Ahmad v MIBP [2015] FCAFC 182 (16 December 2015)

Case Summary & Extract

Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 (16 December 2015)

This unanimous decision of the Full Court of the Federal Court from 2015 may be of interest, given the upcoming TSS visa implementation. The decision involved a finding of the Tribunal, which was based on the Federal Circuit Court decision in Lee, that it lacked jurisdiction to review a subclass 457 visa refusal as the respective nomination application had been refused, although the nomination refusal was pending review by the Tribunal. The Federal Court held that the Tribunal had jurisdiction as it was ‘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’.

Full decision at:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2015/182.html

See below for a summary of the case including key elements of the decision followed by a detailed extract from the case.


Case Summary – Key elements from the decision

The appellant’s Standard Business Sponsor applied for a nomination of an occupation for a subclass 457 visa and the appellant subsequently applied for a subclass 457 visa under the SBS stream. A delegate refused the nomination and, later, the visa application. The sponsor applied to the Tribunal for a review of the nomination refusal and the appellant then applied to the Tribunal for review of the visa refusal.

Katzmann, Robertson And Griffiths JJ

’16. … [The Tribunal subsequently] concluded that it lacked jurisdiction to review the visa decision …

Following the decision of the Federal Circuit Court in MIBP v Lee [2014] FCCA 2881, for the purposes of s 338(2)(d)(i) there must have been, at the time the review application was made, a nomination of an occupation approved and in force. For the purposes of s 338(2)(d)(ii), there must have been at the relevant time, a review of a sponsorship refusal decision pending before the Tribunal …

101. … [T]he Tribunal had jurisdiction.

105. … [I]t 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.

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.

113. Although it is unnecessary to decide, we indicate that we would not be disposed to accept the broader submission put by [the appellant] 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’.


Case Extract – Elements from the full decision

Court: Federal Court of Australia – Full Court
Appellant: Rana Mukhtar Ahmad
Respondents: Minister for Immigration and Border Protection; AAT
Judges: KATZMANN, ROBERTSON AND GRIFFITHS JJ
Judgement for: the appellant

THE COURT

The relevant facts

4. … [T]he appellant, applied for a … subclass 457 visa [under the Standard Business Sponsorship stream]. He gave a sponsorship application transaction reference number and identified his sponsoring employer as [RKP].
5. [On the same day], RKP applied for approval of the nomination of an occupation for a subclass 457 visa under s 140GB of the Migration Act and reg 2.73 of the Migration Regulations.
8. [A few months later, a] delegate refused to approve [the nomination] …
9. On the same day, [the delegate] refused to grant the appellant a [subclass 457 visa] …
11. … [A]t the time of the visa decision there had been no approval of RKP’s nomination application under s 140GB, with the consequence that the relevant requirement in the then cl 457.223(4)(a) was not satisfied …
12. [RKP then] applied to the Tribunal for a review of the nomination decision.
13. On the same day, [… the appellant] lodged an application with the Tribunal for review of the visa decision.
16. … [The Tribunal subsequently] concluded that it lacked jurisdiction to review the visa decision …

Following the decision of the Federal Circuit Court in MIBP v Lee [2014] FCCA 2881, for the purposes of s 338(2)(d)(i) there must have been, at the time the review application was made, a nomination of an occupation approved and in force. For the purposes of s 338(2)(d)(ii), there must have been at the relevant time, a review of a sponsorship refusal decision pending before the Tribunal …

The Tribunal finds that at the time the review application was lodged on 22 May 2014, there was no nomination of an occupation relating to the applicant that was approved under s.140GB of the Act and was in force. At that time, there was also no application for review of a decision not to approve the sponsor, which was pending before the Tribunal.

The relevant legislative provisions summarised

(a) 2003 amendments

30. Section 338 [of the Migration Act] … provided:

338 Decisions reviewable by Migration Review Tribunal

(2) A decision … to refuse to grant a non-citizen a visa is an MRT- reviewable decision if:

(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 …

Consideration

95. In our opinion, the starting point must be whether, within the meaning of s 338(2)(d), it is a criterion for the grant of the visa that the [appellant] “is sponsored by an approved sponsor”.
96. It was common ground between the parties that being “sponsored by an approved sponsor” is such a criterion. Clause 457.223(1) of Sch 2 to the Migration Regulations confirms that this is so, as a criterion to be satisfied at the time of decision. It may be noted that the requirement relates, in part, to a nomination of an occupation in relation to the applicant approved under s 140GB and that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved: cl 457.223(4)(a)(i) and (ii).
97. The next question is the meaning of the words “sponsored by an approved sponsor” in s 338(2)(d)(i).
98. The definition of the word “sponsored” in s 337, which applies to s 338 (see [34] above), picks up the meaning of the word “sponsored” in the regulations. Regulation 4.02(1AA) states that for s 337, sponsored includes being identified in a nomination under s 140GB. It follows that “sponsored by an approved sponsor” in s 338(2)(d)(i) includes not only “approved sponsor” as defined in s 5(1) of the Migration Act (relevantly, a person who has been approved by the Minister under s 140E) but also includes, by virtue of reg 4.02(1AA), being identified in a nomination under s 140GB.
99. Turning to s 338(2)(d)(ii), the expression “decision not to approve the sponsor” includes both the approval of the sponsor under s 140E and the approval of the nomination under s 140GB.
100. On the facts of the present case, an application for review of the decision not to approve the sponsor had been made and was pending at the time the application to review the decision to refuse to grant the visa to [the appellant] was made.
101. It follows that the Tribunal had jurisdiction.
105. … [I]t 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.
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.
113. Although it is unnecessary to decide, we indicate that we would not be disposed to accept the broader submission put by [the appellant] 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’.

Sergio Zanotti Stagliorio, Juris Doctor (The University of Sydney)
Registered Migration Agent (MARN 1461003)


* The above text merely contains a summar and extract of a court decision and should not be treated as immigration assistance, immigration legal assistance nor legal advice. We disclaim liability in tort, equity or otherwise for any action (or lack of) taken based on the above content. If you need immigration assistance, please consult your Registered Migration Agent. If you need immigration legal assistance or legal advice, please consult your lawyer.

Published on 2 March 2018.