El Masri v Minister for Immigration

[2015] FCCA 1703

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL MASRI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1703

Catchwords:
MIGRATION – Migration Review Tribunal – Temporary Business Entry (Class UC) visa – jurisdiction of the Tribunal – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958, ss.338(2), 476

Ahmad v Minister for Immigration & Anor [2015] FCCA 1486
Owners of the Ship, Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404

Applicant: KHALED BAHJAT EL MASRI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1262 of 2015

Judgment of: Judge Street

Hearing date: 19 June 2015

Date of Last Submission: 19 June 2015

Delivered at: Sydney

Delivered on: 19 June 2015

REPRESENTATION

Counsel for the Applicant: Mr O. Jones

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Solicitors for the Respondent: Ms B. Rayment
Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $3500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1262 of 2015

KHALED BAHJAT EL MASRI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 10 April 2015, holding that the Tribunal did not have jurisdiction in respect of an application made on 1 October 2014 for review of a Temporary Business Entry (Class UC) visa.  The grounds of the application are:

   1. The Second Respondent made a jurisdictional error by failing to exercise jurisdiction.

   Particulars

   a. The Second Respondent misconstrued .s 338(2) (d) (ii) of the A1igration Act 1958 (Cth) (Act).

   b. The Second Respondent reasoned that an "application for review of decision not to approve the sponsor" within the meaning of s 338(2) (d)(ii) of the Act did not include an application for review of a decision not to approve an application by the sponsor for approval of a nomination of an occupation in relation to the Applicant wider s J 40GB of the Act when read with reg. 2.72 of the Regulations.

   c. An "application for review of a decision not to approve the sponsor" within the meaning of s 338 (2)(d)(ii) of the Act:

   i. is no confined to an application for review of a decision not to approve an application by the sponsor to be approved as a standard business sponsor under s 140E of the Act when read with reg. 2.59 of the Migration Regulations 1994 (Cth.) (Regulations); and

   ii. includes an application for review of a decision not to approve an application by the sponsor for approval of a nomination of an occupation in relation to the Applicant wider s l 40GB of the Act when read with reg. 2. 72 of the Regulations.

2. On 26 March 2015, the Tribunal wrote to the applicant identifying the potentially dispositive issue in respect of a want of jurisdiction for reason of the failure to meet either of the requirements under s.338(2)(d).

3. Three minutes prior to the lodging of the application for review of the Temporary Business Entry (Class UC) visa, there was lodged on 1 October 2014 an application for review of a nomination application for review of the refusal of the nomination in respect of Marks & Co Pty Ltd, which refusal was made on 16 September 2014. On 15 April 2015, a Migration Review Tribunal affirmed the decision in respect of the refusal of the nomination. The Tribunal relevantly held that s.338(2)(d)(ii) required a pending review application in respect of a decision not to approve the sponsor.

4. That is a construction consistent with a decision of this Court in Ahmad v Minister for Immigration & Anor [2015] FCCA 1486 and the construction of the Tribunal, for the reasons identified in Ahmad, was correct. Mr Jones, counsel for the applicant contends that the relevant jurisdictional fact upon which, if his construction of s.338(2)(d)(ii) be correct, is whether there was pending an application for review of a decision to refuse a nomination. The High Court in the Owners of the Ship, Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at [426] said:

   Where jurisdiction depends on particular facts or a particular state of affairs, a challenge to jurisdiction can only be resisted by establishing the facts on which it depends. And, of course, they must be established on the balance of probabilities in the light of all the evidence advanced in the proceedings held to determine whether there is jurisdiction.

5. Whilst those principles were directed to jurisdiction before a Court, the same reasoning applies in relation to a state of affairs or fact upon which the jurisdiction of the Tribunal depends. In the present case, the Tribunal referred to the application for review of the refusal of nomination as having been lodged on 30 September 2014, albeit that on the evidence before this Court the application was in fact lodged on 1 October 2014 at 12:24.30 pm EST. Relevantly, in relation to Mr Jones’ of counsel contended construction of s.338(2)(d)(ii), the application for review of the delegate’s decision refusing to grant a Temporary Business Entry (Class UC) visa was lodged three minutes later on 1 October 2014, 12.27.47 pm EST.

6. As the issue of the timing or date on which the alleged correct instruction advised by Mr Jones of counsel turns would, if he is correct, be a jurisdictional fact evidence would be admissible before this Court to prove the correct time and date.  In the present case, the reference by the Tribunal to the lodgement of the application for review of the refusal of the nomination on 30 September 2014 is a fact found by the Tribunal that would support Mr Jones counsel’s argument in any event. 

7. However, for the reasons I have given, the Court is entitled to receive evidence in respect of an alleged jurisdictional fact and to the extent that Mr Jones of counsel’s construction of s.338(2)(d)(ii) were to be accepted, I find that there was pending at the time of the application for review of the Temporary Business Entry (Class UC) visa an application to review the decision to refuse the nomination pending. However, for the reasons I have given in the decision of Ahmad, the construction advanced by Mr Jones is not correct and there was no pending application for review of a decision not to approve the sponsor. 

8. In addition to formally challenging the decision of this Court in Ahmad, Mr Jones stated that that matter was the subject of appellate challenge.  The existence of an appeal is not of itself a ground to adjourn the final hearing of a matter before this court. For the reasons given, this case is substantially the same as the facts that gave rise to the decision of Ahmad and for the reasons given in Ahmad the application is dismissed.  

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  30 June 2015