FEDERAL COURT OF AUSTRALIA

Mabogodage v Minister for Home Affairs [2018] FCA 1754

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be refused.

2.    The applicants pay the respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This is an application seeking leave to appeal from a judgment of the Federal Circuit Court of Australia (FCCA) dismissing an application on a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). The judgment is reported as Mabogodage v Minister for Immigration and Border Protection [2018] FCCA 1031. The FCCA dismissed the applicants’ application for judicial review of a decision dated 8 March 2017 of the Administrative Appeals Tribunal (AAT). The AAT affirmed a decision dated 18 June 2015 by a delegate of the Minister for Immigration and Border Protection.

Summary of background matters

2    The first and second applicants are husband and wife, and the third applicant is their daughter. The applicants are citizens of Sri Lanka. The first applicant is currently 32 years old, the second applicant is currently 34 years old and the third applicant is currently 7 years old.

3    The first applicant is a cricket player and first arrived in Australia in 2011. Since 2011, he has held multiple Temporary Work (Long Stay Activity) visas. The first applicant last arrived in Australia on 26 August 2013.

4    On 23 April 2014, the applicants applied for Temporary Work (Long Stay Activity) (Class GB, Subclass 401) visas (the Visas) with the first applicant being the primary visa applicant. In the visa application, the first applicant indicated that he was sponsored by Donvale Cricket Club (the sponsor) and stated that the type of activity he will be undertaking in Australia is playing cricket for the Club as a first class player.

5    The nomination of the sponsor was approved on 1 August 2014, and again on 18 June 2015.

6    Between 8 October 2014 and 13 March 2015, the Department of Immigration and Border Protection (Department) conducted investigations to ascertain whether the first applicant was working otherwise than as permitted by his visa.

7    On 13 March 2015, Australia Post confirmed that the first applicant commenced work as a mail contractor on 15 June 2013. The Department invited the applicants to comment on adverse information, specifically that the Department had received information that the first applicant was employed by Australia Post as a contractor since June 2013.

8    On 18 May 2015, the applicants’ migration agent (who was also a solicitor), Malintha De Mel (first representative), provided written submissions in response to the Department’s invitation to comment. Those submissions acknowledged that the first applicant misconstrued his work limitation condition, which was a condition of his bridging visa, but submitted that the delegate should exercise their discretion not to cancel the bridging visa.

9    On 22 May 2015, the applicants provided the Department with further documents in response to the Department’s invitation to comment. In particular, the applicants provided evidence that the sponsor had lodged a further application for a nomination on 18 May 2015. As stated above, that nomination was approved on 18 June 2015.

10    Also on 18 June 2015, the applicants were notified of the delegate’s decision to refuse to grant the Visas. The criteria for a Subclass 401 visa are set out in Part 401 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate was not satisfied that the first applicant, as the primary visa applicant, met the relevant criterion being cl 401.214 of Sch 2 to the Regulations, which provides:

401.214

The applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted, having regard to:

(a)     whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

(b)     whether the applicant intends to comply with the conditions to which the Subclass 401 visa would be subject; and

(c)     any other relevant matter.

11    As the delegate found that the first applicant did not meet the criteria for the Visa, the second and third applicants were also refused a Visa on the basis that they did not satisfy cl 401.311 of Sch 2 to the Regulations (which required them to be members of the family unit of a person who holds a visa of the relevant class).

12    On 8 July 2015, the applicants applied to the AAT for a review of the delegate’s decision.

13    By a letter dated 5 January 2017, the AAT invited the applicants to comment on or respond to the following information:

•    The Tribunal has had regard to information contained on Departmental file records indicating that you are not presently the subject of an approved nomination. In particular, records contained on the Department’s Integrated Client Service Environment (ICSE) database indicate that a nomination in respect of you was granted on 1 August 2014.

•    This nomination therefore ceased by operation on law on 1 August 2015.

This information is relevant to the Tribunal’s review because in cl.401.212 requires that at time of decision you be the subject of an approved nomination by an approved temporary work sponsor.

14    The AAT invited the applicants to provide their comments in writing by 19 January 2017.

15    On 18 January 2017, Mr Gamlath of KGS Consulting Group, who was appointed as the applicants’ migration agent (second representative), emailed the AAT requesting an extension of 28 days to respond to the AAT’s invitation to comment. The AAT granted the extension.

16    By an email dated 19 January 2017, the first representative responded to the AAT’s invitation to comment. In that email, the first representative provided the AAT with evidence that the sponsor’s application for a nomination of the first applicant was approved on 1 August 2014 and 18 June 2015. The approval period for the latter approval was stated to be as follows:

Period of Approval

This nomination approval ceases on the earliest of the following:

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

•    12 months after the day on which the nomination is approved; and

•    3 months after the day on which the person’s approval as a sponsor ceases; and

•    If the person’s approval as a sponsor is cancelled under subsection 140M(l) of the Act; the day on which the persons approval as a sponsor is cancelled; and

•    the day on which the applicant, or the proposed applicant, who is identified in relation to the nominated occupation, program or activity is granted a visa on the basis of the nomination.

The applicants did not dispute that this approval, which the first applicant described as “my previous nomination approval”, had expired by the time of the AAT hearing.

17    On 2 February 2017, the second representative emailed the AAT and provided evidence that, on 18 January 2017, the first applicant lodged an application for a Temporary Activity (Subclass 408) visa and that the sponsor had lodged a sponsorship nomination in respect of that visa application. The second representative stated that “the department has not finalise [sic] the [sponsor’s nomination] application yet” and requested “28 extension [sic] until decision of the nomination application”.

18    On 6 February 2017, the AAT invited the applicants to attend a hearing on 8 March 2017.

19    On 14 February 2017, the AAT responded to the second representative’s email as follows:

I am writing in relation to an application for review by the Migration and Refugee Division of the AAT and your recent email dated 2 February 2017 and attachment.

Your correspondence advises that a new nomination has been lodged and your requesting an extension of time.

The Presiding Member notes that the new nomination lodged is for a 408 visa and the decision under review is the refusal of a 401 visa. They are therefore not related and the hearing scheduled for 8 March 2017 will proceed as advised. The only issue at that hearing will be whether the applicant is the subject of a valid 401 nomination.

20    On 8 March 2017, the first applicant attended the AAT hearing, assisted by an interpreter and without his migration agent. At the hearing, the first applicant provided the AAT with written submissions, in which he submitted that he did not intend to stay in Australia for a long period, but that his cricket club wanted him to stay longer and provide training during the winter. The first applicant also requested an extension for him to submit a new nomination approval, and provided evidence that he had also applied for a Subclass 408 Visa as the primary applicant and with the second and third applicants included as dependent applicants.

21    By email dated 9 March 2017 sent to the second representative, the AAT notified the applicants of its decision dated 8 March 2017 to affirm the delegate’s decision to refuse to grant the Visas.

22    In its reasons for decision, the AAT stated that while the issue in the primary decision was cl 401.214, a preliminary issue which arose on review by the AAT was whether the first applicant was the subject of a current nomination in accordance with s 401.212. It is desirable to set out the following parts of the AAT’s reasons for decision (footnotes omitted):

18.    At the hearing the Tribunal explained that the 401 visa class closed on 19 November 2016 as documented on the department's website. Therefore the applicant is not able to satisfy an essential requirement of the visa, c1.401.212, which requires him to be identified in a nomination of an occupation or activity approved under s.140GB of the Act, and that the approval of the nomination has not ceased. The Tribunal noted that according to the documentation provided with his 359A response his last 401 nomination creased on 18 June 2016 and the Tribunal accepts this however the fact remains that he is not now the subject of an approved nomination and the visa class has closed. The Tribunal emphasised that this is a time of decision criteria which means he must be the subject of an approved 401 nomination at the time the Tribunal makes its decision.

19.     The applicant said that he played cricket for the Donvale Cricket Club and they requested him to stay on for 2 years. He applied for a 2 year visa and he got a bridging visa in 2015. When he received the information from the Tribunal he talked to the President and they tried to apply for another 401 but could not, so applied for a 408 visa. He also moved lawyers. He is planning to go home on 31 March.

20.    The Tribunal referred to the various documents he had provided at the commencement of the hearing and in particular to the request in his covering letter “to provide extension for me to submit nomination approval”. The Tribunal explained that as the new nomination lodged in respect of him is for a 408 nomination, a decision on that nomination cannot affect the outcome of this review in relation to a 401 visa and, for this reason, the Tribunal will not grant an extension of time. The Tribunal explained that when he applied for this visa Class GB contained only one subclass being the Subclass 401 (Temporary Work (Long Stay Activity) and therefore this was the only visa in respect of which the Tribunal can lawfully make a decision. The Tribunal noted that likewise, a negative decision on this review, would not affect the 408 nomination being considered by the department.

21.     The Tribunal asked the applicant if he understood that because he did not have an approved 401 nomination in respect of him that had not ceased the Tribunal could not make a decision in his favour. He said he did.

22.     On the basis of the available information, the Tribunal is not satisfied that the applicant is identified in a nomination of an occupation or activity approved under s.140GB of the Act and that the approval of the nomination has not ceased.

The proceedings in the FCCA

23    On 6 April 2017, the applicants filed an application in the FCCA seeking judicial review of the AAT’s decision dated 8 March 2017.

24    Pursuant to orders made by consent on 11 October 2017, the matter was listed for a show cause hearing under r 44.11(b) of the FCC Rules. The show cause hearing took place on 11 April 2018 and the applicants were represented at that hearing.

25    The grounds of application were as follows (without alteration):

1.    That the Administrative Appeals Tribunal fell into jurisdictional error when it took into account irrelevant evidence in determining the application for review.

Particulars

(a)     The Administrative Appeals Tribunal fell into jurisdictional error when it took into account the essential requirement of the visa cl.401.212 which required him to be identified in a nomination of an occupation or activity approved under 140GB of the act when the delegate of the Minister for Immigration and Border Protection refused to grant the visa applicants Temporary Work (Long Stay Activity) (Class GB) on the basis that the applicant did not meet cl.401.214 of Schedule 2 of the regulation because he was not satisfied that the applicant genuinely intents a temporary stay in Australia.

(b)     The Administrative Appeals Tribunal fell into jurisdictional error when it relied on the essential requirement of the visa, cl.401.212 nomination of an occupation or activity approved under s. 140GHB of the act when the real issue raised by the delegate was whether the applicant was genuinely intending to stay in Australia.

(c)     The Administrative Appeals Tribunal fell into jurisdictional error when it did not invite the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review, namely the Administrative Appeals Tribunal failed to invite the applicant to give evidence and present arguments on the issue and/or finding by the delegate for the Minister for Immigration and Border Protection that the applicant was not a applicant genuinely intents a temporary stay in Australia.

2.     That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to take into account relevant evidence in determining the application for review.

Particulars

(a)     There was no evidence before the Administrative Appeals Tribunal that the applicant was intends permanent stay in Australia.

(b)     There was no evidence before the Administrative Appeals Tribunal that the applicant or any other person named in the application intends a permanently stay in Australia.

3.     That the Administrative Appeals Tribunal fell into jurisdictional error when it came to the conclusion that the first applicant does not satisfy the primary criteria for grant of Subclass 401 visa.

4.    That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to provide a logical and legal reasoning process as to how it arrived at the conclusion that the first named applicant does not satisfy the primary criteria for grant of Subclass 401 visa.

5.     That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to ask itself the correct questions in relation to the review;

6.     That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to correctly apply and/or interpret the Migration Act 1958 and/or the Migration Regulations 1994;

7.     That the Administrative Appeals Tribunal fell into jurisdictional error when it failed to adequately and/or properly assess the evidence before it;

26    In oral submissions below, the applicants’ solicitor submitted that the AAT’s principal error was failing to properly consider whether the first applicant was a genuine short stay visa applicant. He submitted that the AAT erred by focusing on whether the first applicant had a sponsor at the time of the AAT hearing.

27    On 27 April 2018, the primary judge dismissed the review application under r 44.12(1)(a) of the FCC Rules and delivered his reasons for judgment.

28    With respect to grounds 1(a)-(b), the primary judge found that there was no error in the approach taken by the AAT. The applicants submitted that because the delegate had based his decision on the non-satisfaction of cl 401.214 by the first applicant, the AAT could not base its decision on the non-satisfaction of cl.401.212, which required the first applicant to be the subject of a current nomination. The primary judge determined that the AAT was entitled to examine whether the first applicant held a valid nomination in accordance with cl 401.212, as consideration of whether the applicants genuinely intended to stay temporarily in Australia under cl 401.214 arises for consideration only if the criteria in relation to nomination has been satisfied. His Honour held that the AAT was required to review the delegate’s decision, and not the delegate’s reasons, citing Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39; 2 ALD 60 at 68 per Bowen CJ and Deane J and Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 per Kiefel J.

29    As to ground 1(c), the primary judge found that this ground seemed to be focused on a complaint that the hearing did not concentrate on whether the applicants intended to stay temporarily in Australia. For the reasons given above, his Honour found there was no error on the part of the AAT.

30    As to ground 2, which asserted the AAT failed to take into account relevant evidence, the primary judge reasoned that, as the AAT had found that the first applicant did not satisfy cl 401.212, it did not need to consider whether he satisfied cl 401.214.

31    As to ground 3, the primary judge found that the AAT was correct in determining that the first applicant did not meet the criteria for a Subclass 401 visa as he did not have a valid nomination under cl 401.212.

32    As to ground 4, the primary judge found that there was nothing illogical or irrational as to how the AAT concluded that the first applicant did not satisfy the criteria for a Subclass 401 visa as a result of not having a valid nomination.

33    As to ground 5, the primary judge found that the AAT asked itself the correct question by examining whether the first applicant had a valid nomination.

34    As to grounds 6 and 7, the primary judge found that the AAT had correctly applied the law and assessed the relevant evidence, and so dismissed those grounds.

The application for leave to appeal and grounds of appeal

35    On 10 May 2018, the applicants filed an application for leave to appeal from the FCCA’s judgment.

36    The applicants proposed the following two grounds of appeal (without alteration):

1. The learned Federal Circuit Court Judge McNab erred by failing to consider all the relevant circumstances of the appellant in making the decision and failed to consider that the Administrative Appeal Tribunal fell into jurisdictional error by not reviewing the decision by the delegate under Cl.401.214 of the migration regulations 1994 and applying C.401.212 of the migration regulation 1994.

2. The learned Federal Circuit Court Judge McNab erred in law by failing to consider that the Administrative Appeal Tribunal fell into jurisdictional error when it identified the wrong issue and relied on the essential requirement of the visa Cl401 .212 of the migration regulations 1994.

The applicants’ submissions summarised

37    On 19 June 2018, a Registrar of this Court directed the applicants to file and serve a written outline of submissions no later than 10 business days before the hearing. This did not occur. In response to an email from Chambers regarding the delay, the applicants requested an extension to file their outline of written submissions by 5 November 2018, which was granted and complied with.

38    The crux of the applicants’ submission is that the AAT did not review the delegate’s decision to refuse the applicants visas based on the first applicant’s non-satisfaction of cl 401.214 of Sch 2 to the Regulations. Thus, the primary judge erred in law by failing to consider whether the AAT committed jurisdictional error when it identified the wrong issue, by basing its decision on the non-satisfaction of cl 401.212, so the applicants submitted.

39    In their oral submissions, the applicants’ solicitor said that the issue of particular concern was the delegate’s finding that he was not satisfied that the first applicant genuinely intended a temporary stay in Australia. The essential complaint is that the AAT never addressed that finding and instead affirmed the delegate’s decision by reference to its finding that the applicants did not satisfy cl 401.212.

The Minister’s submissions summarised

40    The Minister’s outline of written submissions was filed in advance of the applicants’ outline, for reasons which are explained at [37] above. The Minister contended that the FCCA’s decision was not attended by sufficient doubt to warrant leave to appeal.

41    With reference to the primary judge’s understanding and application of the relevant legislative criteria for the grant of a Subclass 401 visa, the Minister drew attention to cl 401.212, which is one of the primary criteria which the applicants had to satisfy at the time a decision was made on their application. It included a requirement that the nomination be made by a person who was, at the time the nomination was approved, a long-stay activity sponsor and that the nomination approval has not ceased under reg 2.75A.

42    Regulation 2.75A set out the period of approval of nomination for a Subclass 401 visa. The approval ceased 12 months after the day on which the nomination is approved (see reg 2.75A(2)(b)).

43    The Minister contended that, on the first applicant’s own evidence before the AAT, he was not the subject of an approved nomination, with the consequence that he did not satisfy cl 401.212(1) of Sch 2 to the Regulations.

44    The Minister submitted that the AAT had had regard to all of the evidence provided by the first applicant, including the documentation he handed up at the commencement of the hearing, but none of that evidence supported the finding that the first applicant had a current approved nomination for a Subclass 401 visa.

45    As to the applicants’ claim that the AAT had identified the wrong issue, the Minister pointed out that the AAT’s duty under s 348 was to review the delegate’s decision and not the delegate’s reasons for decision. The Minister contended that the AAT made no error by identifying the issue which arose for determination on the review as whether the applicants satisfy cl 401.212. This included whether there was a valid nomination.

46    The Minister pointed out that an additional primary criteria for a Subclass 401 visa was whether the first applicant genuinely intended to stay temporary in Australia to carry out the occupation or activity the subject of the visa application (see cl 401.214). The Minister submitted that it was not necessary for the AAT to consider whether the first applicant genuinely intended to stay temporarily in Australia, as the dispositive finding for dismissing the applicants’ AAT review application was the AAT’s determination that the first applicant did not satisfy cl 401.212.

47    Finally, the Minister submitted that the FCCA’s decision was plainly correct and the applicants could suffer no substantial injustice if leave to appeal is not granted.

Consideration and determination

48    As the dismissal of an application at a show cause hearing under r 44.12 of the FCC Rules is interlocutory in nature, the applicants require this Court’s leave to appeal from the judgment of the FCCA below: see FCC Rules rr 44.12(1)(a) and 44.12(2); Federal Court of Australia Act 1976 (Cth) (Federal Court Act), s 24(1A); SZTVU v Minister for Home Affairs [2018] FCA 1394 at [25] per Perry J.

49    Considerations relevant to whether the Court should grant leave under s 24(1A) of the Federal Court Act include whether the FCCA decision:

(a)    is attended by sufficient doubt to warrant reconsideration; and

(b)    if the decision is assumed to be wrong, substantial injustice would be suffered by the applicants if leave to appeal were refused

(see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399; Minister for Home Affairs v SZRWS [2018] FCAFC 51 at [40]; Tyne (Trustee) v UBS AG [2016] FCA 241; 338 ALR 624 at [32]-[33]).

50    I consider that the FCCA’s decision is not attended by sufficient doubt to warrant reconsideration of the decision, substantially for the reasons set out in the Minister’s submissions. In particular:

(a)    having regard to the criteria for the grant of a Subclass 401 visa, including that contained in cl 401.212, the AAT was correct to find that, as at the date of its decision, the first applicant was not the subject of an approved nomination;

(b)    the AAT was correct to identify the central issue on the review as being whether or not the first applicant satisfied cl 401.212. The AAT’s task was to decide for itself what was the correct or preferable decision in respect of the visa applications;

(c)    it was not necessary for the AAT to consider whether the first applicant genuinely intended to stay temporarily in Australia, as raised by cl 401.214, as the AAT properly dismissed the review application on the basis that the first applicant did not satisfy cl 401.212, which was fatal to his application for a Subclass 401 visa; and

(d)    in circumstances where the FCCA’s decision was correct, the question of substantial injustice does not arise.

51    As to the first applicant’s central concern regarding the delegate’s finding which is referred to in [39] above, that finding has now been superceded by the AAT’s reasons for decision. The AAT has affirmed the primary decision but the relevant reasons are those that have been given by the AAT and not the delegate.

Conclusion

52    For these reasons, the application for leave to appeal will be refused. The applicants must pay the respondent’s costs, as agreed or assessed.

Associate:

Dated:    14 November 2018