FEDERAL COURT OF AUSTRALIA

Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made in the Federal Circuit Court of Australia on 29 May 2015 be set aside and in their place it be ordered:

(i)    the second respondent’s decision dated 11 March 2015 be set aside;

(ii)    the application for review dated 22 May 2014 be remitted to the second respondent for hearing and determination according to law;

(iii)    the first respondent pay the applicant’s costs.

3.    The first respondent pay the appellant’s costs of and incidental to the appeal.

THE COURT DECLARES THAT:

1.    The second respondent has jurisdiction in relation to the appellant’s application for review dated 22 May 2014.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

1    The broad question raised by this appeal is whether the primary judge erred in upholding the decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) that it lacked jurisdiction to hear and decide an application for review of a decision by the Minister’s delegate, in which he refused to grant the appellant a Temporary Business Entry (Class UC) subclass 457 visa. Underlying that seemingly simple question are questions of construction which raise for consideration multiple provisions of both the Migration Act 1958 (Cth) and the Migration Regulations 1994. Several decisions, of this Court and of the Federal Circuit Court of Australia (FCCA), also require analysis.

2    This appeal was heard concurrently with the appeals in Sharma (see Sharma v Minister for Immigration and Border Protection [2015] FCAFC 180) and El Masri (see El Masri v Minister for Immigration and Border Protection [2015] FCAFC 181), both appeals being from judgments of the same judge of the FCCA in which that judge applied the same reasoning.

3    The issues in the appeal are best understood in the context of the relevant facts and of the primary judge’s reasons for judgment.

The relevant facts

4    On 29 November 2013, Mr Rana Ahmad, the appellant, applied for a Temporary Business Entry (Class UC) subclass 457 visa. He gave a sponsorship application transaction reference number and identified his sponsoring employer as Rana & Khan Property Group Pty Ltd (RKP).

5    Also on 29 November 2013, RKP applied for approval of the nomination of an occupation for a subclass 457 visa under s 140GB of the Migration Act and reg 2.73 of the Migration Regulations.

6    On 6 January 2014, the Department notified Mr Ahmad that it required additional information. That information related to English language ability and health examinations.

7    On 5 March 2014, the Minister granted RKP approval as an “approved standard business sponsor” for a three year period commencing on that day. RKP operated a real estate sales and property management business (residential and commercial) in Parramatta. As an approved sponsor, RKP was entitled to apply for approval of a nomination of a person for a subclass 457 visa during the three year period for which it was an approved sponsor. RKP was advised by the Minister’s Department in a letter dated 5 March 2014 that the person whom it wished to nominate should proceed with lodging an application for a relevant visa if they did not already hold such a visa. In other words, the Department’s administrative arrangements contemplated a person applying for a subclass 457 visa even though the nomination by a particular sponsor had not been finalised.

8    On 2 May 2014, the Minister’s delegate refused to approve RKP’s nomination of Mr Ahmad in relation to the proposed position of property manager on the basis that the delegate was not satisfied that the position was genuine (see Migration Regulations reg 2.72(10)(f)). We will refer to this decision as the nomination decision. RKP was told in the same letter that it could apply to the Tribunal within twenty-one days for a review of the nomination decision.

9    On the same day, i.e. 2 May 2014, the Minister’s delegate refused to grant Mr Ahmad a Temporary Work (Skilled) Class UC subclass 457 visa. We will refer to this decision as the visa decision. The delegate’s decision record contained the following statements:

On 02/05/2014, a decision was taken by the Department to refuse the application for 457 Nomination approval lodged by the applicant’s prospective employer, RANA & KHAN PROPERTY GROUP PTY LTD. As the applicant’s prospective employer is not an approved standard business sponsor, the nomination application lodged by the primary applicant’s prospective employer was unable to be assessed.

As the primary applicant’s business activity is not subject to an approved business nomination, I am therefore not satisfied that paragraph 457.223(4)(a) has been met.

Therefore, I am not satisfied that clause 457.223(4)(a) has been met.

In his covering letter dated 2 May 2014, in which the visa decision was notified to Mr Ahmad, the delegate stated: “The decision can be reviewed.” As will shortly emerge, that statement is not supported by the Minister in this appeal.

10    It might be added that the delegate’s statement in the extract set out above to the effect that RKP “is not an approved standard business sponsor” and, therefore, “the nomination application lodged by [RKP] was unable to be assessed” was incorrect in two respects. First, RKP was an approved standard business sponsor throughout the three year period commencing 5 March 2014. Secondly, it was incorrect to say that RKP’s nomination application was unable to be assessed. As noted above, the application had in fact been assessed, albeit by a different delegate. That delegate refused the application on 2 May 2014 on the basis that he was not satisfied that the position associated with the nominated occupation was genuine.

11    It was the case, however, that at the time of the visa decision there had been no approval of RKP’s nomination application under s 140GB, with the consequence that the relevant requirement in the then cl 457.223(4)(a) was not satisfied. We note parenthetically that the delegate erroneously applied the wrong version of that provision, but it was not suggested that anything of significance in the appeal turned on that error.

12    On 22 May 2014, at 11.12 am, RKP applied to the Tribunal for a review of the nomination decision.

13    On the same day, i.e. 22 May 2014, at 3.48 pm, Mr Ahmad lodged an application with the Tribunal for review of the visa decision.

14    By letter dated 29 January 2015, an officer of the Tribunal wrote to Mr Ahmad’s migration agent seeking further information in relation to RKP’s application for review of the nomination decision.

15    By letter dated 6 March 2015, the Tribunal notified Mr Ahmad that a preliminary view had been formed that his application for review was not valid and that the Tribunal did not have jurisdiction to conduct a review. This was said to be following the recent decision of the FCCA in Minister for Immigration and Border Protection v Lee [2014] FCCA 2881.

16    By email dated 7 March 2015, Mr Ahmad’s migration agent notified the Tribunal officer that the application to review the nomination decision had been lodged before the application to review the visa decision. Despite that, on 11 March 2015, the Tribunal concluded that it lacked jurisdiction to review the visa decision. The Tribunal stated as follows in [5] and [8]-[9] of the decision record:

Following the decision of the Federal Circuit Court in MIBP v Lee [2014] FCCA 2881, for the purposes of s 338(2)(d)(i) there must have been, at the time the review application was made, a nomination of an occupation approved and in force. For the purposes of s 338(2)(d)(ii), there must have been at the relevant time, a review of a sponsorship refusal decision pending before the Tribunal. The Tribunal does not have jurisdiction where an application for review of a decision to refuse a nomination was pending at the time the review application was lodged, as s 338(2)(d)(ii) only refers to a review of a decision not to approve the sponsor.

… As indicated above, and as raised in the Tribunal’s letter of 6 March 2015, the Tribunal does not have jurisdiction where an application for review of a decision to refuse a nomination was pending at the time the review application was lodged, as s.338(2)(d)(ii) only refers to review of a decision not to approve the sponsor.

The Tribunal finds that at the time the review application was lodged on 22 May 2014, there was no nomination of an occupation relating to the applicant that was approved under s.140GB of the Act and was in force. At that time, there was also no application for review of a decision not to approve the sponsor, which was pending before the Tribunal.

(Original emphasis)

17    On 12 March 2015, the Tribunal notified Mr Ahmad that it had decided that it had no jurisdiction to determine his application.

18    On 11 June 2015, the Tribunal gave its decision in respect of RKP’s application for review of the adverse nomination decision. The Tribunal affirmed the delegate’s decision not to approve the nomination, but on a different basis. The Tribunal found that the terms and conditions of Mr Ahmad’s employment by RKP were less favourable than the terms and conditions that were provided to an Australian citizen performing equivalent work at the same location (which meant that reg 2.72(10)(c) of the Migration Regulations was not satisfied).

Summary of primary judge’s reasons

19    Mr Ahmad applied to the FCCA for judicial review of the Tribunal’s decision that it had no jurisdiction in respect of the visa decision (see Ahmad v Minister for Immigration and Border Protection [2015] FCCA 1486). He argued that the Tribunal had made a jurisdictional error because it had misconstrued s 338(2)(d)(ii) of the Migration Act. In particular, he contended that the Tribunal had misconstrued that provision in concluding that the phrase an “application for review of a decision not to approve the sponsor” did not include an application for review of a decision not to approve the sponsor’s nomination of an occupation in relation to Mr Ahmad under s 140GB of the Migration Act when read together with reg 2.72 of the Migration Regulations. Mr Ahmad argued that, for the purpose of s 338(2)(d)(ii) of the Migration Act, that phrase:

(a)    was not confined to an application for review of a decision not to approve an application by the sponsor to be approved as a standard business sponsor under s 140E of the Migration Act when read with reg 2.59 of the Migration Regulations; and

(b)    included 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 Migration Act, when read with reg 2.72 of the Migration Regulations.

20    The primary judge noted at [2] that, immediately prior to lodging the application in the Tribunal for review of the delegate’s visa decision, an application for review of the delegate’s decision under s 140GB to refuse to approve a nomination under reg 4.02(4)(d) had been lodged by the sponsor, i.e. by RKP.

21    At [3] the primary judge noted that the parties were agreed that, at the time of the making of the application for review of the visa decision, the Minister had not approved the nomination under s 140GB(2) in respect of the appellant. The primary judge further noted that Mr Ahmad’s counsel accepted that the FCCA would follow the earlier decision of Judge Nicholls in Lee. The primary judge added that, to the extent relevant, Lee was consistent with the principles identified in Robertson J’s decision in this Court in Minister for Immigration and Citizenship v Islam [2012] FCA 195; 202 FCR 46. As will emerge, see [66] below, the primary judge took a different view on this issue in a subsequent decision, largely as a result of concessions which were made by the Minister in that other case that this aspect of Lee was incorrect.

22    The primary judge then turned his attention to Mr Ahmad’s reliance on s 338(2)(d)(ii). Mr Ahmad submitted before his Honour that this provision implicitly included a decision not to approve a sponsor nomination. That construction was rejected, primarily because the primary judge concluded that:

(a)    the reference to the phrase “the sponsor” in s 338(2)(d)(ii) did not pick up the meaning of the word “sponsored” as it appeared in reg 4.02(1AA);

(b)    after noting that the Migration Act dealt with two different processes (i.e. one relating to the decision to approve a sponsor and the other relating to the decision to approve the nomination), his Honour found that the reference in s 338(2)(d)(ii) to the requirement that there be on foot an application to review a decision not to approve the sponsor, was a reference to a person who has applied to be an approved sponsor under s 140E (and not a review of a nomination decision);

(c)    the reference in s 338(2)(d)(ii) to the sponsor was a reference to the person who was an approved sponsor, consistently with the definition in s 5 of the Migration Act;

(d)    to the extent that s 18A of the Acts Interpretation Act 1901 (Cth) (AIA) was of any assistance, the primary judge stated that it supported the meaning of “approved sponsor” as defined in s 5 as being the person to whom “the sponsor” was referring in s 338(2)(d)(ii); and

(e)    extrinsic materials did not support Mr Ahmad’s argument.

23    For these reasons, the primary judge held that the Tribunal was correct to conclude both that it had no jurisdiction and also that s 338(2)(d)(ii) of the Migration Act had no application to this case.

The relevant legislative provisions summarised

24    The relevant provisions are numerous and complex. They arise under both the Migration Act and the Migration Regulations. Part of the complexity arises from the fact that relevant provisions in the Migration Act and the Migration Regulations have been amended, particularly in provisions which were made in 2003, 2008 and 2009.

25    It is convenient to trace the relevant legislative history by reference to amendments which were made to the Migration Act and/or Migration Regulations in 2003, 2008 and 2009. The parties were agreed that amendments made in 2013 by the Migration Amendment (Temporary Sponsored Visas) Act 2013 (Cth) were not relevant to the issues in the appeal.

26    It is also to be noted that by the Migration Legislation Amendment Regulation 2012 (No 4), commencing on 24 November 2012, the subclass 457 visa was changed in title from “Business (Long Stay)” to “Temporary Work (Skilled)”.

(a) 2003 amendments

27    Important amendments relating to the processes of sponsorship and nomination were made by the Migration Legislation Amendment (Sponsorship Measures) Act 2003 (Cth) (the 2003 Amendment Act). Those amendments commenced on 14 October 2003. A new Div 3A was inserted in Pt 2 and amendments were also made to Pt 5 in relation to “MRT-reviewable decisions”. The new Div 3A in Pt 2 introduced a new regime of sponsorship requirements for temporary residents’ visas in Australia. According to the Explanatory Memorandum to the relevant Bill, the amendments were intended “to provide a comprehensive and transparent framework for the regulations to prescribe requirements relating to sponsorship”. New s 140A provided that the new sponsorship regime applied to visas of a prescribed kind (however described). The first visa subclass specifically prescribed for this purpose was subclass 457: item 16 of Sch 3 to the Migration Amendment Regulations 2004 (No 3) which inserted reg 4.02(1A), with effect, subject to transitional provisions, from 1 July 2004. Item 16 provided:

[16] After subregulation 4.02 (1)

insert

(lA)    For paragraph 338(2)(d) of the Act, a Subclass 457 (Business (Long Stay)) visa is prescribed.

…

In the result, the form of reg 4.02 was (relevantly):

4.02    Prescribed MRT-reviewable decisions and who may apply for review (Act, ss 338 and 347)

(1)    In this regulation:

business sponsor means:

(a)    a standard business sponsor (other than a standard business sponsor approved under regulation 1.20DA); or

(b)    a pre-qualified business sponsor.

Note     From 1 July 2003, 2 kinds of business sponsorship are provided for by these Regulations: standard business sponsorship approved under regulation 1.20D and standard business sponsorship approved under regulation 1.20DA (which relates to overseas businesses).

However, an application for approval as a standard business sponsor, or a pre-qualified business sponsor, made before 1 July 2003 but not approved or rejected before 1 July 2003, will continue to be dealt with under regulation 1.20D as in force before 1 July 2003.

(1A)    For paragraph 338(2)(d) of the Act, a Subclass 457 (Business (Long Stay)) visa is prescribed.

(4)    For subsection 338(9) of the Act, each of the following decisions is an MRT-reviewable decision:

(a)    a decision under regulation 1.20D, as in force before, on or after 1 July 2003, to reject a person’s application;

(b)    a decision under regulation 1.20E to refuse to renew the approval of a person;

(c)    a decision under section 137B of the Act to cancel the approval of a person as a business sponsor;

(d)    a decision under regulation 1.20H to refuse to approve the nomination of an activity by a business sponsor;

…

28    New s 140B stated that the regulations may provide that sponsorship by an approved sponsor be a criterion for a visa of a prescribed kind (however described). The term “approved sponsor” was defined in s 5 as having the meaning in s 140D, at least in relation to a visa of a kind (however described) to which Div 3A of Pt 2 applied. New s 140D defined “approved sponsor”, and ss 140E and 140F set out the process for becoming an approved sponsor. The conditions for a person to be an “approved sponsor” under s 140D included that the person had, at a particular time, given their written consent to sponsor another person for a visa and that consent had not been withdrawn by written notice to the Minister (s 140D(a)). Another condition was that, before that particular point in time, the first person had approval from the Minister as a sponsor of the second person for the visa, whether the second person was named in the approval or was otherwise described (s 140D(b)). There were other conditions but they need not be set out.

29    The 2003 Amendment Act also introduced s 338(2)(d), which qualified the availability of MRT review for certain visa refusals.

30    Section 338, as relevantly amended, provided:

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.

…

(Original emphasis)

31    Section 338(9) read:

(9)    A decision that is prescribed for the purposes of this subsection is an MRT-reviewable decision.

32    The references in s 338(2)(d) to being “sponsored by an approved sponsor” and to a “decision not to approve the sponsor”, reflected the language in ss 140B(1), 140D and 140E as originally enacted.

33    The Explanatory Memorandum for the Bill that became the 2003 Amendment Act identified the purpose underlying s 338(2)(d) as being to “prevent abuse of the merits review process by certain temporary visa applicants who failed to meet the sponsorship requirements of their visa”. It was stated that the new s 338(2)(d) was intended to:

… ensure that only those visa applicants who have an approved sponsor, or are seeking review of a decision to refuse to approve sponsorship, may apply to the MRT for review of a decision to refuse to grant a prescribed visa. This is to prevent abuse of the merits review process by refused visa applicants, who have no sponsor, and therefore no ability to meet the criteria for the grant of the visa, seeking to extend their stay in Australia by lodging a review application.

34    By s 337, the interpretation section for the purposes of Pt 5, the terms “nominated” and “sponsored” were, and are, both defined as having the same meaning as in the Migration Regulations.

35    At this time, as noted above, “approved sponsor” in s 5(1) of the Migration Act was defined as follows:

approved sponsor, in relation to a visa of a kind (however described) to which Division 3A of Part 2 applies, has the meaning given by section 140D.

The definition now refers to a person who has been approved under s 140E.

36    At that time, the concept of “sponsorship” was the subject of reg 1.20 of the Migration Regulations, which provided:

1.20    Sponsorship

(1)    The sponsor of an applicant for a visa is a person (except a person who proposes on the relevant approved form another person for entry to Australia as an applicant for a permanent humanitarian visa) who undertakes the obligations stated in subregulation (2) in relation to the applicant.

…

37    At that time, there were detailed provisions in Div 1.4A of the Migration Regulations concerning sponsorship and nomination for business entry visas. Reg 1.20A described the objects of that Division as providing for:

(a)    applications for approval as a business sponsor;

(b)    nominations by business sponsors of activities to be undertaken in Australia by prospective holders of subclass 457 visas;

(c)    approval of those applications and nominations; and

(d)    prescribed grounds for cancelling approvals as a business sponsor.

38    The regulations in Div 1.4A provided for the making of applications to the Minister for approval as a standard business sponsor (reg 1.20C); the Minister’s power to approve or reject an application for approval as a standard business sponsor (reg 1.20D); the power of various persons (including a person who was a party to a labour agreement or a person who was a standard business sponsor) to nominate to the Minister an activity in which an individual was proposed to be employed by the person in Australia (reg 1.20G); and the Minister’s duty to approve or refuse such a nomination (reg 1.20H).

39    Section 65 of the Migration Act relevantly provided that the Minister was to grant a visa if the Minister was satisfied that the criteria prescribed by the Migration Regulations were satisfied. The criteria which were relevant to the visa sought by Mr Ahmad were set out in cll 457.111 to 457.611 in Sch 2 to the Migration Regulations. A distinction was drawn there between criteria which had to be satisfied at the time of application, as opposed to criteria which had to be satisfied at the time of decision.

(b) 2008 amendments

40    Further relevant substantial amendments were then made to Div 3A by the Migration Legislation Amendment (Worker Protection) Act 2008 (Cth) (the 2008 Amendment Act) which, for material purposes, commenced on 14 September 2009. Relevantly, the definition of “approved sponsor” in s 140D was repealed and replaced with a new definition in s 5 which, in broad terms, provided that a person was an approved sponsor if that person either:

(a)    was approved under s 140E; or

(b)    was a party to a work agreement.

41    Under s 140E(1), the Minister was obliged to approve a person as a sponsor in relation to one or more classes prescribed for the purpose of subsection (2) if the prescribed criteria were satisfied in respect of the person. Under this new regime, a person became an “approved sponsor” once they met the prescribed approval criteria, as opposed to when the person provided their written consent to sponsor a particular visa applicant as previously was the case; and, instead of approving a person as a sponsor at large, the Minister was to approve a person as a sponsor in relation to one or more classes of approved sponsor.

42    A “work agreement” was defined in s 5 to mean an agreement which satisfied requirements prescribed by the regulations. In very general terms this meant that a “work agreement” was an agreement between the Commonwealth (represented by one or more Ministers) and another person or organisation, detailing arrangements whereby the other person might sponsor temporary visa holders to perform work.

43    The purpose of moving forward the point in time at which a person became an “approved sponsor” was explained in the Explanatory Memorandum to the Bill which became the 2008 Amendment Act (at [13]):

… to ensure that a person can be required to satisfy a sponsorship obligation from the time they meet the sponsorship approval criteria under section 140E (i.e. before a visa is granted). An example of the type of obligation that would be desirable to impose before a visa is granted could be the obligation to notify the Department of Immigration and Citizenship (the department) of any change in circumstances that may affect the sponsor’s capacity to comply with other obligations; or any change to the information that contributed to the business or organisation being approved as a sponsor, or the approval of a nomination.

44    The 2008 Amendment Act repealed ss 140B to 140D and inserted a new heading to Subdiv B of Div 3A of Pt 2, namely “Subdivision B – Approving sponsors and nominations”.

45    Significantly, the 2008 Amendment Act also introduced s 140GB so as to confer upon the Minister an express power to prescribe regulations in relation to the nomination process. Section 140GB provided:

140GB    Minister to approve nominations

(1)    An approved sponsor may nominate:

(a)    an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

(i)    the applicant or proposed applicant’s proposed occupation; or

(ii)    the program to be undertaken by the applicant or proposed applicant; or

(iii)    the activity to be carried out by the applicant or proposed applicant; or

(b)    a proposed occupation, program or activity.

(2)    The Minister must approve an approved sponsor’s nomination if prescribed criteria are satisfied.

(3)    The regulations may establish a process for the Minister to approve an approved sponsor’s nomination.

(4)    Different criteria and different processes may be prescribed for:

(a)    different kinds of visa (however described); and

(b)    different classes in relation to which a person may be approved as a sponsor.

46    The Explanatory Memorandum explained this amendment at [78]-[80]:

78.    … Currently, regulations dealing with the nomination process are prescribed under existing sections 140E and 140F because nomination is part of the process of becoming an “approved sponsor”.

79.    An express power to prescribe a process and criteria in relation to nomination is required because nomination will no longer be part of the process of becoming an “approved sponsor”, rather a nomination will be made by a person who is already an “approved sponsor”…

80.    The kinds of criteria for approval of a nomination may include criteria which ensure that a non-citizen’s skills are appropriate for their proposed occupation, program or activity that they will undertake in Australia; or an occupation is specified in an instrument in writing setting out occupations for which there is a skills shortage.

47    This explanation in the Explanatory Memorandum illuminates another relevant aspect of s 140GB regarding an approved sponsor’s entitlement to make a nomination. Unlike the previous position, where the approved sponsor could only nominate a person for a visa of a prescribed kind, s 140GB provided that an approved sponsor could nominate, in relation to a visa of a prescribed kind, either:

(a)    a person who was a visa applicant or proposed visa applicant, in relation to a proposed occupation, program or activity to be undertaken by that person; or

(b)    a proposed occupation, program or activity (i.e. without reference to any particular person).

48    The reasons for this dichotomy were explained in [83]-[85] of the Explanatory Memorandum:

83.    The nomination may be of a visa applicant, or a proposed visa applicant, because the person who is being nominated may not have made a visa application at the time of nomination. Where the nomination is of a proposed occupation, program or activity, the particular non-citizen who will undertake the proposed occupation, program or activity does not necessarily need to be identified or known at the time of nomination.

84.    An approved nomination may be required to make a valid visa application, or may be required at time (sic) of decision of the visa application. This new provision provides the flexibility to provide for either in the regulations.

85    A nomination stage may not be required in relation to all kinds of visa for which sponsorship is a criterion for grant, or a criterion to make a valid application. An approved sponsor will only be required to seek an approved nomination from the Minister if an approved nomination is required to make a valid visa application, or is a criterion for grant of a visa.

(c) 2009 amendments

49    Further relevant amendments were made in 2009 by two tranches of amending regulations, namely the Migration Amendment Regulations 2009 (No 5) (SLI 115 of 2009) and the Migration Amendment Regulations 2009 (No 5) Amendment Regulations 2009 (No 1) (SLI 203 of 2009). All the amendments made under these amending regulations commenced by 14 September 2009, i.e. the day on which the relevant provisions in the 2008 Amendment Act commenced, thereby reinforcing the comprehensive legislative scheme relating to sponsorship which started on that day.

50    The first of those amending regulations amended the terms of reg 4.02 of the Migration Regulations (which prescribed what were “MRT-reviewable decisions” and who may apply for review) to reflect the amendments made by the 2008 Amendment Act to sponsorship and nomination. Regulations 4.02(4)(a) to (d) (which are set out in [27] above) were repealed. Some of those paragraphs were then replaced with provisions which prescribed “MRT-reviewable decisions” so as to include a decision to refuse an application for approval as a sponsor and a decision to refuse to approve a nomination. The new relevant provisions in reg 4.02(4)(a)-(d) provided:

Prescribed MRT-reviewable decisions and who may apply for review (Act, ss 338 and 347)

4.02    …

(4)    For subsection 338(9) of the Act, each of the following decisions is an MRT-reviewable decision:

(a)    a decision under subsection 140E(1) of the Act to refuse a person’s application for approval as a sponsor in relation to one or more classes of sponsor;

(b)    [repealed]

(c)    [repealed]

(d)    a decision under subsection 140GB(2) of the Act to refuse to approve a nomination;

…

51    Regulation 4.02(1AA) was inserted by the latter of those amending regulations. It replaced reg 4.02(1A) with the following:

(1AA)    For section 337 of the Act, sponsored includes being identified in a nomination under section 140GB of the Act.

52    As s 337 is a definition section for Pt 5 as a whole, the effect of reg 4.02(1AA) was to define “sponsored” wherever it appeared in that Part (including s 338) in this way.

53    It may be inferred that reg 4.02(1AA) was made in order to put beyond doubt that, for the purposes of s 337 of the Migration Act (and the review provisions generally under Pt 5), “sponsored” included being nominated under s 140GB in either of the two ways specified in that provision. These two ways involved an approved sponsor nominating either:

(a)    a person who is a visa applicant or proposed visa applicant in relation to a proposed occupation, program or activity to be undertaken by the person; or

(b)    a proposed occupation, program or activity (and without necessarily nominating any particular person who would undertake the proposed occupation, program or activity).

54    The Explanatory Statement which accompanied the second of those amending regulations which were made in 2009 stated the following in respect of reg 4.02(1AA) (at page 80):

This amendment ensures that the term “sponsored” is defined to include being identified in a nomination under section 140GB of the Act so that paragraph 338(2)(d) of the Act applies to visas within the enforceable sponsorship framework in Division 3A of Part 2 of the Act.

55    This statement further assists in identifying the purpose of that particular amendment, which was plainly intended to have a broad operation in the sense that it was intended to apply to visas (without limitation) within the enforceable sponsorship framework created by Div 3A.

56    Finally, insofar as the relevant legislative provisions are concerned, reference should be made to s 18A of the AIA, which provides:

18A    Parts of speech and grammatical forms

In any Act where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

Some relevant decisions: Islam, Lee and Kandel

57    It is desirable to now describe some decisions of both this Court and the FCCA (and its predecessor) in relation to some of these provisions.

58    In Islam, the FCCA’s predecessor (the Federal Magistrates Court) held that the Tribunal had jurisdiction under s 338(2)(d) to review a decision of a delegate which refused to grant subclass 457 visas to two applicants. The applications were lodged on the basis of one of the applicants being sponsored under a labour agreement by the sponsoring employer. Thus the application was made under the labour agreement stream, as opposed to the standard business sponsorship stream, in relation to subclass 457 visas (see cll 457.223(2) and (4)). Under s 338(2)(d) of the Migration Act, the Tribunal’s jurisdiction was limited to a case where it was a criterion for the grant of a visa that the visa applicant was “sponsored by an approved sponsor”. In Islam, the visa applicant was not sponsored by an approved sponsor at the time the review application was made, nor was there pending an application for review of a decision not to approve the sponsor. In other words, neither s 338(2)(d)(i) nor (ii) was satisfied. The relevant issue was to identify what did or did not constitute a criterion for the grant of the visa within the opening words of s 338(2)(d). The Federal Magistrates Court found that s 338(2)(d) did not limit the Tribunal’s jurisdiction because there was no criterion for the grant of the relevant visa which required an applicant under the labour agreement stream to be “sponsored by an approved sponsor”: the relevant criterion was that a visa applicant had to be nominated for an occupation under a labour agreement. In other words, the concepts of sponsorship and nomination were distinguished.

59    Robertson J allowed the appeal and set aside the orders of the Federal Magistrates Court. His Honour emphasised the importance of reg 4.02(1AA). Because that provision had the effect of including within the term “sponsored” the fact of being identified in a nomination under s 140GB of the Migration Act, his Honour, at [31], posed the relevant question under the opening words of s 338(2)(d) as “whether it was a criterion for the grant of the visa that the non-citizen is identified in a nomination under s 140GB of the Act (by an approved sponsor)”. His Honour held that the language of cl 457.223(2)(b)(ii), namely that “a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act”, when read with s 140GB and reg 2.72, had the effect that the visa applicant had to be identified in a nomination under s 140GB. In reaching that conclusion, his Honour gave effect to reg 4.02(1AA). In identifying the relevant criterion for the grant of the visa, his Honour held that the criterion in cl 457.223(2)(b)(ii) constituted a criterion for the grant of the visa, which meant that the visa applicant had to be identified in a nomination under s 140GB by an approved sponsor. Robertson J’s reasoning is reflected in the following extracts from his reasons for judgment:

40.    By reason of the operation of reg 2.72, particularly reg 2.72(5), the Minister must approve a proposed occupation under s 140GB(1)(b) where, relevantly, the Minister is satisfied that the person has identified in the nomination the applicant for the visa, who will work in the nominated occupation. This regulation was put into its present form by the Migration Amendment Regulations 2009 (No 5) (Cth) and the Migration Amendment Regulations 2009 (No 1) (Cth) which also added reg 4.02(1AA).

41    If the nomination of the occupation has been approved under s 140GB then the approved sponsor, being a party to a work agreement (other than a Minister), must have satisfied the Minister that the applicant for the visa has been identified in the nomination under s 140GB.

42    This is the language of the opening words of s 338(2)(d) read with reg 4.02(1AA), that is, that it was a criterion for the grant of the visa that the non-citizen is identified in a nomination under s 140GB of the Act (by an approved sponsor).

60    Robertson J also considered an alternative question, namely whether the criterion in cl 457.223(2)(c) that “the applicant is nominated by a party to the labour agreement” also constituted a criterion for the grant of a subclass 457 visa for the purposes of s 338(2)(d). His Honour noted that the cl 457.223(2)(c) criterion was not affected by the introduction on 14 September 2009 of various amendments to the sponsorship regime, including the introduction of reg 4.02(1AA). His Honour then noted, at [47]-[49], the following three relevant aspects of the regime:

(a)    in terms, s 140GB provided that an approved sponsor may nominate an applicant for a visa of a prescribed kind (however described), in relation to the applicant’s proposed occupation and reg 2.56(k) prescribed the subclass 457 visa;

(b)    an “approved sponsor” was defined to include a person (other than a Minister) who is a party to a work agreement; and

(c)    by reg 2.76(2) one type of work agreement must be a labour agreement that authorises the recruitment, employment, or engagement of services of a person who is intended to be employed or engaged as a holder of a subclass 457 visa.

61    Taking these matters into account, his Honour concluded that the criterion in cl 457.223(2)(c) that “the applicant is nominated by a party to the labour agreement” did not answer the language of s 338(2)(d), as affected by reg 4.02(1AA), that it was a criterion for the grant of the visa that the non-citizen was identified in a nomination under s 140GB. His Honour explained why that was so in [50]:

… This is because there is a gap between the identification by reg 2.76(2) of one type of work agreement as an agreement authorising the employment of a person intended to be employed as a holder of the visa and “the non-citizen being identified in a nomination under s 140GB” which is the language of the extended definition of “sponsored” in reg 4.02(1AA).

62    Accordingly, the Minister’s appeal in Islam was upheld: the Tribunal lacked jurisdiction to entertain the review application in the particular circumstances. On 17 August 2012, the High Court refused special leave to appeal.

63    Islam was cited with approval by Gageler J in SZABO v Minister for Immigration and Border Protection [2014] HCATrans 226 at 21, where his Honour said in reference to s 338(2)(d) of the Migration Act:

As to paragraph (d), the visa for which the plaintiff applied is a temporary visa of a kind prescribed by regulation 4.02 for the purpose of that paragraph. Was it a criterion for the grant of that visa that the plaintiff be sponsored by an approved sponsor? Read in the light of the definition in section 337 and in the light of regulation 4.02(1AA), the answer to that question is yes if the criterion prescribed for the grant of the visa required that the plaintiff be identified in a nomination under section 140GB: see Minister for Immigration and Citizenship v Islam [2012] FCA 195; (2012) 202 FCR 46 at 53-54 [38]-[43].

64    Lee was decided after Islam. Judge Nicholls upheld the Minister’s contention that the Tribunal lacked jurisdiction to review a decision by the Minister’s delegate concerning applications for subclass 457 visas. The relevant issue was identified by Judge Nicholls in [30] as whether, for the purposes of s 338(2)(d)(i), the requirement that the visa applicant be sponsored by an approved sponsor at the time of the application for review meant that there must exist an effective nomination under s 140GB at the time the application for review was made. The Minister relied on the reasoning and findings in Islam. After setting out extensive passages from Islam, Judge Nicholls found that the Tribunal erred in proceeding on the basis that it had jurisdiction. After purporting to apply Robertson J’s analysis in Islam, Judge Nicholls concluded at [44]:

… In the current case the relevant criterion derives from s 140GB of the Act (see cl 457.223(4)(a)(ii) of the Regulations). That criterion was, that for the delegate’s decision to be an MRT-reviewable decision there must be an approved nomination of an occupation in respect of the visa applicant.

(Emphasis added)

65    Judge Nicholls proceeded to state at [47] that the requirement that the visa applicant be sponsored at the time of the application for review could not be satisfied in the particular circumstances where the approval, which had been given at some antecedent point in time, had ceased or did not have currency as at the time of the application for review. The earlier approval of the nomination of the particular occupation by the visa applicant’s sponsor in Lee had expired one year after that approval was given in accordance with reg 2.75. Accordingly, there was no relevant nomination which was approved at the time the application for review was made to the Tribunal. Therefore, Judge Nicholls held that the Tribunal lacked jurisdiction to conduct the review.

66    In the present case, as noted above, the primary judge relied upon Lee in concluding that the Tribunal was correct to hold that it lacked jurisdiction under s 338(2)(d)(i) to conduct a review of the visa decision. Ahmad was decided on 29 May 2015. On 7 August 2015, the same primary judge delivered judgment in another matter: Kandel v Minister for Immigration and Border Protection [2015] FCCA 2013. His Honour held in that case that the Tribunal erred in concluding that it lacked jurisdiction to consider an application for review in circumstances where a nomination application was still under consideration. The applicant’s counsel submitted that Islam did not support a requirement that there be an approved nomination of an occupation at the time of the application for review and that it was sufficient that the visa applicant be a person who was identified in a nomination under s 140GB by an approved sponsor.

67    With the Court’s leave in Kandel, the Minister filed post-hearing written submissions in which the Minister acknowledged that Judge Nicholls’ was incorrect to say in Lee that there must be an “approved” nomination of an occupation to satisfy s 338(2)(d)(i) of the Migration Act. The Minister accepted that, having regard to the terms of reg 4.02(1AA), s 338(2)(d)(i) would also be satisfied if there was a nomination under s 140GB(1) of the Migration Act which was yet to be decided at the time of the application for review of the visa decision in the Tribunal. Having acknowledged that matter, however, the Minister submitted in Kandel that Lee was not incorrectly decided on its own facts. That was because, in Lee, the relevant nomination had ceased by the effluxion of time before the application for review was made to the Tribunal. The Minister submitted in Kandel that Judge Nicholls was correct to hold in [47] of Lee that the Tribunal lacked jurisdiction where the relevant nomination “has ceased or does not have currency at the time of the application for review”.

68    The primary judge made no direct reference to his earlier decision in Ahmad when he accepted and acted upon the Minister’s concessions in Kandel.

The appellant’s submissions summarised

69    Mr Ahmad sought leave to amend his notice of appeal so as to rely on Kandel in relation to s 338(2)(d)(i) of the Migration Act, as well as to press his case in relation to s 338(2)(d)(ii). The Minister did not oppose the grant of leave. Leave was granted, noting that the basis for pleading this additional ground of appeal only arose after judgment was delivered by the court below in this proceeding.

70    The grounds of appeal in the amended notice of appeal, dated 7 October 2015, were in the following terms.

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.

The parties’ submissions

71    Mr O Jones, who appeared for Mr Ahmad, submitted that the relevant legislative regime concerning subclass 457 visas envisaged a “trilogy” of applications. The first was an application by a sponsor to be approved as a standard business sponsor. Section 140E(1) of the Migration Act required the Minister to approve a person as a sponsor if prescribed criteria were satisfied. Section 140E(2) provided that the Migration Regulations must prescribe classes in relation to which a person may be approved as a sponsor. Regulation 2.59 prescribed the criteria for approval as a “standard business sponsor”. There is no dispute that RKP was an approved standard business sponsor.

72    The effect of s 338(9) of the Migration Act, when read with reg 4.02(4)(a) of the Migration Regulations, was that a refusal by the Minister to grant an approval under s 140E(1) of the Migration Act was a “MRT-reviewable decision” for the purposes of s 338(2).

73    The second application related to the approval of a standard business sponsor’s nomination. Relevantly, s 140GB(1) of the Migration Act enabled an approved business sponsor to nominate an applicant or a proposed applicant for the visa in relation to the applicant’s or proposed applicant’s proposed occupation. Section 140GB(2)(b) obliged the Minister to “approve an approved sponsor’s nomination” if the prescribed criteria were satisfied. Those criteria were prescribed in regs 2.72(3) to (12) (see also reg 2.72(1)(a)).

74    The third application related to the Minister’s decision to grant or refuse a visa under s 65 of the Migration Act. If the Minister refused the application, that refusal was reviewable to the extent that this was provided for under s 338 (the terms of which are set out in [30] above).

75    Mr Jones identified two central issues of construction relating to ss 338(2)(d)(i) and (ii) respectively:

(a)    what is the scope of the expression “being identified in a nomination under section 140GB of the Act” in reg 4.02(1AA) of the Migration Regulations; and

(b)    what is the “decision not to approve the sponsor” to which s 338(2)(d)(ii) of the Migration Act refers?

76    It is convenient to summarise separately Mr Jones’ submissions in respect of these two provisions.

77    The proper construction of s 338(2)(d)(i): Mr Jones relied on Kandel on the question whether the Tribunal had jurisdiction under s 338(2)(d)(i). He contended that it was evident in Kandel that the primary judge did not accept the Minister’s contention that it was necessary for the nomination decision to be pending at the time of the application for review of the visa decision for the purposes of s 338(2)(d)(i). Jurisdiction persisted even where the nomination had lapsed: the visa applicant might be able to obtain a fresh sponsor and approved nomination. Mr Jones contended that that reasoning was correct and should be applied here. In particular, it was submitted that it was sufficient that, at the time an application is made to the Tribunal for review of a visa decision, the visa applicant has been identified in a nomination at an earlier point in time. Such a construction, so it was submitted, was consistent with the mischief to which that provision is addressed, which Mr Jones contended is the same as that addressed by s 338(2)(d)(ii).

78    Mr Jones contended that the extrinsic materials supported his argument that “sponsorship” includes nomination, referring in particular to the extract from the Explanatory Memorandum to the Bill which became the 2003 Amendment Act which is set out in [33] above.

79    Mr Jones submitted that the target mischief was not offended 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 was adverse or the nomination had by then lapsed. He added that, having been identified in a nomination previously, it could not necessarily be said that such an applicant had no prospect of being subsequently identified in a nomination and there being a positive nomination decision. It might be noted that this contention is inconsistent with the Minister’s position that Lee was correctly decided on its own facts, because the nomination there had lapsed.

80    Mr Jones also advanced a narrower construction of the relevant provisions. He submitted that, even if the Minister was correct in relation to this aspect of Lee, the facts here put Mr Ahmad in a different position because, at the time he applied for a review of the visa decision, he also had pending an application for review of the nomination decision. Accordingly, there was a prospect of the nomination decision being reversed and him gaining nomination. The fact that the nomination decision was, in fact, ultimately affirmed by the Tribunal at a later time was not the point, so it was contended, because to the extent that a pending nomination was required under s 338(2)(d)(i), that requirement operated only at the time of the application for review of the visa decision.

81    The proper construction of s 338(2)(d)(ii): Mr Jones’ contentions in respect of s 338(2)(d)(ii) may be summarised as follows.

82    First, Mr Jones submitted that the phrase “decision not to approve the sponsor” was a broad one and, on its ordinary meaning, should not be confined to mean a decision not to approve the sponsor as a sponsor. Rather, it should include a decision not to approve the sponsor in any way, including not to approve the sponsor’s nomination of a visa applicant for a proposed occupation.

83    Secondly, Mr Jones submitted that the term “sponsor” should be given a broad meaning by way of implication under interpretation legislation. Section 337 of the Migration Act defined “sponsored” to mean the same as it does in the Migration Regulations. Regulation 4.02(1AA) provided that the term “includes being identified in a nomination under section 140GB of the Act”. Section 18A of the AIA provided that where a word or phrase is given a particular meaning, other parts of speech have corresponding meanings. The word “sponsored” is a participle, but the same meaning should be given when the word appeared in s 338(2)(d)(ii) as a noun (viz “sponsor”). The primary judge erred in refusing to apply s 18A of the AIA, so it was submitted.

84    Thirdly, Mr Jones contended that his constructions of the relevant provisions were justified so as to avoid the “harsh result” which would otherwise follow under the Minister’s construction.

85    Mr G Kennett SC (who appeared with Mr T Reilly for the Minister) submitted that the task of construing both s 338(2)(d)(i) and (ii) should begin and end with consideration of the statutory text in its context, citing Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] and Alcan (NT) Alumina Pty Ltd v Federal Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47].

86    The proper construction of s 338(2)(d)(i): As to the appellant’s reliance on Kandel in respect of s 338(2)(d)(i), the Minister submitted that the approved sponsor there had identified the visa applicant in a new application for nomination which was made shortly prior to the application to the Tribunal for review of the decision refusing the applicant the visa, and which remained undecided at that time. The Minister stated that he had conceded in Kandel that the Tribunal had jurisdiction under s 338(2)(d)(i), having regard to reg 4.02(1AA) and the express provision there that, for the purposes of s 337 of the Migration Act, sponsored included being identified in a nomination under s 140GB. The Minister also acknowledged that he had conceded in Kandel that s 338(2)(d)(i) would also be satisfied if there was a nomination application pursuant to s 140GB(1) which was yet to be decided at the time of the making of the application to the Tribunal for review.

87    The Minister submitted, however, that the facts here were different from those in Kandel. Here there was no nomination pursuant to s 140GB which was yet to be decided at the time of the making of the application to the Tribunal for review of the visa decision. Rather, the nomination here had been rejected and a review of that decision had been sought by the sponsor and was still to be determined, a set of circumstances which the Minister submitted was not covered by Kandel.

88    The Minister opposed both the broader and narrower constructions advanced on behalf of the appellant. As to the broader construction, the Minister relied on Judge Nicholls’ rejection of that argument in Lee at [48]. He submitted that Lee was correct in this respect in holding that there was no jurisdiction where the relevant nomination had ceased or did not have currency as at the time of the application for review. He also submitted that a nomination was effectively spent if it was refused by the delegate. He accepted, however, that in those circumstances a fresh nomination application could be made and, if that occurred before the application for review of the visa decision was made to the Tribunal, the Tribunal would have jurisdiction in respect of that review application. That was because the nomination application was pending. He submitted, however, that s 338(2)(d)(i) required a set of circumstances in which the appellant “is sponsored” in the relevant sense at the time the review application is made and that it was insufficient that the appellant was sponsored at some antecedent point in time.

89    As to the narrower construction, the Minister submitted that it was insufficient to confer jurisdiction upon the Tribunal in relation to an application to review an adverse visa decision if at the time that application was made an application was also on foot seeking a review of an adverse nomination decision. The Minister sought to defend his position on this issue on the basis that the delegate’s refusal of the nomination application rendered the initial nomination “spent”.

90    As noted above, in Kandel, the Minister acknowledged that Lee was incorrect in suggesting that there must be an “approved” nomination of an occupation for the Tribunal to have jurisdiction. The Minister conceded that, having regard to the terms of reg 4.02(1AA) (which stated: “For section 337 of the Act, sponsored includes being identified in a nomination under section 140GB of the Act”), s 338(2)(d)(i) would also be satisfied if there was a nomination under s 140GB(1) which was yet to be determined at the time of the making of the application for review to the Tribunal.

91    It is notable that reg 4.02(1AA) did not specify the point in time at which the identification in a nomination under s 140GB must occur. The Minister’s position was that the relevant time is the time when the application for review was made to the Tribunal. Accordingly, the Minister supported the outcome in Lee because the nomination there had lapsed at the time the application for review was made to the Tribunal. Similarly, the Minister defended the outcome in Kandel because, at the time the application for review of the visa decision was made with the Tribunal in that case, a fresh nomination had just been made and was undetermined at that point in time. Thus the Minister accepted that the Tribunal had jurisdiction in those circumstances.

92    The proper construction of s 338(2)(d)(ii): As to the appellant’s reliance on s 338(2)(d)(ii), the Minister defended the primary judge’s conclusion that this provision did not apply to the appellant’s circumstances. He submitted that there was a clear distinction in the Migration Act between the decision to approve a person as a sponsor (a matter dealt with in s 140E, as well as in ss 140F, 140G and 140GA and also in the definition of “approved sponsor in s 5(1)), and a decision to approve a nomination by an approved sponsor (which is dealt with in s 140GB). The Minister submitted that the reference in s 338(2)(d)(ii) to a “decision not to approve the sponsor” could only be a reference to a decision to refuse approval of a person as a sponsor under s 140E.

93    The Minister further submitted that the appellant’s reliance on s 18A of the AIA was misplaced because the appellant confused the separate concepts of approval of a sponsor with approval of a nomination by an approved sponsor. The appellant’s construction should be rejected, submitted the Minister, because it essentially required additional words to be read into s 338(2)(d)(ii) and the limited circumstances for that to occur were not satisfied here (citing Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; 253 CLR 531; at [35]-[40]).

94    Accordingly, the Minister submitted that both grounds of appeal should be dismissed.

Consideration

95    In our opinion, the starting point must be whether, within the meaning of s 338(2)(d), it is a criterion for the grant of the visa that the non-citizen, Mr Ahmad, “is sponsored by an approved sponsor”.

96    It was common ground between the parties that being “sponsored by an approved sponsor” is such a criterion. Clause 457.223(1) of Sch 2 to the Migration Regulations confirms that this is so, as a criterion to be satisfied at the time of decision. It may be noted that the requirement relates, in part, to a nomination of an occupation in relation to the applicant approved under s 140GB and that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved: cl 457.223(4)(a)(i) and (ii).

97    The next question is the meaning of the words “sponsored by an approved sponsor” in s 338(2)(d)(i).

98    The definition of the word “sponsored” in s 337, which applies to s 338 (see [34] above), picks up the meaning of the word “sponsored” in the regulations. Regulation 4.02(1AA) states that for s 337, sponsored includes being identified in a nomination under s 140GB. It follows that “sponsored by an approved sponsor” in s 338(2)(d)(i) includes not only “approved sponsor” as defined in s 5(1) of the Migration Act (relevantly, a person who has been approved by the Minister under s 140E) but also includes, by virtue of reg 4.02(1AA), being identified in a nomination under s 140GB.

99    Turning to s 338(2)(d)(ii), the expression “decision not to approve the sponsor” includes both the approval of the sponsor under s 140E and the approval of the nomination under s 140GB.

100    On the facts of the present case, an application for review of the decision not to approve the sponsor had been made and was pending at the time the application to review the decision to refuse to grant the visa to Mr Ahmad was made.

101    It follows that the Tribunal had jurisdiction.

102    In our opinion, this construction maintains the symmetry of s 338(2)(d), and is consistent with its purpose, as set out at [33] above. It avoids construing s 338(2)(d)(i) as if it contained unexpressed words dealing with review of a decision and permits s 338(2)(d)(ii) to do the work intended for it, that is, to give the Tribunal jurisdiction to review the refusal to grant a non-citizen a visa where there has been an adverse decision in relation to the approval of the sponsor, including the nomination under s 140GB, but a review is pending.

103    Section 338(9) is important in this respect. Amongst the decisions prescribed by reg 4.02(4) as Part 5-reviewable decisions are decisions under s 140E(1) to refuse a person’s application for approval as a sponsor in relation to one or more classes of sponsor and a decision under s 140GB(2) to refuse to approve a nomination.

104    This construction does not accept the bifurcation of the concept of “sponsored by an approved sponsor” where neither in concept nor by resort to legislative history is that bifurcation established. Put differently, the amendments to which we have referred involve including s 140GB in the meaning of sponsored as required by reg 4.02 (1AA).

105    Thus we accept Mr Ahmad’s submission that it is sufficient that at the time of the making of the application for review of the visa decision there is pending an application for review in respect of an adverse nomination decision.

106    At the time Mr Ahmad was refused a subclass 457 visa, he was “sponsored by an approved sponsor” in that his approved sponsor had nominated him in its nomination application; although that nomination application had been refused, his sponsor had applied to review that decision, and the review was pending.

107    Acceptance of the Minister’s construction of the relevant provisions would produce some anomalous and harsh results, which may be illustrated as follows. As noted above, the Minister accepted that if RKP had lodged a fresh nomination application upon receiving the adverse nomination decision, rather than initiating an application for review of that decision to the Tribunal within the prescribed time (i.e. 21 days), the Tribunal would have had jurisdiction to review the adverse visa decision. That is because, at the time the latter review application was made, there would have been a nomination which was current under s 140GB. Yet the Minister submitted that the Tribunal lacked jurisdiction to consider and determine Mr Ahmad’s application to review the visa decision notwithstanding that before the making of that application, RKP had initiated a review by the Tribunal of the nomination decision.

108    It is not easy to identify a rational explanation for this distinction. In particular, why should a visa applicant be deprived of his or her right to have the Tribunal review an adverse visa decision depending on whether the sponsor elected to lodge a fresh nomination application rather than exercise the sponsor’s right under the Migration Act to have the Tribunal review an adverse nomination decision?

109    The harsh results which follow from the Minister’s construction are well illustrated by the facts in one of the other two appeals which were heard at the same time as this appeal. In Sharma, the sponsor sought a review by the Tribunal of an adverse nomination decision. That application was made immediately before the visa applicant made his application for the Tribunal to review the adverse visa decision. By the time of the Tribunal’s hearing of the latter application, in which the Tribunal held that it lacked jurisdiction, the Tribunal (differently constituted) had in separate proceedings upheld the sponsor’s nomination appeal and approved the nomination. On the Minister’s construction, however, the Tribunal still lacked jurisdiction to review the adverse visa decision in that case. Clear language in the relevant provisions would be required to produce such a harsh and improbable result.

110    For the reasons given above, the text of the relevant provisions, when viewed in context, supports the construction propounded by Mr Jones on Mr Ahmad’s behalf (see [77] above). The reference to the harshness of the consequences produced by the Minister’s construction is a secondary consideration which serves to reinforce the conclusion that the proper construction is the narrower construction.

111     In relation to the decision of the Federal Circuit Court in Lee, it seems clear that it was correctly decided on its facts as the relevant nomination had ceased before the application to the Tribunal for review. We are also of the opinion, however, that the reasoning in [44]-[45] of Lee is incorrect insofar as it was held that there must be an “approved” nomination of an occupation to satisfy s 338(2)(d)(i) as this does not give effect to the terms of reg 4.02(1AA) that for s 337, and thus for s 338, “sponsored” includes being identified in a nomination under s 140GB.

112    In relation to the decision of the FCCA in Kandel, since it appears the applicant was identified in a nomination under s 140GB and it was lodged prior to the time of the lodging of the application to review the decision to refuse to grant the visa to the non-citizen, s 338(2)(d)(i) was satisfied, as held by Judge Street at [12].

113    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.

Conclusion

114    For these reasons, the appeal should be allowed and an appropriate declaratory order made that the Tribunal has jurisdiction in relation to Mr Ahmad’s application for review of the visa decision. The Tribunal’s decision should be set aside, as should the orders made by the FCCA. The Minister did not contest that there was utility in remitting the application to the Tribunal to be heard and determined according to law. Costs of the appeal should follow the event. The appellant should also have his costs of the FCCA proceeding. Appropriate orders will be made accordingly.

Associate:

Dated:    16 December 2015