Consideration
40 The issue to be determined is whether, in circumstances where an approved sponsor has nominated an occupation in relation to a visa applicant and the nomination has been refused, the visa applicant is "sponsored by an approved sponsor" for the purposes of s 338(2)(d)(i) of the Migration Act.
41 The issue described above was left open by the Full Court in Ahmad at [113]. The Full Court expressed the obiter view in that paragraph that, in such circumstances, the visa applicant would not be "sponsored by an approved sponsor" for the purposes of s 338(2)(d)(i).
42 Although the task of statutory construction begins and ends with the text, it is undertaken with regard to context and purpose: see, eg, Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 at [57], [61]-[62] per French CJ, Hayne, Kiefel and Nettle JJ, at [77] per Gageler J; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71] per McHugh, Gummow, Kirby and Hayne JJ.
43 It is important to have regard to the legislative history of the relevant provisions and the scheme of Div 3A of Pt 2 of the Migration Act. As detailed in Ahmad, the Division was introduced in 2003 and there were important amendments made in 2008: see Ahmad at [27]-[56]. As originally introduced, the relevant provisions combined the process of approving a sponsor and approving a nomination. In that context, s 338(2)(d) (the terms of which were the same as set out in [25] above) was designed to prevent abuse. The concern was that visa applicants may try to extend their stay in Australia in circumstances where they had no prospect of satisfying the relevant criteria because they did not have an approved sponsor: see Ahmad at [33].
44 Subsequently, in 2008, the provisions were amended such that there were henceforth separate processes for approving a sponsor and approving a nomination. Following the 2008 amendments, the process for approval of a sponsor was dealt with in s 140E and the process for approval of a nomination was dealt with in s 140GB.
45 Section 140GB is structured more broadly than the earlier provision in that it enables nomination of either: (a) an applicant or proposed applicant for a visa of a prescribed kind (in relation to a proposed occupation, program or activity); or (b) a proposed occupation, program or activity. In the latter case, it seems clear that the nomination does not need to specify a particular individual: see Ahmad at [47].
46 As detailed in Ahmad, changes to the Regulations were made in 2009: see Ahmad at [49]-[56]. These amendments came into force at the same time as the 2008 amendments to the Act (on 14 September 2009). Relevantly, the changes to the Regulations included the introduction of reg 4.02(1AA) which provides that "sponsored includes being identified in a nomination under section 140GB of the Act". This definition is applicable for the purposes of the relevant provisions of the Act by virtue of s 337.
47 In the context of the 2008 amendments, it may be inferred that the reason for introducing the new extended definition of "sponsored" in reg 4.02(1AA) related to the introduction of the new s 140GB. As explained above, that section provided a separate process for approval of a nomination and provided for nomination of: a visa applicant (in relation to a proposed occupation, program or activity); or a proposed occupation, program or activity. It may be that the new definition was designed to ensure that, where a criterion for a visa is expressed in terms of the visa applicant having been "identified in a nomination", this is treated as a criterion that falls within the opening lines of s 338(2)(d), which refer to it being a criterion for the grant of a visa that the visa applicant is "sponsored by an approved sponsor". For example, the criteria for a Subclass 457 visa include that "a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act" (see cl 457.223(4) in Sch 2 to the Migration Regulations). This requires not only approval of an occupation, but approval of the occupation in relation to the applicant. This would seem to be the type of criterion that is covered by the opening lines of s 338(2)(d) read with the extended definition of "sponsored" in reg 4.02(1AA).
48 In Ahmad, the Full Court was concerned with the question whether, in circumstances where there has been an adverse decision in respect of a nomination, and review has been sought of the adverse nomination decision, the case falls within sub-paragraph (ii) of s 338(2)(d). That sub-paragraph has the effect that the Tribunal will have jurisdiction in the relevant class of cases if "an application for review of a decision not to approve the sponsor has been made, but … review of the sponsorship decision is pending". The Full Court held that sub-paragraph (ii) covers cases where there has been an adverse decision with respect to a nomination under s 140GB but review of the adverse nomination decision is pending. Fundamental to that conclusion was the legislative history of the relevant provisions which indicated that, as originally conceived, approval of sponsorship encapsulated approval of a nomination. Although the 2008 amendments had provided for two separate processes, the reference to "an application for review of a decision not to approve the sponsor" in s 338(2)(d)(ii) was found still to encapsulate an application for review of an adverse nomination decision.
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.