FEDERAL COURT OF AUSTRALIA

Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    On 3 July 2014, S.I.R.E.B. Company Pty Ltd (Sireb), which carries on a car wash business under the name “Malvern Hand Car Wash”, lodged with the Department of Immigration and Border Protection: (a) an application for approval as a standard business sponsor; and (b) an application for the approval of a nominated occupation, namely Chief Executive or Managing Director, naming the first appellant (Mr Dyankov) as the person who would work in the nominated occupation. On the same day, Mr Dyankov lodged an application for a Temporary Business Entry (Class UC) (subclass 457) visa (Subclass 457 visa). The second and third appellants, who are his wife and child, were named as secondary applicants on the visa application.

2    On 28 July 2014, Sireb was approved as a standard business sponsor. However, on 24 October 2014, a delegate of the first respondent (the Minister) refused Sireb’s application for approval of the nominated occupation. On the same day, the same delegate refused the appellants’ applications for visas. The appellants applied to the Migration Review Tribunal (the Tribunal), now the Administrative Appeals Tribunal, for review of the decision to refuse their visa applications. No application was made by Sireb to review the adverse decision on the nomination application. On 13 April 2015, the Tribunal decided that, in the circumstances, it did not have jurisdiction in the matter.

3    The appellants applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. On 24 August 2016, the Federal Circuit Court dismissed the application. The Court held that the Tribunal was correct to conclude that it did not have jurisdiction.

4    The appellants appeal to this Court from the judgment of the Federal Circuit Court. The appeal raises an issue of statutory construction of s 338(2)(d)(i) of the Migration Act 1958 (Cth). In brief terms, the issue is whether, in circumstances where an approved sponsor has nominated an occupation in relation to an applicant or proposed applicant for a visa (visa applicant), and the nomination has been refused, the visa applicant is “sponsored by an approved sponsor” for the purposes of s 338(2)(d)(i) of the Act.

5    In our view, having regard to the text and context of the provision, including its legislative history and the scheme of the legislation, the preferable construction is that the visa applicant is not “sponsored by an approved sponsor” in such circumstances. It follows that, unless an application for review of the adverse nomination decision is pending (in which case the Tribunal would have jurisdiction under s 338(2)(d)(ii)), the Tribunal would not have jurisdiction to review a refusal to grant a visa to the visa applicant.

Background facts

6    As noted above, on 3 July 2014, Sireb lodged an application for approval as a standard business sponsor. On the same date, Sireb lodged an application for the approval of a nominated occupation, namely Chief Executive or Managing Director. Although this application was not included in the appeal papers, it is evident from other documents that the application identified Mr Dyankov as the person who would work in the nominated occupation. Also on 3 July 2014, Mr Dyankov applied for a Subclass 457 visa, with the second and third appellants included as secondary applicants.

7    On 28 July 2014, Sireb’s application for approval as a standard business sponsor was approved.

8    On 24 October 2014, a delegate of the Minister refused Sireb’s nomination of an occupation. The delegate referred in the ‘decision record’ to reg 2.72 of the Migration Regulations 1994 (Cth) which prescribed criteria for approval of a nomination of an occupation in relation to an applicant for a Subclass 457 visa. Specifically, the delegate referred to reg 2.72(10)(f) which required the Minister to be satisfied that the position associated with the nominated occupation “is genuine”. The delegate stated that, upon consideration of the information provided by Sireb, the position of Chief Executive or Managing Director did “not appear to be a position necessary to the operations of the business”. Although the decision to refuse the nomination was reviewable, Sireb did not apply for review of the decision.

9    Also on 24 October 2014, the same delegate refused the appellants’ applications for visas. The delegate found that Mr Dyankov did not satisfy public interest criterion 4013 in Sch 4 to the Migration Act because the application was made within three years of his Class TU subclass 573 student visa being cancelled under s 116 of the Act on the basis that he breached condition 8202(2)(a) (concerning non-enrolment). The delegate noted that exclusion periods could be waived if there were compelling circumstances that affected the interests of Australia, or compelling or compassionate circumstances that affected the interests of an Australian citizen, permanent resident or eligible New Zealand citizen. However, the delegate considered that no such circumstances existed. Accordingly, the delegate was not satisfied that the criteria set out in cl 457.224 were met. It followed that the second and third appellants, as secondary applicants, did not meet the relevant criteria.

10    On 5 November 2014, the appellants applied to the Tribunal for review of the decision to refuse their visa applications (the letter from the Department enclosing the decision having stated that Mr Dyankov was entitled to apply to the Tribunal for merits review).

11    On 17 February 2015, the Tribunal wrote to the appellants indicating a preliminary view that the application for review was not valid, and that the Tribunal did not have jurisdiction to conduct a review. The letter stated that, following the decision of the Federal Circuit Court in Minister for Immigration v Lee & Ors [2014] FCCA 2881 (Lee), the Tribunal was of the view that for the application to be valid there needed to have been, at the time the application was made, either a nomination of an occupation approved and in force or an application for review of a decision to refuse the nomination pending before the Tribunal. The Tribunal invited the appellants to comment on this issue. Subsequently, the appellants’ lawyers provided a submission to the Tribunal. The appellants submitted that Lee was wrongly decided and that the Tribunal did have jurisdiction in relation to the review application.

12    On 13 April 2015, the Tribunal decided that it did not have jurisdiction in the matter. The Tribunal considered that it was bound by the decision in Lee. Applying that case, the Tribunal found that the delegate’s decision to refuse the visa application was not a reviewable decision within s 338(2)(d)(i) of the Migration Act because the nomination application had been refused. Further, the Tribunal was of the view that, in circumstances where there was no pending review of the decision to refuse the nomination application, the decision to refuse the visa application was not a reviewable decision within s 338(2)(d)(ii).

Legislative provisions

13    It is convenient now to refer to the relevant provisions of the Migration Act and the Migration Regulations. In doing so, we refer to the Act and Regulations as they stood at the time when the application to review the decision to refuse the grant of the visas was made, namely 5 November 2014. That is the relevant date for present purposes: see s 338(2)(d) of the Migration Act. For ease of expression, we will refer to the provisions in the present tense.

14    We will deal first with the provisions relating to sponsorship, then with the provisions relating to Subclass 457 visas, and lastly with the provisions relating to the review of decisions.

Sponsorship

15    Division 3A of Pt 2 of the Migration Act deals with sponsorship. The purposes of the Division, as set out in s 140AA, include:

(a)    to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages;

…

(c)    to balance the objective of ensuring employment and training opportunities for Australian citizens and Australian permanent residents with that of upholding the rights of non-citizens sponsored to work in Australia under the program;

(d)    to impose obligations on sponsors to ensure that:

(i)    non-citizens sponsored to work in Australia under the program are protected; and

(ii)    the program is not used inappropriately;

(Emphasis added.)

16    Subdivision B is headed “Approving sponsors and nominations”. Section 140E deals with the approval of sponsors and need not be set out for present purposes. Sections 140F, 140G and 140GA also relate to the approval of sponsors.

17    Section 140GB is headed “Minister to approve nominations” and provides as follows:

(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:

(a)    in a case to which section 140GBA applies, unless the sponsor is exempt under section 140GBB or 140GBC—the labour market testing condition under section 140GBA is satisfied; and

(b)    in any case—the prescribed criteria are satisfied.

Note:    Section 140GBB provides an exemption from the labour market testing condition in the case of a major disaster. Section 140GBC provides for exemptions from the labour market testing condition to apply in relation to the required skill level and occupation for a nominated position.

(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.

Section 140GBA is headed “Labour market testing—condition” and is not relevant for present purposes.

18    Subdivision C of Div 3A deals with sponsorship obligations. In general terms, an approved sponsor is required to satisfy the sponsorship obligations prescribed by the Regulations.

19    Regulation 2.72 of the Migration Regulations sets out criteria for approval of a nomination of an occupation in respect of which a holder of, or a visa applicant for, a Subclass 457 visa is identified as the person who will work in the occupation. It provides that, for the purposes of s 140GB(2), the criteria that must be satisfied for the Minister to approve a nomination are set out in sub-regulations (3) to (12). In particular, reg 2.72(5) provides:

The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

Thus, a nomination of an occupation in relation to a Subclass 457 visa must identify the visa holder or the visa applicant who will work in the occupation.

20    Further, reg 2.72(10) sets out a number of matters in respect of which the Minister is required to be satisfied in cases where the person making the nomination is a standard business sponsor. One of these matters (as noted earlier) is that the position associated with the nominated occupation is genuine (reg 2.72(10)(f)).

21    Regulation 2.75 deals with the period of approval of a nomination in relation to Subclass 457 visas. It provides as follows:

(1)    This regulation applies to a nomination of an occupation in which a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Temporary Work (Skilled)) visa is identified as the person who will work in the occupation.

(2)    An approval of a nomination ceases on the earliest of:

(a)    the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and

(b)    12 months after the day on which the nomination is approved; and

(c)    the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Temporary Work (Skilled)) visa; and

(d)    if the approval of the nomination is given to a standard business sponsor—3 months after the day on which the person’s approval as a standard business sponsor ceases; and

(e)    if the approval of the nomination is given to a standard business sponsor, and the person’s approval as a standard business sponsor is cancelled under subsection 140M(1) of the Act—the day on which the person’s approval as a standard business sponsor is cancelled; and

(f)    if the approval of the nomination is given to a party to a work agreement (other than a Minister)—the day on which the work agreement ceases.

22    The legislative history of the sponsorship provisions was described by the Full Court of this Court in Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365 (Ahmad) at [27]-[56].

Subclass 457 visas

23    The criteria for grant of a Subclass 457 visa are set out in Sch 2 to the Migration Regulations. The criteria include those set out in cl 457.223(4) which relevantly provides:

(4)    The applicant meets the requirements of this subclause if:

(a)    each of the following applies:

(i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

(ii)    the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

(iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

…

(Emphasis added.)

Thus, in the absence of an approved nomination, an applicant cannot satisfy the criteria for grant of a Subclass 457 visa.

Review of decisions

24    Part 5 of the Migration Act deals with the review of decisions. Section 337 concerns interpretation. It provides (among other things) that the words “nominated” and “sponsored” have the same meaning as in the Migration Regulations.

25    Section 338 is the key relevant provision for the issue raised by the appeal. Section 338(1) provides that a decision is an “MRT-reviewable decision” if this section so provides, unless certain matters apply (which are not presently relevant). Section 338(2) and (9) provide:

(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.

…

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

As may be noted, s 338(2)(d) refers to a visa that is “a temporary visa of a kind (however described) prescribed for the purposes of this paragraph”. A Subclass 457 visa is so prescribed: reg 4.02(1A)(k). Further, it is convenient to note that both a decision to refuse an application for approval as a sponsor and a decision to refuse to approve a nomination are prescribed for the purposes of s 338(9): reg 4.02(4)(a) and (d). Thus both are MRT-reviewable decisions.

26    Section 347 is headed “Application for review by Migration Review Tribunal”. Section 347(2) relevantly provides:

(2)    An application for review may only be made by:

(a)    if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—the non-citizen who is the subject of that decision; or

…

(d)    if the MRT-reviewable decision is covered by subsection 338(9)—the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.

27    Regulation 4.02 of the Migration Regulations deals with interpretation and relevantly provides:

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

…

(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;

…

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

…

(5)    For paragraph 347(2)(d) of the Act, an application for review of a decision mentioned in subregulation (4) may only be made by:

(a)    in the case of a decision mentioned in paragraph (4)(a)—a person to whose application the decision relates;

(c)    in the case of a decision mentioned in paragraph (4)(d)—the approved sponsor who made the nomination;

…

Thus, in the case of a nomination application, it is the approved sponsor (and not the visa applicant) who may seek review of a decision to refuse the nomination.

28    In Ahmad, the Full Court held that the expression “decision not to approve the sponsor” in s 338(2)(d)(ii) includes both a decision not to approve a sponsor under s 140E and a refusal of a nomination application under s 140GB: Ahmad at [99]. The Full Court’s reasons for reaching this conclusion were set out at [102]-[112], which we set out in full to provide context for the matters discussed below:

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 (ie 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].

Federal Circuit Court decision

29    In their application to the Federal Circuit Court, the appellants relied on five grounds. It is not necessary to set them out. The substance of the grounds was that the Tribunal had erred in concluding that it did not have jurisdiction. As noted in the reasons for judgment of the primary judge dated 24 August 2016 (the Reasons) at [24], it was not in dispute that Sireb was an approved sponsor at the relevant time. Nor was it disputed that the case did not fall within s 338(2)(d)(ii) of the Migration Act. The primary judge stated the issue before the Court at [24]:

The issue before the Court was whether the Applicant fell within s 338(2)(d)(i) by virtue of Sireb Pty Ltd having applied for approval of a nomination of a proposed occupation for the Applicant under s 140GB of the Act.

30    As noted by the primary judge at [24], the appellants contended that, by virtue of Sireb seeking approval of the nomination under s 140GB of the Migration Act, the first appellant thereby became “sponsored” by Sireb, and this status remained even though Sireb’s application for approval of the nomination was refused and Sireb did not seek review of that decision.

31    Although the Tribunal had relied on Lee, the primary judge did not consider Lee but instead considered the later decision of the Full Court in Ahmad. The primary judge set out extracts from Ahmad, including [113] of the Full Court’s judgment where the following observations were made:

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.

32    The primary judge reached the following conclusion based on a consideration of Ahmad:

Upon that consideration the Court finds that s 338(2)(d)(i) is not satisfied on the facts of this case where, at the time of the application for review of the visa decision, the Applicant had previously been identified in a nomination, the nomination decision was adverse, and an application for review of that decision had not been made by the Applicant.

(Footnote omitted.)

33    The primary judge therefore concluded that the application should be dismissed.

The appeal to this Court

34    The appellants appeal to this Court from the judgment of the Federal Circuit Court. The appellants’ notice of appeal contains a single ground of appeal:

The Learned Judge erred in finding that the Appellant was not “sponsored by an approved sponsor” within the meaning of s.338(2)(d)(i) of the Migration Act 1958 (Cth) (the Act). In particular, her Honour misconstrued ss. 140E, 140GB, 337 and 338(2)(d)(i) of the Act, and reg. 4.02(1AA) of the Migration Regulations 1994 (Cth), when she found that the Appellant – who had been identified in a nomination by an approved sponsor at the time of his application to the Tribunal – was not “sponsored by an approved sponsor” because the nomination had been refused at the time of application to the Tribunal for merits review.

The appellants’ submissions

35    The appellants submit that, in the context of s 338(2)(d)(i), to be “sponsored” by an approved sponsor requires nothing more than that the person be “sponsored”, according to the ordinary English meaning of the word, by an approved sponsor; and that there is nothing in the Migration Act or the Migration Regulations which justifies grafting on to s 338(2)(d)(i) an additional limitation that a person is only “sponsored” if there is an approved nomination in operation.

36    The appellants submit that there are four textual considerations that support their argument:

(a)    First, Parliament has not limited the definition of “sponsored” in either the Act or the Regulations. Section 337 of the Act provides that “sponsored” has the same meaning as in the Regulations. In turn, reg 4.02(1AA) provides a non-exhaustive definition of “sponsored” such that it “includes being identified in a nomination under section 140GB of the Act”. Plainly, the definition does not restrict the ordinary English meaning. If anything, it extends the meaning to the statutory construct arising from s 140GB. Thus, at the very least, “sponsor” includes the ordinary meaning of the word, being “to promise, vouch, or answer for” or to “make himself or herself responsible for another” (Macquarie Concise Australian Dictionary (6th ed, 2013); Australian Concise Oxford Dictionary (5th ed, 2009)). The emphasis is on the person providing the promise or assuming the responsibility, not on a third party’s approval of that promise or responsibility.

(b)    Second, the Migration Act itself recognises that nomination and approval of a nomination are distinct. Nomination is dealt with in s 140GB(1), whereas approval of a nomination is dealt with in s 140GB(2). The creation of separate processes for nomination and approval supports the conclusion that Parliament did not intend to import the concept of approval into the concept of sponsorship. It also finds expression in reg 4.02(1AA), which says that “sponsored includes being identified in a nomination”. The regulation does not say “being identified in an approved nomination”. The distinction between nomination and approval further appears in relation to the integrity provisions in ss 245AQ-245AY. The definition of “sponsorship-related event” in s 245AQ (certain conduct in relation to which is prohibited by ss 245AR-245AS) recognises that “making a nomination under section 140GB” (paragraph (e) of the definition) and “applying under the regulations for approval of the nomination” (paragraph (g) of the definition) are independent concepts. There is no reason to suppose that Parliament intended the distinction between making a nomination and applying for approval of a nomination to be collapsed for s 338(2)(d).

(c)    Third, the choice of the words “identified in a nomination” in reg 4.02(1AA) demonstrate a legislative intention that mere identification is sufficient: the regulation reads “sponsored includes being identified in a nomination”, not “sponsored includes being nominated”, nor “sponsored includes being nominated in an approved nomination”.

(d)    Fourth, the simple form of the verb, “sponsor”, is defined in reg 1.03 as having the meaning given by reg 1.20(1). However, reg 1.20(1) does not apply in this case, by reason of reg 1.20(4)(h). And there is nothing in Pt 2A (Sponsorship applicable to Division 3A of Part 2 of the Act) that defines “sponsor”. In the absence of any explicit definition, this gives further support for the conclusion that “sponsor” is to be given its plain English meaning.

37    The appellants also submit that: statutory provisions that are ‘remedial’ are to be given a beneficial interpretation consistent with advancing the remedy they contain, and in favour of those who may stand to benefit; such a provision “should be construed so as to give the fullest relief which the fair meaning of its language will allow” (see Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384; Zangzinchai v Millanta (1994) 53 FCR 35 at 42-44); a provision dealing with jurisdiction is plainly a remedial provision; the High Court in Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421 said that it is “quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”; and the principle of beneficial interpretation thus supports the conclusion that the Tribunal does have jurisdiction to hear the matter.

38    The appellants rely on the legislative history of the relevant provisions, making the following submissions:

(a)    The evolution of the skilled visa provisions in the Migration Act provides a strong indication against grafting the concept of approval onto sponsorship. In Ahmad, the Full Court reviewed the history of the sponsorship provisions. The Court noted that s 338(2)(d) was introduced by the Migration Legislation Amendment (Sponsorship Measures) Act 2003 (Cth). The system used to be that a person could become an “approved sponsor” if that person both nominated the non-citizen and that nomination was approved by the Minister. The language of “sponsored by an approved sponsor” in s 338(2)(d) reflects the way the system was when s 338(2)(d) was introduced.

(b)    Later, the Act was changed to introduce separate Ministerial approval processes for sponsorship and nomination (s 140E for sponsorships, and s 140GB for nominations). The Full Court in Ahmad referred to the explanatory memorandum to the Migration Legislation Amendment (Worker Protection) Bill 2008 (Cth) which led to the introduction of s 140GB, and which stated (Ahmad at [46]):

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”…

(Emphasis added.)

(c)    Thus, under the Act as it stands today, nomination is no longer part of the process of the sponsor being approved. It used to be the case that to be “sponsored by an approved sponsor” (in terms of s 338(2)(d)(i)), the non-citizen needed to have an “approved sponsor”, the existence of which could only come about by a nomination and the Minister’s approval. However, that nexus between approved sponsorship and nomination was broken by the introduction of s 140GB such that a person may be an “approved sponsor” even if that person has not made a nomination, or had one approved.

(d)    The task of interpreting and applying s 338(2)(d)(i) should recognise that the nexus between sponsorship and nomination that applied in the Act in 2003 when s 338(2)(d) was introduced was broken by subsequent amending legislation.

(e)    There is a second point arising from the changes to the Act’s sponsorship provisions. Under the Act as it is today, an approved sponsor can nominate an occupation in the abstract, rather than a particular individual: s 140GB(1)(b).

(f)    If the sponsor nominated an occupation instead of an individual, the individual would not be “identified” in the nomination. Thus, if “sponsored” is to be read as if it requires “identification in an approved nomination” (implicitly, how the primary judge concluded reg 4.02(1AA) should be read), then that individual could never attract jurisdiction under s 338(2)(d)(i), even if the nomination of the occupation had been approved. This would make s 338(2)(d)(i) otiose, which cannot have been Parliament’s intention, and is another powerful reason not to import the notion of approval into the meaning of “sponsored”.

39    The appellants challenge the correctness of the obiter statement at [113] of Ahmad (set out in [31] above). The appellants submit that: it is not apparent from the reasons of the Full Court why it reached the views expressed in [113], which suggest that an undecided nomination is sufficient to invoke jurisdiction, but that an adverse nomination not being challenged is not sufficient; and the passage appears to be inconsistent with Kandel v Minister for Immigration & Anor [2015] FCCA 2013, in which the Federal Circuit Court, although not explicitly rejecting the Minister’s submissions, did not adopt the position that s 338(2)(d)(i) is satisfied only if an application for nomination was approved, or at least pending, at the time the visa refusal review application was lodged. Further, the appellants submit that: the obiter statement is inconsistent with the reasons given by the Full Court in Ahmad for rejecting [44]-[45] of Lee (see Ahmad at [111]); if Lee was rejected on the basis that there is no requirement for the approval of the nomination of an occupation, then it naturally follows that there is no requirement for the approval of the nomination of any particular individual; there is no warrant, whether from the text of the Migration Act or the legislative history, as was said in Ahmad at [102], to construe s 338(2)(d)(i) as if it contained unexpressed limiting words.

Consideration

40    The issue to be determined is whether, in circumstances where an approved sponsor has nominated an occupation in relation to a visa applicant and the nomination has been refused, the visa applicant is “sponsored by an approved sponsor” for the purposes of s 338(2)(d)(i) of the Migration Act.

41    The issue described above was left open by the Full Court in Ahmad at [113]. The Full Court expressed the obiter view in that paragraph that, in such circumstances, the visa applicant would not be “sponsored by an approved sponsor” for the purposes of s 338(2)(d)(i).

42    Although the task of statutory construction begins and ends with the text, it is undertaken with regard to context and purpose: see, eg, Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 at [57], [61]-[62] per French CJ, Hayne, Kiefel and Nettle JJ, at [77] per Gageler J; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71] per McHugh, Gummow, Kirby and Hayne JJ.

43    It is important to have regard to the legislative history of the relevant provisions and the scheme of Div 3A of Pt 2 of the Migration Act. As detailed in Ahmad, the Division was introduced in 2003 and there were important amendments made in 2008: see Ahmad at [27]-[56]. As originally introduced, the relevant provisions combined the process of approving a sponsor and approving a nomination. In that context, s 338(2)(d) (the terms of which were the same as set out in [25] above) was designed to prevent abuse. The concern was that visa applicants may try to extend their stay in Australia in circumstances where they had no prospect of satisfying the relevant criteria because they did not have an approved sponsor: see Ahmad at [33].

44    Subsequently, in 2008, the provisions were amended such that there were henceforth separate processes for approving a sponsor and approving a nomination. Following the 2008 amendments, the process for approval of a sponsor was dealt with in s 140E and the process for approval of a nomination was dealt with in s 140GB.

45    Section 140GB is structured more broadly than the earlier provision in that it enables nomination of either: (a) an applicant or proposed applicant for a visa of a prescribed kind (in relation to a proposed occupation, program or activity); or (b) a proposed occupation, program or activity. In the latter case, it seems clear that the nomination does not need to specify a particular individual: see Ahmad at [47].

46    As detailed in Ahmad, changes to the Regulations were made in 2009: see Ahmad at [49]-[56]. These amendments came into force at the same time as the 2008 amendments to the Act (on 14 September 2009). Relevantly, the changes to the Regulations included the introduction of reg 4.02(1AA) which provides that “sponsored includes being identified in a nomination under section 140GB of the Act”. This definition is applicable for the purposes of the relevant provisions of the Act by virtue of s 337.

47    In the context of the 2008 amendments, it may be inferred that the reason for introducing the new extended definition of “sponsored” in reg 4.02(1AA) related to the introduction of the new s 140GB. As explained above, that section provided a separate process for approval of a nomination and provided for nomination of: a visa applicant (in relation to a proposed occupation, program or activity); or a proposed occupation, program or activity. It may be that the new definition was designed to ensure that, where a criterion for a visa is expressed in terms of the visa applicant having been “identified in a nomination”, this is treated as a criterion that falls within the opening lines of s 338(2)(d), which refer to it being a criterion for the grant of a visa that the visa applicant is “sponsored by an approved sponsor”. For example, the criteria for a Subclass 457 visa include that “a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act” (see cl 457.223(4) in Sch 2 to the Migration Regulations). This requires not only approval of an occupation, but approval of the occupation in relation to the applicant. This would seem to be the type of criterion that is covered by the opening lines of s 338(2)(d) read with the extended definition of “sponsored” in reg 4.02(1AA).

48    In Ahmad, the Full Court was concerned with the question whether, in circumstances where there has been an adverse decision in respect of a nomination, and review has been sought of the adverse nomination decision, the case falls within sub-paragraph (ii) of s 338(2)(d). That sub-paragraph has the effect that the Tribunal will have jurisdiction in the relevant class of cases if “an application for review of a decision not to approve the sponsor has been made, but … review of the sponsorship decision is pending”. The Full Court held that sub-paragraph (ii) covers cases where there has been an adverse decision with respect to a nomination under s 140GB but review of the adverse nomination decision is pending. Fundamental to that conclusion was the legislative history of the relevant provisions which indicated that, as originally conceived, approval of sponsorship encapsulated approval of a nomination. Although the 2008 amendments had provided for two separate processes, the reference to “an application for review of a decision not to approve the sponsor” in s 338(2)(d)(ii) was found still to encapsulate an application for review of an adverse nomination decision.

49    The current issue is to be approached in light of the legislative history and the scheme of the Div 3A of Pt 2 of the Migration Act, and consistently with the construction of s 338(2)(d)(ii) adopted by the Full Court in Ahmad (which was not challenged). Although the appellants challenged the correctness of the obiter statements in [113] of Ahmad (which related to s 338(2)(d)(i)), they did not challenge the principal holding in Ahmad (which related to s 338(2)(d)(ii)).

50    The starting point is the opening lines of s 338(2)(d). These refer to it being a criterion for the grant of a visa that the non-citizen is “sponsored by an approved sponsor”. Reading into these lines the definition of “sponsored” in reg 4.02(1AA), the opening lines of s 338(2)(d) include a case where it is a criterion for the grant of a visa that the non-citizen is identified in a nomination under s 140GB made by an approved sponsor. In such situations, the opening lines of s 338(2)(d) are relevantly satisfied and thus the paragraph is engaged.

51    The wording of sub-paragraph (i) of s 338(2)(d) mirrors in relevant respects that of the opening lines of paragraph (d). Both use the words “is sponsored by an approved sponsor”. Once it is accepted that the opening lines of s 338(2)(d) include (by virtue of the definition in reg 4.02(1AA)) a case where it is a criterion for the grant of a visa that the non-citizen is identified in a nomination under s 140GB made by an approved sponsor, then it follows that it is (at least generally) sufficient for the purposes of sub-paragraph (i) of s 338(2)(d) that the non-citizen is identified in a nomination under s 140GB made by an approved sponsor (whether or not the nomination has been approved). Thus, in a case where a nomination has not yet been dealt with, the non-citizen may be able to satisfy the requirements of s 338(2)(d)(i).

52    The question that arises in the present case is whether the requirements of sub-paragraph (i) of s 338(2)(d) are satisfied in circumstances where there has been an adverse decision in respect of a nomination. Adopting a literal approach, it would seem open to conclude that, in such a case, the requirements of the sub-paragraph can be satisfied, on the basis that the non-citizen is (notwithstanding the adverse decision) still “identified in a nomination under section 140GB of the Act”. There are, however, problems with this construction.

53    First, it seems to be contrary to the purpose of s 338(2)(d) (as referred to above). If a nomination has been decided adversely then, subject to successful review of the adverse nomination decision, in the ordinary course of things the visa applicant will be unable to satisfy the visa criteria. In these circumstances, the case would seem to fall into the category of abuse that the provision was designed to address: see Ahmad at [33]. If the adverse nomination decision is subject to a pending review, the case is covered by sub-paragraph (ii) of s 338(2)(d), as interpreted by the Full Court in Ahmad. But where (as in the present case) review of the adverse nomination decision has not been sought, in the ordinary course of things the visa applicant will be unable to satisfy the criteria.

54    It is true that, as submitted by the appellants, there is the possibility that a new nomination of an occupation in relation to the visa applicant may be made. Accepting that to be a possibility, the legislation nevertheless proceeds on the basis that the approved sponsor can seek merits review of an adverse nomination decision and s 338(2)(d)(ii) (as interpreted in Ahmad) has the effect that the Tribunal has jurisdiction in circumstances where an application for review of an adverse nomination decision is pending. In circumstances where an approved sponsor decides not to seek merits review of an adverse nomination decision, the statutory purpose referred to above is served by the Tribunal not having jurisdiction. The practical reality is that, in the absence of an approved nomination, the visa applicant is unable to satisfy the criteria for the relevant visa. Further, there would seem to be a tension between, on the one hand, the appellants relying on the possibility of a new nomination being made (in order to seek to show practical utility in the Tribunal having jurisdiction to review the visa refusal) and, on the other, the appellants’ reliance on the (refused) nomination to seek to satisfy the requirement of being “sponsored by an approved sponsor”.

55    Secondly, and relatedly, the appellants’ construction seems to be incongruent with the statutory scheme, including the interpretation of s 338(2)(d)(ii) adopted by the Full Court in Ahmad. In circumstances where a nomination has been refused, and there is a pending review of that decision, the Tribunal has jurisdiction under s 338(2)(d)(ii). It would be incongruent with that statutory scheme to read sub-paragraph (i) of s 338(2)(d) as covering cases where there has been an adverse nomination decision (whether or not review of that decision has been sought). This would not sit easily with a provision, in sub-paragraph (ii), which provides for a case where review of an adverse nomination decision has been sought and is pending.

56    Although the comments at [113] of Ahmad were obiter, the logical extension of the principal holding in Ahmad (regarding s 338(2)(d)(ii)) is that s 338(2)(d)(i) does not cover a case where a nomination has been refused. As noted above, that principal holding was not challenged in this appeal.

57    The appellants submit that the relevant provisions are remedial legislation and accordingly the provisions should be construed beneficially. However, we consider the contextual considerations relating to the purpose of the provisions and the structure of the scheme to provide a more persuasive indication of the legislative intent.

58    It was emphasised in oral submissions on behalf of the appellants that they should have the opportunity to test the merits of the adverse visa decision. But, absent an approved nomination, the appellants would have been unable to satisfy the criteria for the visa. Unlike Ahmad, where the approved sponsor had sought review of the adverse nomination decision and that review was pending (and hence, it was held, the Tribunal had jurisdiction under s 338(2)(d)(ii)), in the present case there was no pending application to review the adverse nomination decision.

59    For these reasons, we consider the preferable construction to be that the words “sponsored by an approved sponsor” in s 338(2)(d)(i) do not cover a situation where a nomination under s 140GB has been refused. Therefore, in the circumstances of the present case, the Tribunal did not have jurisdiction.

Conclusion

60    It follows from the above that we would dismiss the appeal. There is no apparent reason why costs should not follow the event. Accordingly, we would also order that the appellants pay the Minister’s costs of the appeal.

Associate:

Dated:    23 May 2017