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[2018] FCA 1754
Federal Court of Australia
2018-11-14
Griffiths J
Original judgment source is linked above.
The application for leave to appeal and grounds of appeal 35 On 10 May 2018, the applicants filed an application for leave to appeal from the FCCA's judgment. 36 The applicants proposed the following two grounds of appeal (without alteration): 1. The learned Federal Circuit Court Judge McNab erred by failing to consider all the relevant circumstances of the appellant in making the decision and failed to consider that the Administrative Appeal Tribunal fell into jurisdictional error by not reviewing the decision by the delegate under Cl.401.214 of the migration regulations 1994 and applying C.401.212 of the migration regulation 1994. 2. The learned Federal Circuit Court Judge McNab erred in law by failing to consider that the Administrative Appeal Tribunal fell into jurisdictional error when it identified the wrong issue and relied on the essential requirement of the visa Cl401 .212 of the migration regulations 1994.
The applicants' submissions summarised 37 On 19 June 2018, a Registrar of this Court directed the applicants to file and serve a written outline of submissions no later than 10 business days before the hearing. This did not occur. In response to an email from Chambers regarding the delay, the applicants requested an extension to file their outline of written submissions by 5 November 2018, which was granted and complied with. 38 The crux of the applicants' submission is that the AAT did not review the delegate's decision to refuse the applicants visas based on the first applicant's non-satisfaction of cl 401.214 of Sch 2 to the Regulations. Thus, the primary judge erred in law by failing to consider whether the AAT committed jurisdictional error when it identified the wrong issue, by basing its decision on the non-satisfaction of cl 401.212, so the applicants submitted. 39 In their oral submissions, the applicants' solicitor said that the issue of particular concern was the delegate's finding that he was not satisfied that the first applicant genuinely intended a temporary stay in Australia. The essential complaint is that the AAT never addressed that finding and instead affirmed the delegate's decision by reference to its finding that the applicants did not satisfy cl 401.212.
The Minister's submissions summarised 40 The Minister's outline of written submissions was filed in advance of the applicants' outline, for reasons which are explained at [37] above. The Minister contended that the FCCA's decision was not attended by sufficient doubt to warrant leave to appeal. 41 With reference to the primary judge's understanding and application of the relevant legislative criteria for the grant of a Subclass 401 visa, the Minister drew attention to cl 401.212, which is one of the primary criteria which the applicants had to satisfy at the time a decision was made on their application. It included a requirement that the nomination be made by a person who was, at the time the nomination was approved, a long-stay activity sponsor and that the nomination approval has not ceased under reg 2.75A. 42 Regulation 2.75A set out the period of approval of nomination for a Subclass 401 visa. The approval ceased 12 months after the day on which the nomination is approved (see reg 2.75A(2)(b)). 43 The Minister contended that, on the first applicant's own evidence before the AAT, he was not the subject of an approved nomination, with the consequence that he did not satisfy cl 401.212(1) of Sch 2 to the Regulations. 44 The Minister submitted that the AAT had had regard to all of the evidence provided by the first applicant, including the documentation he handed up at the commencement of the hearing, but none of that evidence supported the finding that the first applicant had a current approved nomination for a Subclass 401 visa. 45 As to the applicants' claim that the AAT had identified the wrong issue, the Minister pointed out that the AAT's duty under s 348 was to review the delegate's decision and not the delegate's reasons for decision. The Minister contended that the AAT made no error by identifying the issue which arose for determination on the review as whether the applicants satisfy cl 401.212. This included whether there was a valid nomination. 46 The Minister pointed out that an additional primary criteria for a Subclass 401 visa was whether the first applicant genuinely intended to stay temporary in Australia to carry out the occupation or activity the subject of the visa application (see cl 401.214). The Minister submitted that it was not necessary for the AAT to consider whether the first applicant genuinely intended to stay temporarily in Australia, as the dispositive finding for dismissing the applicants' AAT review application was the AAT's determination that the first applicant did not satisfy cl 401.212. 47 Finally, the Minister submitted that the FCCA's decision was plainly correct and the applicants could suffer no substantial injustice if leave to appeal is not granted.
Consideration and determination 48 As the dismissal of an application at a show cause hearing under r 44.12 of the FCC Rules is interlocutory in nature, the applicants require this Court's leave to appeal from the judgment of the FCCA below: see FCC Rules rr 44.12(1)(a) and 44.12(2); Federal Court of Australia Act 1976 (Cth) (Federal Court Act), s 24(1A); SZTVU v Minister for Home Affairs [2018] FCA 1394 at [25] per Perry J. 49 Considerations relevant to whether the Court should grant leave under s 24(1A) of the Federal Court Act include whether the FCCA decision: (a) is attended by sufficient doubt to warrant reconsideration; and (b) if the decision is assumed to be wrong, substantial injustice would be suffered by the applicants if leave to appeal were refused (see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399; Minister for Home Affairs v SZRWS [2018] FCAFC 51 at [40]; Tyne (Trustee) v UBS AG [2016] FCA 241; 338 ALR 624 at [32]-[33]). 50 I consider that the FCCA's decision is not attended by sufficient doubt to warrant reconsideration of the decision, substantially for the reasons set out in the Minister's submissions. In particular: (a) having regard to the criteria for the grant of a Subclass 401 visa, including that contained in cl 401.212, the AAT was correct to find that, as at the date of its decision, the first applicant was not the subject of an approved nomination; (b) the AAT was correct to identify the central issue on the review as being whether or not the first applicant satisfied cl 401.212. The AAT's task was to decide for itself what was the correct or preferable decision in respect of the visa applications; (c) it was not necessary for the AAT to consider whether the first applicant genuinely intended to stay temporarily in Australia, as raised by cl 401.214, as the AAT properly dismissed the review application on the basis that the first applicant did not satisfy cl 401.212, which was fatal to his application for a Subclass 401 visa; and (d) in circumstances where the FCCA's decision was correct, the question of substantial injustice does not arise. 51 As to the first applicant's central concern regarding the delegate's finding which is referred to in [39] above, that finding has now been superceded by the AAT's reasons for decision. The AAT has affirmed the primary decision but the relevant reasons are those that have been given by the AAT and not the delegate.
Conclusion 52 For these reasons, the application for leave to appeal will be refused. The applicants must pay the respondent's costs, as agreed or assessed. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.
Mabogodage
Minister for Home Affairs
GRIFFITHS J: 1 This is an application seeking leave to appeal from a judgment of the Federal Circuit Court of Australia (FCCA) dismissing an application on a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). The judgment is reported as Mabogodage v Minister for Immigration and Border Protection [2018] FCCA 1031. The FCCA dismissed the applicants' application for judicial review of a decision dated 8 March 2017 of the Administrative Appeals Tribunal (AAT). The AAT affirmed a decision dated 18 June 2015 by a delegate of the Minister for Immigration and Border Protection.
The proceedings in the FCCA 23 On 6 April 2017, the applicants filed an application in the FCCA seeking judicial review of the AAT's decision dated 8 March 2017. 24 Pursuant to orders made by consent on 11 October 2017, the matter was listed for a show cause hearing under r 44.11(b) of the FCC Rules. The show cause hearing took place on 11 April 2018 and the applicants were represented at that hearing. 25 The grounds of application were as follows (without alteration): 1. That the Administrative Appeals Tribunal fell into jurisdictional error when it took into account irrelevant evidence in determining the application for review. Particulars (a) The Administrative Appeals Tribunal fell into jurisdictional error when it took into account the essential requirement of the visa cl.401.212 which required him to be identified in a nomination of an occupation or activity approved under 140GB of the act when the delegate of the Minister for Immigration and Border Protection refused to grant the visa applicants Temporary Work (Long Stay Activity) (Class GB) on the basis that the applicant did not meet cl.401.214 of Schedule 2 of the regulation because he was not satisfied that the applicant genuinely intents a temporary stay in Australia. (b) The Administrative Appeals Tribunal fell into jurisdictional error when it relied on the essential requirement of the visa, cl.401.212 nomination of an occupation or activity approved under s. 140GHB of the act when the real issue raised by the delegate was whether the applicant was genuinely intending to stay in Australia. (c) The Administrative Appeals Tribunal fell into jurisdictional error when it did not invite the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review, namely the Administrative Appeals Tribunal failed to invite the applicant to give evidence and present arguments on the issue and/or finding by the delegate for the Minister for Immigration and Border Protection that the applicant was not a applicant genuinely intents a temporary stay in Australia. 2. That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to take into account relevant evidence in determining the application for review. Particulars (a) There was no evidence before the Administrative Appeals Tribunal that the applicant was intends permanent stay in Australia. (b) There was no evidence before the Administrative Appeals Tribunal that the applicant or any other person named in the application intends a permanently stay in Australia. 3. That the Administrative Appeals Tribunal fell into jurisdictional error when it came to the conclusion that the first applicant does not satisfy the primary criteria for grant of Subclass 401 visa. 4. That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to provide a logical and legal reasoning process as to how it arrived at the conclusion that the first named applicant does not satisfy the primary criteria for grant of Subclass 401 visa. 5. That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to ask itself the correct questions in relation to the review; 6. That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to correctly apply and/or interpret the Migration Act 1958 and/or the Migration Regulations 1994; 7. That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to adequately and/or properly assess the evidence before it; 26 In oral submissions below, the applicants' solicitor submitted that the AAT's principal error was failing to properly consider whether the first applicant was a genuine short stay visa applicant. He submitted that the AAT erred by focusing on whether the first applicant had a sponsor at the time of the AAT hearing. 27 On 27 April 2018, the primary judge dismissed the review application under r 44.12(1)(a) of the FCC Rules and delivered his reasons for judgment. 28 With respect to grounds 1(a)-(b), the primary judge found that there was no error in the approach taken by the AAT. The applicants submitted that because the delegate had based his decision on the non-satisfaction of cl 401.214 by the first applicant, the AAT could not base its decision on the non-satisfaction of cl.401.212, which required the first applicant to be the subject of a current nomination. The primary judge determined that the AAT was entitled to examine whether the first applicant held a valid nomination in accordance with cl 401.212, as consideration of whether the applicants genuinely intended to stay temporarily in Australia under cl 401.214 arises for consideration only if the criteria in relation to nomination has been satisfied. His Honour held that the AAT was required to review the delegate's decision, and not the delegate's reasons, citing Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39; 2 ALD 60 at 68 per Bowen CJ and Deane J and Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 per Kiefel J. 29 As to ground 1(c), the primary judge found that this ground seemed to be focused on a complaint that the hearing did not concentrate on whether the applicants intended to stay temporarily in Australia. For the reasons given above, his Honour found there was no error on the part of the AAT. 30 As to ground 2, which asserted the AAT failed to take into account relevant evidence, the primary judge reasoned that, as the AAT had found that the first applicant did not satisfy cl 401.212, it did not need to consider whether he satisfied cl 401.214. 31 As to ground 3, the primary judge found that the AAT was correct in determining that the first applicant did not meet the criteria for a Subclass 401 visa as he did not have a valid nomination under cl 401.212. 32 As to ground 4, the primary judge found that there was nothing illogical or irrational as to how the AAT concluded that the first applicant did not satisfy the criteria for a Subclass 401 visa as a result of not having a valid nomination. 33 As to ground 5, the primary judge found that the AAT asked itself the correct question by examining whether the first applicant had a valid nomination. 34 As to grounds 6 and 7, the primary judge found that the AAT had correctly applied the law and assessed the relevant evidence, and so dismissed those grounds.
(1991) 33 FCR 397
[2008] HCA 31