FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Islam [2012] FCA 195

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made on 13 December 2011 by the Federal Magistrates Court of Australia be set aside and in lieu thereof it be ordered that the application to that Court be dismissed, with each party to bear their own costs.

3.    Each party to the appeal is to bear their own costs.

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

REASONS FOR JUDGMENT

Introduction

1    This is an appeal from orders made on 13 December 2011 by the Federal Magistrates Court.

2    By those orders the decision of the Migration Review Tribunal (the Tribunal) made on 13 January 2011 was quashed and that Tribunal was required to determine according to law the application for review of the decision of the delegate of the Minister for Immigration and Citizenship (the Minister) made on 2 June 2010.

3    The Minister appeals from the judgment on the ground that her Honour, Barnes FM, erred in holding that the Tribunal had jurisdiction to determine the application made to it by Mrs Shama Islam, the first respondent.

4    The particulars of the ground of appeal are as follows:

    a)    Her Honour erred in finding that a decision to refuse a Subclass 457 Business (Long Stay) Visa under the labour agreement stream is not a decision where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor. By reason of Regulation 4.02(1AA) of the Migration Regulations 1994 (the Regulations), cl. 457.223(2) of Schedule 2 of the Regulations is a criterion that the visa applicant is ‘sponsored’ as that term is understood within the meaning of s.338(2)(d) of the Migration Act 1958 (the Act).

    b)    Accordingly, her Honour ought to have found that s.338(2)(d) of the Act applied and that the Tribunal was correct to find that it did not have jurisdiction to review a decision of a delegate of the Appellant made on 16 June 2010 to refuse to grant the second and third (sic) Respondents Temporary Business Entry (Class UC) visas.

The reference to "the second and third Respondents" is to the first and second respondents to this appeal.

The facts

5    The facts found by the Tribunal were as follows.

6    The first and second respondents, Mrs and Mr Islam, applied to the Department of Immigration and Citizenship for Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (the Act) on 10 November 2009.

7    These visa applications were lodged on the basis of Mrs Islam being sponsored under a labour agreement by the sponsoring employer, Woden Community Service Inc. Mr Islam applied as a member of his wife's family unit.

8    The delegate decided to refuse to grant visas to Mrs and Mr Islam on 2 June 2010.

9    Mrs and Mr Islam applied to the Tribunal on 16 June 2010 for review of the delegate's decisions.

10    The Tribunal found that Mrs and Mr Islam were seeking review of decisions to refuse to grant subclass 457 visas.

11    The Tribunal said that having regard to the visa application form, it was satisfied that Mrs Islam sought the visa in relation to an occupation which was the subject of a labour agreement. In the circumstances, the Tribunal said, it was a primary criterion for the visa that she was "sponsored" by an "approved sponsor".

12    The Tribunal also found that on 26 January 2010, a decision was taken by the Department to refuse the application for a labour agreement approval, which was lodged by the proposed sponsor. On 8 February 2010, the proposed sponsor commenced negotiations for a labour agreement which was refused by the Department on 2 June 2010. As Mrs Islam's proposed sponsor was not a party to the labour agreement, the visa applications lodged by Mrs and Mr Islam were unable to be assessed.

13    The Tribunal found that the requirements of ss 338(2)(a), (b) and (c) of the Act were met but that at the time the application to review the decision to refuse to grant the visa was made, Mrs Islam was not "sponsored" by an "approved sponsor" and that no review of a decision not to approve the sponsor was pending. Accordingly, the Tribunal said, the requirements of s 338(2)(d) were not met.

The legislation

14    Section 338 of the Act relevantly 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.

…

It will be noted that under s 338(2) a decision is an MRT-reviewable decision only if each of the paragraphs is satisfied. As I have said, the Tribunal found that the requirements of ss 338(2)(a), (b) and (c) of the Act were met.

15    It was common ground that reg. 4.02(1A)(k) of the Migration Regulations 1994 (the Regulations) provided that for s 338(2)(d) of the Act a subclass 457 (Business (Long Stay)) visa was prescribed for the purposes of s 338(2)(d).

16    Thus the question for present purposes is whether the opening words of s 338(2)(d) apply, that is whether it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor. Mrs and Mr Islam contend that it did not apply so that it did not matter that s 338(2)(d)(i) or (ii) was not satisfied.

17    Clause 457.22 of Schedule 2 to the Regulations relevantly provided:

457.22 Criteria to be satisfied at time of decision

457.221    …

457.221A    …

457.223    (1)    The applicant meets the requirements of subclause (2) . . .

Labour agreements

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

(a)    the occupation specified in the application is the subject of a labour agreement; and

(b)    either:

(i)     . . .; or

(ii)     a nomination of an occupation in relation to the applicant:

(A)     has been approved under section 140GB of the Act; and

(B)     has not ceased to have effect under regulation 2.75; and

Note The definition of occupation in clause 457.111 includes the activity mentioned in subparagraph (i).

(c)    the applicant is nominated by a party to the labour agreement; and

(d)    . . . ; and

(e)    . . . ; and

(f)     . . . .

18    Section 337 provided that in Part 5 "sponsored" has the same meaning as in the regulations. Section 338 is within Part 5.

19    Regulation 4.01 provided that expressions used in Part 4, other than "nominated" and "sponsored", have the same respective meanings as in Part 5 of the Act.

20    Importantly, reg 4.02(1AA) provided:

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

21    Section 140GB was in Division 3A Part 2 of the Act. By s 140A, also in Division 3A Part 2, it was provided that the Division applied to visas of a particular kind. By reg 2.56, Division 3A Part 2 applied to 13 specified kinds of visa including, by reg 2.56(k) a subclass 457 (Business (Long Stay)) visa.

22    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 (sic) 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.

23    The prescribed criteria under s 140GB(2) for a subclass 457 (Business (Long Stay) visa included reg 2.72, which relevantly provided:

2.72     Criteria for approval of nomination — Subclass 457 (Business (Long Stay)) visa

(1)     This regulation applies to a person who is:

(a)     a standard business sponsor; or

(b)     a party to a work agreement (other than a Minister);

who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Business (Long Stay)) visa.

(2)     For subsection 140GB(2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

(3)     The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

(4)     The Minister is satisfied that the person is:

(a)     a standard business sponsor; or

(b)     a party to a work agreement (other than a Minister).

(5)     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.

24    Section 5(1) of the Act defined "approved sponsor" to mean:

approved sponsor means:

(a)    a person:

(i)    who has been approved by the Minister under section 140E in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and

(ii)    whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or

(b)    a person (other than a Minister) who is a party to a work agreement.

Note: A partnership or an unincorporated association may be an approved sponsor: see subsections 140ZB(1) and 140ZE(1) respectively.

25    In s 5 of the Act "work agreement" was defined to mean "an agreement that satisfies the requirements prescribed by the regulations for the purposes of this definition". Regulation 2.76 provided, relevantly, that for the definition of "work agreement" in s 5(1) of the Act a work agreement must meet the requirements prescribed in subreg (2), which stated:

2.76(2) A work agreement:

(a)     must be between:

(i)     the Commonwealth, as represented by the Minister, or by the Minister and 1 or more other Ministers; and

(ii)     a person, an unincorporated association or a partnership in Australia; and

(b)     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 (Business (Long Stay)) visa; and

(c)     must be in effect; and

(d)     must not be an IASS agreement.

26    Regulation 1.03 contained a definition of “labour agreement” as meaning:

a formal agreement entered into between:

(a)    the Minister, or the Employment Minister; and

(b)    a person or organisation in Australia;

under which an employer is authorised to recruit persons to be employed by that employer in Australia.

The decision of the Tribunal

27    The Tribunal found that the delegate's decision in the circumstances was not an MRT-reviewable decision under s 338(2).

28    The Tribunal was of the view that the requirements of s 338(2)(d) applied to an onshore primary applicant who had applied for a subclass 457 visa under the "labour agreement" stream, that is, cl 457.223(2). The Tribunal found that it was a criterion for the grant of the visa that the non-citizen was sponsored by an approved sponsor on two bases. First, the labour agreement referred to in cl 457.223(2)(c) was a "work agreement" and the party to the labour agreement was therefore an approved sponsor. Second, it was a criterion for the grant that a nomination of an occupation under this stream, in relation to the applicant, had been approved under s 140GB (cl 457.223(2)(b)(ii)). Approval under s 140GB was given in relation to a nomination by an "approved sponsor" and the definition of "approved sponsor" included a non-Ministerial party to a work agreement (s 5(1) of the Act). As the meaning of “sponsored” included being identified in a nomination under s 140GB of the Act, the provisions of s 338(2)(d) would apply in that circumstance. Accordingly, the Tribunal found that the delegate's decision of 2 June 2010 was not an MRT-reviewable decision under s 338(2). The Tribunal concluded that as it did not have an application properly made under s 347 for review of an MRT-reviewable decision, as required by s 348, it did not have jurisdiction in the matter.

The decision of the Federal Magistrates Court

29    In the Federal Magistrates Court, her Honour said there was nothing in the language of cl 457.223(2) to suggest that the visa applicant must be sponsored by an approved sponsor. All that was required was that there be "a nomination of an occupation in relation to the applicant…that has been approved under section 140GB of the Act". It was also necessary for the applicant to be "nominated by a party to the labour agreement", but this did not of itself make it a criterion for a subclass 457 visa that the applicant be "sponsored" by the party to the labour agreement. Although the definition of "approved sponsor" included a party to a work agreement, such a party did not require approval as a sponsor under s 140E. The language of reg 4.02(1AA) was clear. Applying ordinary principles of construction there could not be said to be a doubt that Parliament’s intention was only to extend the concept of "sponsored" for the purposes of s 337 of the Act and hence for s 338(2)(d) to visas for which it was a criterion that a non-citizen visa applicant was "identified in a nomination under s 140GB" of the Act. There was no such criterion in subcl. 457.223(2).

Analysis

30    The question which presently arises under s 338(2)(d) is whether it was a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor. The appellant Minister did not submit that that question could be answered in his favour in the absence of the amendment made by the introduction of reg 4.02 (1AA). It was also common ground that prior to the introduction of reg 4.02 (1AA) it was not a criterion for the grant of the visa for which Mrs Islam applied that the non-citizen was sponsored by an approved sponsor. That is, prior to the introduction of reg 4.02 (1AA) a person in the position of Mrs Islam would have had a right to merits review by the Tribunal.

31    Applying reg 4.02 (1AA), which stated that "sponsored" included being identified in a nomination under s 140GB of the Act, the question under the opening words of s 338(2)(d) for present purposes is 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).

32    The provisions of cl 457.223(2) relied on by the appellant Minister were cl 457.223(2)(b)(ii) "a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act" and cl 457.223(2)(c) "the applicant is nominated by a party to the labour agreement". Each was put as an alternative to the other. I consider each in turn.

33    In each case the question is one of statutory construction.

34    In the submissions of the first and second respondents before me, importance was placed on the changes made to the sponsorship provisions, with effect from 14 September 2009, in Division 3A of Part 2 of the Migration Act. I have been unable to see how those changes assist in determining the present questions. I accept that there is no sponsorship approval process, in terms, for a party to a labour agreement so that s 140E is not relevant, but that does not mean that an approval by the Minister under s 140GB stands outside Division 3A: in my view sponsorship obligations are imposed on an approved sponsor by the provisions of Subdivision C of Division 3A whether that person is an approved sponsor by virtue of par (a) or by virtue of par (b) of the definition of "approved sponsor", which I have set out above.

35    I note three further matters. First, the parties before me accepted that s 338(2)(d)(ii) had no application in the present circumstances in the sense that an applicant for a visa under cl 457.223(2) could not apply for review of the decision not to approve the sponsor. This is because there was no separate requirement to approve a sponsor where a "labour agreement" was concerned.

36    The second matter is that the first and second respondents’ position as to the utility of the present proceedings was that, if the opening words of s 338(2)(d) did not apply to prevent the decision being an MRT-reviewable decision, then they would hope that the criteria in cl 457.223(2) would be satisfied, that is, that the labour agreement had been approved, by the time of the Tribunal's decision.

37    The third matter is that, by the amendments, certain clauses in Schedule 2 were amended so as to contain the language "the applicant is identified in a nomination of an occupation, a program or an activity approved under section 140GB of the Act", being the language of reg 4.02(1AA). Clause 457.223(2) was not amended in those terms but was amended to include the language "a nomination of an occupation in relation to the applicant…has been approved under section 140GB…" I do not accept the submission that merely because cl 457.223(2) did not use the very language of reg 4.02(1AA) it should be concluded that the opening words of s 338(2)(d), read with reg 4.02(1AA), were not engaged. I do however accept that it is necessary to look with circumspection at whether the opening words of s 338(2)(d), read with reg 4.02(1AA), were engaged, no reason being proffered why the language of reg 4.02(1AA) could not have been used in cl 457.223(2).

38    The language used in s 338(d) is “criterion”. A criterion is a standard or principle against which, relevantly, an application for the grant of a visa is to be tested: see, with reference to s 31(3) of the Migration Act the definitions referred to by the Full Court in Pillay v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 368 at [32]. In making the assessment required in the present case, it must be judged whether either of the two provisions of cl 457.223(2) relied on by the appellant Minister objectively answers the opening words of s 338(2)(d) when read with reg 4.02(1AA). Because the opening words of s 338(2)(d) ask whether what is thereafter set out is a criterion for the grant of the visa, one must ask whether cl 457.223(2) meets the opening words of s 338(2)(d) at the level of criterion. The question is the nature of the criterion: compare Herald-Sun T.V. Pty Ltd v Australian Broadcasting Tribunal (1985) 156 CLR 1 at 4. It is not in my opinion an appropriate form of reasoning to ask whether, on the facts, an applicant’s circumstances answer one of the two relevant criteria in cl 457.223(2) and, if they do, to conclude that that fact answers the opening words of s 338(2)(d) when read with reg 4.02(1AA).

Clause 457.223(2)(b)(ii)

39    In my opinion, the language of cl 457.223(2)(b)(ii), "a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act" read with s 140GB and reg 2.72, has the result that the non-citizen was required to be identified in a nomination under s 140GB.

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) Amendment Regulations 2009 (No. 1) 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).

43    I conclude that, at the level of identifying whether it is a criterion for the grant of the visa, the criterion in cl 457.223(2)(b)(ii) does answer 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.

Clause 457.223(2)(c)

44    In the alternative I consider the cl 457.223(2)(c) criterion: "the applicant is nominated by a party to the labour agreement". Again the question for s 338(2)(d) purposes is whether it was a criterion for the grant of the visa that the non-citizen answered the description of “being identified in a nomination under s 140GB” (by an approved sponsor).

45    I note that this criterion was not amended by the amendments which came into effect on 14 September 2009. Thus it preceded the introduction of reg 4.02 (1AA).

46    "The labour agreement" is a reference back to cl 457.223(2)(a): the occupation specified in the application is the subject of a labour agreement, that is, a formal agreement entered into between, broadly, the Commonwealth Minister and an organisation in Australia under which an employer is authorised to recruit persons to be employed by that employer in Australia. How, if at all, does this intersect with s 140GB?

47    First, 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. Regulation 2.56(k) prescribes the subclass 457 (Business Long Stay) visa for s 140A, Division 3A of Part 2 of the Act.

48    Second, an "approved sponsor" was defined to include a person (other than a Minister) who is a party to a work agreement.

49    Third, 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 (Business Long Stay) visa.

50    In my opinion the cl 457.223(2)(c) criterion, "the applicant is nominated by a party to the labour agreement", at the level of a criterion does 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. 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).

51    It may be that as a matter of fact the applicant would be expected to be nominated by a party to a labour agreement which as a fact was a work agreement and thus by an approved sponsor. But in my opinion that expectation does not become a criterion even though here the decision of the delegate was that absent a labour agreement Mrs Islam did not meet cl 457.223(2)(c).

52    A party to a labour agreement will not necessarily be an “approved sponsor”. Contrary to the submissions of the appellant Minister, it is not enough to say that a "labour agreement" which deals with the occupation specified in the application will at least normally be one that authorises the recruitment of a person as a holder of a subclass 457 visa and on that basis the "labour agreement" will constitute a "work agreement" and thus the employer who is a party to it will be an "approved sponsor". In my opinion this is to confuse whether or not on the facts an applicant may satisfy a criterion in the Regulations with whether or not that criterion answers the words of s 338(2)(d) read with reg 4.02(1AA).

Conclusion

53    My conclusion is that, by virtue of cl 457.223(2)(b)(ii), it was a criterion for the grant of the visa that the non-citizen was sponsored by an approved sponsor.

54    I have construed the intersection of s 338(2)(d) and the criteria in cl 457.223(2) with particular care to discern their meaning and operation since they affect access to the Tribunal. However having so construed those provisions I have no doubt as to the correct construction and I see no occasion for the application of the principles discussed by Finn J in Buck v Comcare (1996) 66 FCR 359 at 364-365: see PPHF v Director-General of Security (2011) 193 FCR 436 at [38].

55    The appeal should be allowed and the orders of the Federal Magistrate set aside. In relation to costs, I have rejected one ground relied on by the appellant Minister and upheld the other although not on the basis of the Minister’s submissions. In the circumstances each party should bear their own costs of the appeal and of the proceedings before the Federal Magistrates Court.

Associate:

Dated:    9 March 2012