Ayoub v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 968

FEDERAL COURT OF AUSTRALIA

Ayoub v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 968

MAROUN AYOUB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 226 OF 2002

BRANSON J
6 AUGUST 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 226 OF 2002

BETWEEN:	MAROUN AYOUB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	6 AUGUST 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.There be no order as to costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 226 OF 2002

BETWEEN:	MAROUN AYOUB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	6 AUGUST 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. On 22 March 2002 the applicant completed, signed and filed a Form 5 application by which he purported to appeal against a decision of the Migration Review Tribunal (“the Tribunal”) dated 4 March 2002.  The decision of the Tribunal affirmed a finding that the applicant is not entitled to a Temporary Business Entry (Class UC) visa.  The application does not explicitly identify the final relief sought by the applicant – although the use of the word “appeal” indicates that he sought to have the decision of the Tribunal set aside.

2. In support of his application the applicant filed an affidavit sworn jointly by him and Vicky Ayoub (“Ms Ayoub”).  Ms Ayoub is the applicant’s sister‑in‑law and Co‑Managing Director of the business “Crystal Marble Granite” (sometimes identified as Chrystal Marble & Granite) which sought to sponsor the applicant.  The applicant speaks very limited English yet no affidavit was sworn by an interpreter deposing to the fact that the affidavit was read to the applicant in a language which he understands and that the applicant appeared to understand it (see Lindgren et al Federal Civil Litigation Precedents at [22,040] and Precedent 220.25).  A likely inference is that Ms Ayoub explained the content of the affidavit to the applicant.

3. The first substantive paragraph of the affidavit is in the following terms:

   “Our request is to appeal against an MRT decision to refuse granting a Temporary Business Entry visa subclass UC. The MRT decision was made on 4 March 2002, Sydney. We feel that the decision was unfair, so we are exercising our right to appeal against the decision. The appeal is not on grounds of error in applying the Migration Act, however, it is based on error of fact.”

   FACTUAL BACKGROUND

4. On 6 May 1999 the Department of Immigration and Multicultural Affairs (“the Department”) provided to Mr Garry Howard of Howard’s Immigration Services written advice that Crystal Marble Granite had been approved as a business sponsor.  Howard’s Immigration Services was apparently acting at that time as the migration agent for the owners of the business Crystal Marble Granite.  The written advice stated:

   “The sponsorship approval has effect for 12 months, until the number of 457 visas granted to primary applicants under this sponsorship equals the number of nominations specified above or this approval is revoked under Regulation 1.20F of the Migration Regulations.”

   The number of nominations specified on the written advice was three.

5. On 8 September 1999 (ie apparently within the life of the 6 May 1999 approval) Ms Ayoub signed a form 1067 Business sponsorship application in respect of Crystal Marble Granite.  On the same day she signed a Form 1068 Nomination by a business sponsor in respect of the applicant.  It is unclear when these two forms were lodged with the Department but it may be that they were lodged on 28 September 1999 (see [7] below).  On 22 October 1999 the applicant’s application for a long‑stay temporary visa was lodged with the Department.  The application disclosed that the applicant was sponsored by Crystal Marble Granite.

6. It appears that it was not until 14 March 2000 that the Department responded to the applicant’s application.  By a letter bearing that date the Department advised Ms Ayoub that the applicant was required to undertake a chest x‑ray and apply for trade recognition through the Department of Employment, Workplace Relations & Small Business.  The material before me does not disclose why it was that it was not until 22 March 2001 that the applicant was advised that he had been classified for the purposes of migration to Australia as a “Wall & Floor Tiler [4416-11]”.  By this time the 6 May 1999 approval of Crystal Marble Granite as a business sponsor had long expired.  No determination had been made on the application of 8 September 1999.

7. By letter dated 7 June 2001 the Department wrote to Ms Ayoub.  The letter opened as follows:

   “I refer to your application for Standard Business Sponsorship & Nomination by a Business Sponsor lodged on 28/09/99.  You are requested by supply further information in order to assist with the assessment of your application.  Please provide the following information:

   … .”

8. By letter dated 9 July 2001 Ms Ayoub responded to the Department’s letter of 7 June 2001.  She referred to the approval of 6 May 1999 of Crystal Marble Granite as a business sponsor and indicated her understanding that that approval would cover the nomination of the applicant “who is needed by our company as a qualified tiler.”  She advised that “(t)he company background is still applicable as per the submission addressed to the Assistant Manager of 6 April 1999”.

9. By letter dated 14 September 2001 the Department advised Ms Ayoub that a decision had been made to refuse the Business sponsorship application made on behalf of Crystal Marble Granite.  She was provided with a copy of the relevant decision record.  It appears that the refusal was based on perceived inadequacies in Ms Ayoub’s response to the letter dated 7 June 2001 from the Department.  The decision record suggests that the delegate of the Minister did not have regard to the earlier submission of 6 April 1999 referred to by Ms Ayoub in her letter of 9 July 2001.  The formal instrument of rejection provided to Ms Ayoub is defective in that the name of the applicant for approval as a business sponsor has not been inserted in the relevant place on the instrument.  Nothing would seem to turn on this failure but, taken together with errors contained in the decision record concerning the applicant’s visa application which are referred to below, it may help explain the concern of the applicant and Ms Ayoub with respect to the fairness of the process by which the applicant’s visa application came to be rejected.

10. Under cover of a letter dated 18 September 2001 from the Department the applicant received a record of decision whereby the decision‑maker concluded that the applicant did not satisfy the requirements for the grant of any of the visa subclasses included in the class Temporary Business Entry (Class UC) visa.  The subclass which was potentially applicable to the applicant was Temporary Business Entry (Class UC) Subclass 457 Business (Long Stay) visa.  Regrettably the decision record included incorrect particulars as to both the applicant’s date of birth and his citizenship.  He was subsequently provided with a corrected decision record.  The basis upon which it was decided that he did not satisfy the requirements for the grant of  a Temporary Business Entry (Class UC) visa was that Crystal Marble Granite was not, at the time of the decision, an approved business sponsor.

11. It appears that the applicant and Ms Ayoub received advice that a fresh application should be made for Crystal Marble Granite to be approved as a business sponsor.  They were not advised to seek review of the decision of the Minister’s delegate to reject the earlier application.  Curiously they were advised, nonetheless, to seek review of the decision of the delegate that the applicant did not satisfy the requirements for the grant of a Temporary Business Entry (Class UC) visa.

12. On 4 March 2002 the Tribunal affirmed the decision of the delegate.  It found that the applicant was not entitled to the grant of a Temporary Business Entry (Class UC) visa as Crystal Marble Granite did not hold a current approval as a business sponsor.  The Tribunal noted that the application made by Crystal Marble Granite for approval as a business sponsor was refused by the delegate on 14 September 2001 and posted to Crystal Marble Granite on 18 September 2001.  It further noted that no application for review by the Tribunal of that decision had been made.

13. By letter dated 29 May 2002 Ms Ayoub was advised by the Department that Crystal Marble Granite had again been approved as a standard business sponsor.  Reference was made to the approval having effect for no longer than twelve months.  Interestingly in the circumstances, the author of the letter referred to the need for any Temporary Business Entry (Class UC) Subclass 457 Business (Long Stay) visa application to “be lodged well before the expiry of the business sponsorship approval and the expiry of the business nomination approval in order for a decision on the visa to be made before they expire”.

    CONSIDERATION

14. It seems beyond dispute that the applicant, as at the time of the decision of the delegate, did not satisfy the criteria for the grant of a Temporary Business Entry (Class UC) Subclass 457 Business (Long Stay) visa.  Critically, as at the time of the decision of the delegate, he had not been nominated by an employer who was an approved business sponsor for a relevant activity (see criteria 457.233).  The approval of 6 May 1999 of Crystal Marble Granite as an approved business sponsor had expired before the date of the delegate’s decision.  The application dated 8 September 1999 was rejected just four days before the applicant’s visa application was rejected.  Notification of the rejection was posted to Crystal Marble Granite on the very day that the applicant’s visa was refused.  The situation had not relevantly changed as at the date of the decision of the Tribunal.  Crystal Marble Granite did not at that time hold an approval as a business sponsor.

15. However, as at the time that the applicant made his visa application he had been nominated by an employer who was an approved business sponsor.  I have not heard from the delegate or delegates of the Minister who were responsible for the processing of the applicant’s visa application.  I do not know the circumstances that led to the applicant’s visa application taking only ten days short of two years to be processed.  Nor do I know why the delegate apparently took no steps to obtain the earlier submission to which Ms Ayoub referred in her letter or, alternatively, to ensure that Ms Ayoub understood the importance of providing afresh the information sought from her by the letter of 7 June 2001.

16. I accept the evidence of the applicant and Ms Ayoub that they acted on the advice of their then migration agent with respect to the decision of the delegate of the Minster.  I have not heard from their then migration agent.  I therefore do not know why no application was made for review of the decision of the delegate to reject Crystal Marble Granite’s application for approval as a business sponsor.  I note, however, that at least one similar application by Crystal Marble Granite had earlier been approved and a later application has now been approved.  On the face of it there would appear to be no reason to think that Crystal Marble Granite could not appropriately have been granted approval as a business sponsor in September 2001 had the appropriate information been before the delegate.

17. I have considerable sympathy for the respective positions in which the applicant and Ms Ayoub, as Co‑Managing Director of Crystal Marble Granite, find themselves. However there is no basis upon which the Court can set aside the decision of the Tribunal. No true appeal from the decision of the Tribunal can be brought in this Court and judicial review of the decision of the Tribunal is available in very restricted circumstances only (see Part 8 of the Migration Act 1958 (Cth) (“the Act”)). None of those restricted circumstances has any application in the circumstances of this case. Indeed, no error of law of any kind can be identified in the decision of the Tribunal.

18. In the circumstances, which appear to include that Crystal Marble Granite has an urgent need for the applicant’s skills, it maybe that the Minister will consider that it is in the public interest for him to substitute for the decision of the Tribunal a decision more favourable to the applicant (see s 351 of the Act). However that is entirely a matter for the Minister.

19. The order of the Court must be that the application be dismissed.  There will be no order as to costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             6 August 2002

The Applicant appeared without legal representation
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	22 July 2002
Date of Judgment:	6 August 2002