Federal Court of Australia

Alam v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1214

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The appellant, Mr Khorshed Alam, applied for a visa which would have permitted him to continue to reside and work in Australia. When his visa application was refused, he applied to the Administrative Review Tribunal for a review of that decision. The Tribunal held, however, that it did not have jurisdiction to entertain Mr Alam’s review application. Mr Alam sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. That application was unsuccessful. The primary judge held that the Tribunal’s decision that it did not have jurisdiction was correct. Mr Alam appealed the judgment of the primary judge.

2    This judgment addresses Mr Alam’s appeal. For the reasons that follow, the appeal must be dismissed.

The unsuccessful visa application

3    Mr Alam’s visa application was lodged as long ago as September 2017. The visa he applied for was a Temporary Work (Skilled) (Subclass 457) visa, commonly referred to as a “457 visa”. One of the key criteria for the grant of a 457 visa at the time, as set out in cl 457.223(4) of Sch 2 to the Migration Regulations 1994 (Cth), was:

Standard business sponsorship

(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 [Migration] 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

…

4    That criterion was required to be satisfied at the time of the decision in respect of the visa application.

5    At the time he lodged his visa application, a nomination of an occupation in relation to Mr Alam had been approved under s 140GB of the Migration Act 1958 (Cth). The nominated occupation was “cook” and Mr Alam’s sponsor in respect of the nomination was DM (Aust) Pty Limited. At the time Mr Alam lodged his visa application, DM was a standard business sponsor as required by cl 457.223(4)(a)(ii).

6    The problem for Mr Alam was that DM’s approval as a standard business sponsor ceased on 4 September 2017. That meant that the approval of the nomination referable to Mr Alam ceased on 4 December 2017 by operation of reg 2.75(2)(d) of the Regulations. Mr Alam’s visa application had not been assessed by that time.

7    On 9 April 2018, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused Mr Alam’s visa application because Mr Alam did not satisfy the criterion in cl 457.223(4)(a) in Sch 2 to the Regulations. That was because, as just noted, the approval of the nomination referable to Mr Alam had ceased at the time of the decision: see cl 457.223(4)(a)(iii) in Sch 2 to the Regulations.

IN THE TRIBUNAL

8    On 24 April 2018, Mr Alam applied to the Tribunal for a review of the decision to refuse his visa application.

9    The Tribunal only had jurisdiction to review the decision to refuse his visa application if the decision was a “Part 5-reviewable decision” as defined in s 338 of the Migration Act. The only provision in s 338 which was potentially applicable to the decision in Mr Alam’s case was s 338(2) of the Migration Act, which provided as follows:

338    Definition of Part 5-reviewable decision

…

(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 a Part 5‑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.

10    The threshold question for the Tribunal was whether the decision to refuse to grant a 457 visa to Mr Alam met each of the requirements or criteria in s 338(2)(a) to (d) of the Migration Act. If it did not, the decision was not a Part 5-reviewable decision and the Tribunal did not have jurisdiction to review it.

11    The Tribunal found that the decision to refuse to grant a 457 visa to Mr Alam visa did not fall within s 338(2) and was therefore not a Part-5 reviewable decision. The Tribunal accordingly found that it did not have jurisdiction to review the decision. The Tribunal reasoned as follows in paragraphs 5 and 6 of its Statement of Decision and Reasons:

It is a criterion for the grant of a Subclass 457 visa that the applicant be sponsored by an approved sponsor. There is no information before the Tribunal that at the time the review application was lodged the applicant was sponsored by an approved sponsor or that an application for review of a decision refusing a sponsorship nomination had been applied for and was pending. Accordingly, the requirements of s.338(2)(d) are not met and the application is not, therefore, a reviewable decision.

As the delegate’s decision is not reviewable in these circumstances it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

12    It can readily be seen that the essence of the Tribunal’s decision was that a criterion for the grant of the visa that Mr Alam had applied for was that he was “sponsored by an approved sponsor” for the purposes of s 338(2)(d) of the Migration Act, but that neither subparagraph (i) nor subparagraph (ii) of s 338(2)(d) were satisfied in his case. That was because there was no evidence to suggest that, at the time he made his review application, Mr Alam was sponsored by an approved sponsor, or that a decision not to approve a sponsor was under review.

IN THE CIRCUIT COURT

13    On 21 May 2018, Mr Alam filed an application for judicial review of the Tribunal’s decision in the Circuit Court. Mr Alam was not represented by a lawyer. The grounds of his review application were accordingly far from pellucid and failed to identify any jurisdictional error that could properly found the relief sought by him. The grounds of review were as follows (as drafted):

(1)    I have submitted valid application but was Refused by the Immigration department.

(2)    Department of Immigration takes long time to make my decision but after nomination expired Department did not give me time for submit new nomination on application.

(3)    The Empoyer [sic] has conflict with his business partner so that I could not get able to my nomination paper. I was expecting from the Department of Immigration department will give me time to find new Employer.

14    It also appears that when his application was heard by the primary judge, Mr Alam was unable to articulate any meaningful submissions in support of his review application. It is perhaps unsurprising, in those circumstances, that the primary judge found that Mr Alam’s grounds of review and submissions did not engage with the Tribunal’s decision: Alam v Minister for Immigration & Anor [2020] FCCA 565 (Judgment) at [30]-[35].

15    Perhaps more significantly, the primary judge also found that the Tribunal’s decision that it did not have jurisdiction was correct and that there was “no jurisdictional error on the face of the Tribunal’s decision”: Judgment at [30]. The primary judge found, in effect, that the Tribunal was correct to conclude that the criteria for the grant of a 457 visa included that the visa applicant was sponsored by an approved sponsor and that there was no evidence before the Tribunal or the Circuit Court to suggest that, at the time Mr Alam filed his review application, Mr Alam was sponsored by an approved sponsor or that an application for review of a decision refusing a sponsor’s nomination was pending: Judgment at [26]-[29]. The requirements in s 338(2)(d) were accordingly not met and the Tribunal therefore did not have jurisdiction: Judgment at [30].

16    The primary judge accordingly dismissed Mr Alam’s application with costs.

THE APPEAL

17    On 4 March 2020, Mr Alam filed a notice of appeal against the judgment of the primary judge. He again was not legally represented. The result was that his grounds of appeal failed to properly identify or articulate any appellable error by the primary judge. The grounds of appeal in Mr Alam’s notice of appeal were as follows (as drafted):

1.    The FCC made error in judgment regarding law.

2.    The FCC did not consider my view on documents that I was expecting.

3.    Reconsider my case again.

18    Mr Alam did not file any written submissions. He also failed to advance any meaningful submissions at the hearing of his appeal. Indeed, at the hearing Mr Alam effectively conceded that he did not have any “legal ground” to appeal the primary judge’s judgment.

19    Putting that apparent concession and the absence of any meaningful ground of appeal to one side, it is readily apparent that the Tribunal did not err when it found that it had no jurisdiction. It is equally apparent that the primary judge did not err in concluding that the Tribunal’s decision was correct and did not involve any jurisdictional error.

20    It is a criterion for the grant of a 457 visa that the non-citizen (in this case, Mr Alam) is “sponsored by an approved sponsor” within the meaning of s 338(2)(d) of the Migration Act: see Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365; [2015] FCAFC 182 at [96]-[96].

21    It is also abundantly clear that, at the time he applied for a review of the decision to refuse his visa application, the circumstances of Mr Alam’s case did not meet the criteria or requirements in either subparagraph (i) or (ii) of s 338(2)(d) of the Migration Act. Mr Alam was not sponsored by an approved sponsor at that time because DM’s approval as a standard business sponsor had ceased as long ago as 4 September 2017, with the result that the approval of the nomination referable to Mr Alam had ceased on 4 December 2017. There was no evidence before the Tribunal, the primary judge, or this Court, which suggested that Mr Alam was sponsored by any other approved sponsor at the time he filed his review application in the Tribunal. Nor was there any evidence that Mr Alam had ever made an application for review of a decision not a approve a sponsor, or that any such application was pending at the time he filed his review application in respect of the refusal to grant him a 457 visa.

22    There has never been any suggestion, or basis for suggesting, that the decision to grant a 457 visa to Mr Alam was a Part 5-reviewable decision because it was covered by any other subsection of s 338 of the Migration Act. Nor has there ever been any suggestion, or basis for suggesting, that the Tribunal had jurisdiction to review the decision on some other basis. It follows that Mr Alam’s appeal must be dismissed.

CONCLUSION AND DISPOSITION

23    The primary judge was correct to dismiss Mr Alam’s application for judicial review of the Tribunal’s decision that it had no jurisdiction to entertain Mr Alam’s review application. Mr Alam’s appeal must accordingly be dismissed. Mr Alam did not advance any reasons why he should not pay the Minister’s costs if his appeal failed. Nor are there any apparent reasons why costs should not follow the event. Accordingly, Mr Alam should be ordered to pay the Minister’s costs of the appeal.

Associate:

Dated:    13 October 2022