of the appellants that they should have the opportunity to test the merits of the adverse visa decision. But, absent an approved nomination, the appellants would have been unable to satisfy the criteria for the visa. Unlike Ahmad, where the approved sponsor had sought review of the adverse nomination decision and that review was pending (and hence, it was held, the Tribunal had jurisdiction under s 338(2)(d)(ii)), in the present case there was no pending application to review the adverse nomination decision. 59 For these reasons, we consider the preferable construction to be that the words "sponsored by an approved sponsor" in s 338(2)(d)(i) do not cover a situation where a nomination under s 140GB has been refused. Therefore, in the circumstances of the present case, the Tribunal did not have jurisdiction. 4 Counsel for the Minister submitted that, while Dyankov concerned a sponsorship application that had been refused, logically the same conclusion applied where the sponsorship application had been withdrawn. In either situation, the criteria for the grant of the visa could not be met because the first applicant could not be said to be "sponsored" as required at the time the application for review was made to the Tribunal. That reasoning should be accepted. 5 Following Dyankov, the appeal that the applicants wish to bring must fail. Accordingly, it is futile to grant leave to appeal. Leave to appeal must therefore be refused with costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.