FEDERAL COURT OF AUSTRALIA

Sharma v Minister for Immigration and Border Protection [2019] FCA 1927

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

KERR J:

1    The Appellants in this case have experienced a series of almost Kafka-esque impediments and setbacks since Ms Sharma first applied in June 2013 for a Temporary Work (Skilled) (Subclass 457) Visa (Visa) to enable her to work in Australia. As Mr Swan, counsel for the Minister, accepted, the events prior to this appeal include a litany of errors made by others, including by the former Migration Review Tribunal; glacial administrative procedures; and simple misfortunes of timing. Ms Sharma, whose constant intention has been to utilise her professional skills in employment, has been caught up in a nightmare of applications, reviews, appeals and refusals which have culminated in her appeal to this Court. Mr Swan properly acknowledged that Ms Sharma is blameless for the circumstances.

2    More than six years after Ms Sharma first sought her Visa, she comes before this Court to appeal a decision of the Federal Circuit Court of Australia (FCCA): Sharma & Ors v Minister for Immigration (2019) FCCA 1791. In that decision, in July of this year Judge Mercuri of the FCCA dismissed her application for review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 May 2017. The Tribunal had concluded that it had no jurisdiction to review a decision of the delegate of the Minister to refuse Ms Sharma the Visa she had sought.

3    For the reasons I now give, Ms Sharma’s appeal - and the appeals of her husband and their child (together the Appellants), all of which are contingent upon the outcome of the Ms Sharma’s case as the primary visa-seeker - cannot be upheld. However, why that is so must be incomprehensible to Ms Sharma and her family, and the Court takes no pleasure in reaching that conclusion.

Background

4    It is uncontentious that on 25 June 2013 Ms Sharma applied for a Visa on the basis of her proposed sponsorship by Loveleen Gupta in the role of “project administrator”. On 15 November 2013 a delegate of the Minister refused to grant Ms Sharma the Visa because she was not satisfied the nominated position was genuine. The delegate concluded that Ms Sharma did not satisfy cl 457.223(4)(d) of sched 2 to the Migration Regulations 1994 (Cth) (Regulations), which was a prescribed criterion for the grant of the Visa.

5    On 3 December 2013, the Appellant applied to the then Migration Review Tribunal (the MRT) for review of that decision. On the same day, the sponsor sought review of the nomination refusal.

6    After a delay of nearly one and a half years, on 1 April 2015 the MRT concluded that it did not have jurisdiction to review the Delegate’s decision to refuse Ms Sharma the Visa. In that it was mistaken.

7    On 16 December 2015, consistently with the Full Court’s decision in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182; 237 FCR 365 (Ahmad), the matter was remitted by this Court to the MRT for reconsideration according to law.

8    On 8 March 2016, after a further delay of approximately three months, the MRT, differently constituted, remitted Ms Sharma’s application for a Visa to the Minister for reconsideration with a direction that she did satisfy cl 457.223(4)(d). At the time the matter was remitted, Ms Sharma’s original sponsor remained eligible as such. However, the particular nomination in respect of Ms Sharma expired shortly afterwards on 18 March 2016.

9    Mr Swan accepted that the Department “did not move with exemplary expedition”. At the time when the matter could have been dealt with on its merits, no decision was made.

10    Moreover, Ms Sharma’s intended sponsor had remained an approved standard business sponsor until 20 June 2016. Potentially, there was an opportunity until then to have remedied any administrative difficulties that had previously occurred. Again however, no action was taken to facilitate that outcome.

11    Having ceased to be a standard business sponsor on 20 June 2016 by reason of the effluxion of time, Ms Sharma’s original sponsor thereafter lodged two subsequent applications with the Department for approval. Those applications were rejected on 13 September 2016 and 20 February 2017 respectively.

12    By early 2017, with no prospect that her original sponsor could employ her Ms Sharma sought the advice of a migration agent. Two further possibilities of sponsorship were explored, neither of which came to fruition. However, on 29 March 2017 KLM Food Pty Ltd (KLM Food) lodged an application with the Department for approval as a standard business sponsor. It also lodged a nomination of Ms Sharma. The scheme of the Regulations and the Migration Act 1958 (Cth) (Migration Act) appear to facilitate such a process occurring contemporaneously with an applicant applying for a subclass 457 visa: see the reasoning of Katzmann, Robertson and Griffiths JJ in Ahmad at [7].

13    Unfortunately for Ms Sharma, a prompt decision was not made with respect to KLM Food’s application as a business sponsor. On 3 April 2017, a delegate of the Minister refused to grant Ms Sharma the Visa she had sought because she was not the subject of an approved nomination. Accordingly, she did not satisfy cl 457.223(4)(a): a prescribed criterion for the grant of the Visa.

14    On 21 April 2017 Ms Sharma sought merits review in the Administrative Appeals Tribunal (the Tribunal). As at that date, KLM Food’s application to become an approved sponsor still remained unprocessed within the Department.

15    In reviewing the delegate’s decision to refuse Ms Sharma a Visa, the Tribunal concluded that it lacked jurisdiction because Ms Sharma did not have an approved sponsor as was then required by s 338(2)(d)(i) of the Migration Act. The Tribunal reasoned (correctly) that it only had jurisdiction to review the decision to refuse Ms Sharma the Visa if, at the time the review application was made she was in the migration zone and either:

(a)    At the time the application for review was made she was sponsored by an approved sponsor; or

(b)    An application for review of the decision not to approve the sponsor had been made but, at the time of the application for review of the decision refusing the grant of the visa was made, review of the sponsorship decision was pending.

16    Because the Department had neither made a decision to approve KLM Food as a sponsor, nor made a decision to refuse its application such that an application for review could have been made, neither of those circumstances were engaged. Accordingly, the Tribunal found that the decision of the Delegate was not a reviewable decision under s 338(2)(d)(i) of the Migration Act. It therefore lacked jurisdiction.

17    The delay within the Department, on this occasion in deciding KLM Food’s application, had again proved fatal to the Appellants’ interests.

The Decision Of The Federal Circuit Court

18    On 1 June 2017 the Appellants filed an application seeking judicial review in the FCCA. The Appellants set out a compendious list of grounds, which are not necessary to recite. They were not then legally represented, nor have they been since. The form of their appeal grounds in the FCCA understandably reflected a want of understanding of the law.

19    However one of the self-prepared grounds of review identified their claim that the Tribunal had erred in finding that it was without jurisdiction. The learned primary judge dealt with that contention carefully and comprehensively:

58.     Subparagraph (i) of the Act is not satisfied as the first applicant was not sponsored by an approved sponsor on the date that the application for review was filed. Rather KLM Foods had applied for approval as a standard business sponsor on 29 March 2016.

59.     In addition, although KLM Foods had also lodged a nomination form nominating the applicant on 29 March 2016, this also does not satisfy section 338(2)(d)(ii) of the Act as, neither at the time the nomination was made, or, more importantly, at the time the application for review was submitted, was KLM an approved sponsor.

60.     In this case, as at 21 April 2017:

a)     Loveleen Gupta was neither an approved sponsor, nor did Loveleen Gupta have on foot an application to review any decision not to approve him as a sponsor; and

b)     KLM Foods was not an approved sponsor, nor did KLM Foods have on foot an application to review any decision not to approve it as a sponsor.

61.     This is the very situation which section 338(2)(d) of the Act was intended to avoid. If the intention was to extend the operation of section 338(2) of the Act to situations where a person had lodged an application for approval as a sponsor but that application had not yet been determined by the Department, this could have been made clear in the terms of section 338(2)(d) of the Act.

62.     Consequently, the tribunal was correct in determining that the delegate’s decision was not a part 5 reviewable decision and the tribunal therefore lacked jurisdiction to consider the application filed by the applicants on 21 April 2017.

(Footnote omitted)

20    Their application for judicial review having been refused by the FCCA, the Appellants appealed to this Court. The grounds of the appeal are as follows.

1.    That the judge erred in dismissing the appellants review application by not granting the leave to amend the appellants application filed in federal circuit court by not considering or taking into account the legal arguments raised by the applicant.

2.    The judge erred in dismissing the appellants application filed in court without considering the facts and did not consider the compelling and compassionate grounds not to refuse the case without the basis of law and facts

3.    The applicant was not provided with extra time to lodge the SBS of the company and the matter must be overlooked again as the delay in the process was due to the wrong decision of immigration department and AAT which was proven by the Federal court.

4.    The department of home affairs failed to consider that the delay in the case cause the nomination to get expired and failed to provide extended time and made the decision without even getting the result of the nomination.

5.    The matter must be heard again and enough time must be provided to the appellants to apply for further application of nomination as the sponsor is still happy to lodge the file.

21    When this matter came before this Court for hearing I granted an adjournment with a view to the possibility of the Appellants obtaining legal advice. However, that appears not to have been fruitful.

22    The substantive issue is whether or not the FCCA was correct in holding that the Tribunal was wrong to have concluded that it lacked jurisdiction to consider the application for review that had been advanced before it.

23    Mr Swan, who appeared on behalf of the Minister, relied on the Minister’s written submissions in that regard. Those submissions defend the reasoning of the primary judge as set out at [19] above.

24    Mr Swan did not dispute that on the merits a great deal could be said in Ms Sharma’s favour. He accepted that the process, with its delays and complexities, had worked practical injustice in her instance. However, he quite properly defended the legal correctness of the decision of the FCCA. I accept that submission. Insofar as the specific grounds of appeal are concerned, I also accept the correctness of the following submissions by the Minister:

24.     Ground one alleges that the primary judge erred by failing to consider the "legal arguments" raised by the appellant in support of a request for leave to amend the application filed in the proceedings below. However, there is no evidence that the appellant sought leave to file any amended application in proceedings. On the contrary, the primary judge outlined (at AB 223, [31]) that the appellants were provided (by orders dated 24 January 2018) an opportunity to file any amended application they wished, but that they did not file "any material pursuant to these orders, or otherwise".

25.    Ground two contends that the primary judge erred by dismissing the application without considering "the facts" or the "compelling and compassionate grounds". This ground fails to specify which fact, or "compelling and compassionate grounds" , that the primary judge failed to consider and is, with respect, meaningless without particulars.3 Her Honour reasons are comprehensive and show a clear aware of the relevant background "facts" (at AB 215, [2] - 222, [28]). Her Honour's reasons also show a detailed (and correct) analysis of why the Tribunal did not, as it determined, have jurisdiction.

26.    Ground three does not appear to allege any error by the primary Judge. Rather, it appears to contend that the appellant was not provided with extra time to lodge "the SBS of the company" and that the "delay in process" was due to the wrong decision of the Department and AAT. It is not, with respect, entirely clear what is meant by this ground. However, the question as to whether the Tribunal's jurisdiction was engaged turned, in this case, on s 338(2)(d) of the Act. That sub-paragraph focused on the "time the application to review the decision" was made to the Tribunal - ie. 21 April 2017. Both the Tribunal, and the primary Judge, considered whether KLM Food Pty Ltd was an "approved sponsor'' at that time, and (correctly) determined that it was not (AB 199 (12]; 229 (60]). It is not clear how the provision of "extra time" could possibly affect this analysis.

27.    The error alleged in grounds four and five is, with respect, not clear. They do not appear to allege any error by the primary Judge. However, insofar as the grounds refers to "provid[ing] extended time" or "enough time" to apply for a further nomination, no error by the primary Judge (or the Tribunal) is established, for the same reason as in ground three.

25    As a result, I am satisfied that the primary Judge did not fall into legal error in concluding the Tribunal was correct to have found that it lacked jurisdiction in the particular circumstances that came before it, notwithstanding (as counsel for the Minister accepts) that those circumstances do not reflect well on Australia’s public administration.

26    For completeness, I note the Minister’s written submissions accept that one error was made by the FCCA:

19.     The primary judge considered ground five (at AB 225, [44] - 226, [48]) and found that as it took issue with the delegate's decision, the Court did not have jurisdiction to review it: s 476(2) of the Act. The primary judge found that the term "primary decision" defined in s 476(4) of the Act meant "a privative clause decision or purported privative clause decision… that is reviewable under Part 5.. ." This does not appear to be correct because, in circumstances where the Tribunal did not have jurisdiction to review the delegate's decision (as found by the primary Judge), the delegate's decision would not be "reviewable under Part S', and hence would not be a "primary decision". However, no appealable error arises. The subject matter of the appellant's application to the Circuit Court was expressed to be only the Tribunal's decision (cf. AB 203), and her case, as advanced to the Circuit Court at hearing (as observed above) challenged the correctness of the Tribunal's assertion that it did not have jurisdiction. Moreover, it is not apparent what benefit could have ensued to the appellant from challenging the delegate's decision, in circumstances where the delegate refused to grant the visa because the appellant was not the subject of an approved nomination at the time of the decision - and the appellant does not suggest otherwise. The appellant also does not appear to attempt to raise any issue about the delegate's decision in this appeal.

27    However, I also accept the Minister’s submission that that error is of no consequence for the reasons that the submissions advance.

28    Mr Swan, on instructions, did not seek an order that the Appellants pay the Minister’s costs. In the circumstances, that was a welcome concession.

29    Mr Swan, also on instructions, drew the Court’s attention to s 351 of the Migration Act, which confers power on the Minister to substitute a decision more favourable to the Appellants for the decision of the Tribunal notwithstanding that the Tribunal itself might lack the power to make such a decision. Mr Swan submitted that the Court might recommend to the Minister that he give attention to the possibility of exercising that power, if it considered such a step to be appropriate. The Court hesitates to do so, if only because that might open the door to the prospect of yet further delay and disappointment for the Appellants. If however the Appellants are minded to make such a request, and the Minister is disposed to consider it under that provision or any other provision of the Migration Act the Court would regard that as entirely justifiable.

30    The appeals must be dismissed. There will be no order as to costs.

Associate:

Dated:    19 November 2019