Sharma v Minister for Immigration and Border Protection

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGES: KATZMANN, ROBERTSON AND GRIFFITHS JJ DATE: 16 DECEMBER 2015 PLACE: SYDNEY

Introduction 1 This is an appeal from the judgment and orders of a judge of the Federal Circuit Court of Australia given and made on 19 June 2015. The judge dismissed an application for judicial review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal), made on 1 April 2015, that it had no jurisdiction in the matter. The application made to the Tribunal, on 3 December 2013, was for review of the decision made by a delegate of the Minister to refuse the first appellant, Ms Sharma, a Temporary Business Entry (Class UC) subclass 457 visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act). 2 These reasons are to be read with Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, delivered today. 3 The second named appellant is the spouse of Ms Sharma. The third named appellant is their son. They are each secondary visa applicants and their position need not be separately considered.

Chronology 4 The sequence of events was as follows. 5 Ms Sharma, applied for the visa on 25 June 2013. She gave as the details of the sponsoring employer Ms Loveleen Gupta t/a KLM Imports. 6 By letter dated 19 July 2013, Ms Sharma's migration agent applied to the Department on behalf of Ms Gupta to nominate Ms Sharma as a Project Administrator. 7 By letter dated 9 September 2013, the Department wrote to Ms Sharma saying it required further information. Further information was provided by email dated 8 October 2013. 8 The delegate refused to grant the visa on 15 November 2013. The basis of the refusal was that Ms Sharma did not satisfy reg 457.223(4)(d) of the Migration Regulations 1994 (Cth). The delegate set out the terms of that regulation as follows: 457.223 (4) The applicant meets the requirements of this subclause if: (d) the Minister is satisfied that: (i) the applicant's intention to perform the occupation is genuine; and (ii) the position associated with a nominated occupation is genuine. 9 The delegate said that on assessment of the information supplied by Ms Sharma, she was not satisfied that the tasks of the position were consistent with the tasks of the nominated occupation as listed in the ANZSCO, being the nominated occupation of Program or Project Administrator. The delegate said, that while some of the listed duties related to project management or administration, the majority of duties related to retail management, import/export, office administration and data entry. Consequently, as the tasks of the position were inconsistent with the nominated occupation, the delegate did not consider the position associated with the nominated occupation to be genuine and so found that Ms Sharma did not meet subparagraph 457.223(4)(d)(ii). Therefore, the delegate was not satisfied that the requirements of paragraph 457.223(4)(d) had been met. As Ms Sharma did not meet that paragraph, the delegate was not satisfied that Ms Sharma met the prescribed criteria for grant of the visa. Therefore the application for the grant of the visa was refused. 10 On 3 December 2013 at 2.57 pm, Ms Sharma's proposed employer, Ms Gupta, applied to the Tribunal for review of the decision to refuse her business nomination application. The relevant form gave Ms Sharma's details as the visa applicant. 11 On 3 December 2013 at 3.07 pm, following application by the proposed employer, Ms Sharma applied to the Tribunal for review of the decision to refuse the visa. 12 By letter dated 22 October 2014, reissued on 11 November 2014, the Tribunal invited Ms Sharma to appear before the Tribunal to give evidence and present arguments relating to the issues arising in her case. The hearing took place on 27 November 2014. 13 On 10 February 2015, the Tribunal set aside the decision not to approve the business nomination application and substituted a decision that the nomination was approved. The Tribunal found that Ms Gupta was approved as a standard business sponsor for a three-year period commencing on 20 June 2013 and that that status remained in effect. On the basis of the information provided in the nomination form, the Tribunal was satisfied that Ms Gupta had identified the person to undertake the nominated occupation and that she, Ms Sharma, was a subclass 457 visa applicant. The Tribunal found that Ms Sharma was not the holder of a subclass 457 visa but held a bridging visa at the time the nomination application was made. 14 On 17 March 2015, an officer of the Tribunal wrote to Ms Sharma saying that following the recent decision of the Federal Circuit Court in Minister for Immigration and Border Protection v Lee [2014] FCCA 2881, the Tribunal had formed the view that her application for review may not be valid. This was because, the letter indicated, at the time the review application was lodged there was no nomination of an occupation that was approved and in force as required by s 338(2)(d)(i), nor was there a pending application for review of a decision not to approve Ms Sharma's sponsor as a standard business sponsor as required by s 338(2)(d)(ii). That letter invited Ms Sharma to make, in writing, any comments she wished on whether a valid application had been made. 15 On 1 April 2015, the Tribunal decided it did not have jurisdiction in the matter and refused to review the visa decision. 16 On 19 June 2015, the primary judge dismissed the application for judicial review of the decision of the Tribunal, for the reasons given by him in Ahmad v Minister for Immigration and Border Protection [2015] FCCA 1486.

The legislation 17 At the relevant time, s 338(2) provided as follows: 338 Decisions reviewable by Migration Review Tribunal (1) … (2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is an MRT-reviewable decision if: (a) the visa could be granted while the non-citizen is in the migration zone; and (b) the non-citizen made the application for the visa while in the migration zone; and (c) the decision was not made when the non-citizen: (i) was in immigration clearance; or (ii) had been refused immigration clearance and had not subsequently been immigration cleared; and (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.

The grounds of appeal 18 As in Ahmad, the grounds of appeal are as follows: 1. The Appellant seeks leave to raise a new ground not argued before the primary judge with the result that the Second Respondent made a jurisdictional error by failing to exercise jurisdiction. Particulars a. The term "sponsored" in subpara s 338(2)(d)(i) of the Migration Act 1958 (Cth) (Act) when read with s 337 of the Act and subreg 4.02(1AA) of the Migration Regulations 1994 (Cth) includes "being identified in a nomination under s 140GB of the Act" (definition). b. In Kandel v Minister For Immigration & Anor [2015] FCCA 2013 (Kandel) the primary judge construed the definition as requiring that an applicant had been identified in a nomination under s 140GB of the Act at an earlier point in time, departing in light of the concession by the Minister from the decision of Minister for Immigration v Lee [2014] FCCA 2881. c. The construction of the definition by the primary judge in Kandel was correct. Further, the primary judge in Kandel did not adopt the Minister's suggestion that the definition only be satisfied where an application for nomination was pending at the time of the application to the Tribunal for review of the decision to refuse the visa (suggested restriction). d. His Honour was correct not to adopt the suggested restriction, with the result that the Tribunal had jurisdiction with respect to the Appellant in the present case. In any event, the suggested restriction would still embrace a pending application to the Tribunal for review of a nomination decision, so that the Tribunal nonetheless had jurisdiction with respect to the Appellant in the present case. 2. The primary judge erred by holding that the Second Respondent did not make a jurisdictional error by failing to exercise jurisdiction. Particulars a. The Primary judge misconstrued s 338(2)(d)(ii) of the Act. b. The primary judge held that an "application for review of the decision not to approve the sponsor" within the meaning of s 338(2)(d)(ii) of the Act did not include an application for review of a decision not to approve an application by the sponsor for approval of a nomination of an occupation in relation to the Applicant under s 140GB of the Act when read with reg. 2.72 of the Regulations. c. The primary judge should instead have held that an "application for review of the decision not to approve the sponsor" within the meaning of s 338(2)(d)(ii) of the Act:

Consideration 19 For the reasons we have given today in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, in our opinion, the primary judge did misconstrue s 338(2)(d). On the facts of this case, at the time of the making of the application for review of the decision to refuse to grant the visa to Ms Sharma, an application for review of the decision to refuse the business nomination application in relation to an occupation had been made and was pending. 20 The appeal should be allowed, with costs, the Tribunal's decision set aside and the matter remitted to it for hearing and determination according to law. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Katzmann, Robertson and Griffiths.