FEDERAL COURT OF AUSTRALIA

El Masri v Minister for Immigration and Border Protection [2015] FCAFC 181

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court made on 19 June 2015 be set aside and in lieu thereof order:

(i)    the decision of the second respondent given on 10 April 2015 be set aside;

(ii)    the application for review dated 1 October 2014 be remitted to the second respondent for hearing and determination according to law;

(iii)    the first respondent pay the costs of the applicant.

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 1 October 2014.

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

REASONS FOR JUDGMENT

THE COURT

1    This appeal is from the judgment and orders of a judge of the Federal Circuit Court of Australia given and made on 19 June 2015. That judge dismissed an application for judicial review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) made on 10 April 2015, the Tribunal’s decision being that it did not have jurisdiction in the matter.

2    These reasons should be read with our reasons in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, given today.

Chronology

3    A chronology is as follows.

4    On 23 June 2014, Mr Khaled El Masri applied for a Temporary Business Entry (Class UC) (Temporary Work (Skilled)) visa (the visa). He specified as his sponsoring employer Marx and Co Pty Ltd.

5    By letter dated 15 July 2014, the Department said it required additional information A response was provided on 8 September and another on 12 September 2014.

6    On 12 September 2014, an application by Marx and Co Pty Ltd for approval as a sponsor was approved. That company was granted standard business sponsorship approval from 12 September 2014 to 12 September 2017.

7    On 16 September 2014, the delegate refused to grant the visa (the visa decision). The ground of refusal was with reference to clause 457.223B dealing with whether an applicant has adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia. The delegate said that the appellant had not provided this evidence.

8    Also on 16 September 2014, the application by Marx and Co Pty Ltd for approval of the nomination was refused (the nomination decision). That delegate decided that he did not consider the position associated with the nominated occupation of Contract Administrator to be genuine and consequently the appellant did not satisfy paragraph 2.72(10)(f) of the Migration Regulations 1994 (Cth) which required the position associated with the nominated occupation to be genuine.

9    On 1 October 2014 at 12.24 pm, Marx and Co Pty Ltd applied to the Tribunal for review of the decision to refuse the nomination of an occupation in respect of the appellant.

10    Shortly afterwards, at 12.27 pm on 1 October 2014, the appellant applied to the Tribunal for review of the decision to refuse the visa.

11    On 10 April 2015, the Tribunal held that it did not have jurisdiction in the matter. The Tribunal said that, following the decision in Minister for Immigration and Border Protection v Lee [2014] FCCA 2881, the Tribunal did 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 referred to review of the decision not to approve the sponsor.

12    On 8 May 2015, Mr El Masri applied to the Federal Circuit Court for judicial review of the decision of the Tribunal.

13    On 15 April 2015, the Tribunal affirmed the nomination decision.

14    In Mr El Masri’s judicial review application, the primary judge found, at [7], that there was pending at the time of the application for review of the visa an application to review the decision to refuse the nomination, but held that the Tribunal’s decision was correct given his previous decision in Ahmad v Minister for Immigration and Border Protection [2015] FCCA 1486.

The legislation

15    At the relevant time, s 338(2)(d) 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 notice of appeal

16    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

17    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 Mr El Masri, an application for review of the decision to refuse the business nomination application in relation to an occupation had been made and was pending. As noted at [13] above, the application to review the decision to refuse the business nomination application was not ultimately successful, but this did not affect the jurisdiction of the Tribunal to review the visa decision.

18    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.

Associate:

Dated:    16 December 2015