Before this Court
19 By a notice of appeal filed within time on 9 September 2016, the appellant advances the following single ground of appeal:
While I acknowledge the Order of Judge Barnes I still believe that I have an arguable case and I have not received the judgment yet to put my arguments and I will provide details of grounds when the judgment will be ready.
20 When the matter came on for hearing the appellant told the Court that he still did not have a copy of the decision of the Federal Circuit Court. He was unable to give any explanation as to why he had not obtained a copy, including at the time that he successfully applied for an exemption from paying court fees by an application dated 6 January 2017. By reason of what follows, it is apparent that the appellant having a copy of the reasons of the primary judge could not have assisted him in any event because there was nothing he could do in the circumstances of this case.
21 The appellant handed up short written submissions in response to the Minister's written submissions, to which I will turn shortly.
22 The Minister's submissions went through the history of the matter in a similar manner to the above. The Minister's submissions correctly pointed out that the task of the primary judge in dealing with the judicial review proceedings before her Honour was to determine whether the Tribunal's decision was infected by jurisdictional error. The task of this Court on appeal was to determine whether her Honour's decision revealed any appellable error. It was submitted that the sole ground of appeal pleaded by the appellant failed to identify or make out any appellable error on the part of the primary judge and that both the decision of the Tribunal and the decision of the primary judge were plainly correct. That submission is plainly correct.
23 It was submitted that the Tribunal's jurisdiction was derived, relevantly, from s 348 of the Migration Act, which states that it must review a decision if an application is properly made under s 347 for review of a Part 5-reviewable decision. Such a decision is relevantly defined in s 338(2)(d) of the Migration Act to include a decision:
(d) where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii) 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.
24 The Court's attention was drawn to Ahmad in which the Full Court of the Federal Court considered the meaning of s 338(2)(d) of the Migration Act and found:
(1) at [90], that s 338(2)(d)(i) of the Migration Act could be satisfied if a visa applicant was identified in a nomination under s140 GB(1) which was yet to be determined at the time of the making of an application for review to the Tribunal; and
(2) at [99]-[101], that s 338(2)(d)(ii) of the Migration Act could be satisfied where a decision not to approve the sponsor had been made and was pending review at the time of the application to review the decision to refuse the grant to grant the visa was made - their Honours found that the expression "decision not to approve the sponsor" in that provision included both approval of the sponsor and approval of the nomination, so that where a review of a nomination refusal was pending, the Tribunal would also have jurisdiction.
25 However, neither of the circumstances identified by the Full Court in Ahmed existed in this case. At the time the application for review was lodged, Zak Form Work was not approved as a standard business sponsor. While Green Formwork was an approved sponsor, the appellant was not the subject of a nomination, either pending or approved, made by Green Formwork. This was confirmed by the ICSE records annexed to the affidavit that was before the primary judge. Those records did not indicate any other nomination in respect of the appellant at any relevant time.
26 There was no suggestion by the appellant that there was a pending review application filed by Zak Form Work in respect of either the decision to refuse the nomination application or to refuse this application for approval as a standard business sponsor. Thus at the time that the appellant lodged the application for review in the Tribunal, he was plainly not identified in a nomination, either determined or pending, and neither was there a pending review of the decision to refuse either a nomination in respect of the appellant or decision to refuse his employer approval as a standard business sponsor.
27 In the circumstances, the Tribunal had no discretion to conclude anything other than that it lacked jurisdiction, and the primary judge was therefore plainly correct to dismiss the appellant's application for review.
28 I consider that the submissions made on behalf of the Minister are unassailably correct.
29 For completeness I should refer briefly to the submissions furnished at the hearing by the appellant.
30 In substance, the appellant renews his complaints about the notification processes that took place.
31 In relation to Zak Form Work however, it can only be concluded that the company was indeed notified of the adverse decision on its sponsorship approval application because it sought, unsuccessfully, a review of that decision by a differently constituted Tribunal. The appellant asserts - without any evidence, and contrary to the records and evidence before the Tribunal and the primary judge, and the additional evidence before the primary judge - that the Tribunal did have jurisdiction and that he was denied procedural fairness because he was not asked to comment on the information. However none of these matters raised by the appellant address the fundamental and insurmountable problem that his appeal faces.
32 It is plain that, on the material that was before the Tribunal and subsequently confirmed before the primary judge, the necessary nomination or sponsorship in relation to the appellant was absent and accordingly the Tribunal did not have jurisdiction. The Tribunal could not properly reach any other conclusion. It follows that the primary judge was correct in those circumstances to uphold the Tribunal's decision and to dismiss the application for review. For the same reasons, this appeal must fail.
33 The appeal must therefore be dismissed with costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.