Bola v Minister for Immigration
[2006] FMCA 424
•22 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BOLA v MINISTER FOR IMMIGRATION | [2006] FMCA 424 |
| MIGRATION – Application to review decision of MRT – where jurisdictional error is accepted but there is an independent ground upon which the delegate’s decision is affirmed. |
| Migration Act 1958, s.359A, Federal Magistrates Court Rules 2001 |
| SAAP v Minister for Immigration [2005] 215 ALR 162 SZEEU v Minister for Immigration [2006] FCAFC 2 |
| Applicant: | JASWINDER SINGH BOLA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG257 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 22 March 2006 |
| Date of Last Submission: | 22 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 March 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Newman & Associates |
| Counsel for the Respondent: | Mr G Johnson |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG257 of 2004
| JASWINDER SINGH BOLA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in these proceedings is a national of India who entered Australia on a temporary visitor's visa. During the currency of that visa on 19 September 2001 he applied for a temporary business entry (class UC) visa. Whilst that application was being considered Mr Bola was granted a bridging visa A. That bridging visa was granted on condition 8101 that the holder must not engage in work in Australia.
The business entry visa for which the applicant was applying was either a subclass 456 (short stay) or subclass 457 (long stay). Both of these visas required the sponsorship of a business operating in Australia. That sponsorship can be obtained by a pre-qualified business sponsor or a standard business sponsor where the nominated activity is the subject of an approved business nomination by the proposed employer (subclass 457.223(4)) of schedule 2 to the regulations).
The applicant proposed to work as a cook in the business known as Palace of North India, an Indian restaurant in Marion Street, Leichhardt. The business had obtained the appropriate sponsorship approvals in May 2002 but the applicant's visa application had not yet been determined because he was awaiting what is known as a TRA assessment.
Before the TRA assessment came in and before a decision was made upon the application for the subclass 457 visa the applicant was found in the premises of the proposed employer. His Class A bridging visa was cancelled for breach of condition 8101 and he was placed in immigration detention. It would appear that Mr Bola did not take steps to seek review of cancellation of his bridging visa A. Instead he applied for and obtained a bridging visa E (see [CB 37 and 48]).
He then allowed his application for the class UC visa to proceed and that application was decided by a delegate on 24 October 2002. The delegate declined to grant the class UC visa on the ground that he found that the applicant had engaged in work in Australia as defined in the regulations.
The applicant sought review of the decision of the delegate and attended a hearing. Prior to the hearing the applicant was sent a letter under s.359A of the Migration Act 1958 (the “Act”). This letter dated 24 September 2003 is found at [CB 64, 65]. The letter stated, inter alia:
“ You are invited to comment, in writing, on the following information.
- According to records from the Department of Immigration and Multicultural and Indigenous Affairs the sponsorship and nomination applications made by the Palace of North India were approved on 30 May 2002. The approvals both ceased to have effect 12 months from the dates of the decisions.
This information is relevant to the review because, based on this information, the Tribunal is unable to find that you satisfy subclause 457.223(4), in particular the requirement that your proposed employer is a standard business sponsor and that the nominated activity is the subject of an approved business nomination.”
The applicant did not respond to this letter and therefore the Tribunal proceeded under s.359C of the Act to make a determination on the application without hearing further from the applicant.
The Tribunal's determination had two bases. The first was that the Tribunal confirmed that the applicant had breached condition 8101 of the bridging visa A in that he had been found to have been working. The second basis was that the approved sponsorship and nomination for the visa applicant had lapsed in May 2003 and there was no valid sponsorship or nominations available to the applicant at the time that the Tribunal determined his application. In those circumstances the applicant did not meet the requirements of paragraph 457.223(4)(a) or (b).
Mr Johnson who appears for the Minister has conceded that there were failures in the Tribunal's provision of information under s.359A in regard to the allegation that the applicant was working. He has accepted that these failures would constitute a jurisdictional error; SAAP v Minister for Immigration [2005] 215 ALR 162; SZEEU v Minister for Immigration [2006] FCAFC 2. The Minister argues that this jurisdictional error should not be fatal to the Tribunal's determination because there is an entirely independent ground, which is not affected by that error, upon which the Tribunal relied to affirm the decision of the delegate. The ability of a court to decline to grant review where a jurisdictional error has been proved but there is an independent ground for decision that is unimpeached by the jurisdictional error has been made clear in SZEEU (supra).
I am satisfied that the relevant decision that was before the delegate was the decision whether or not to grant a temporary business entry (class UC) visa. I am satisfied that the decision before the Tribunal was the review of the delegate's decision in regard to the class UC visa. I am satisfied that the Tribunal could only overturn the decision of the delegate and grant the applicant a visa if it was satisfied that all the conditions had been complied with. I am satisfied that the visa applicant did not meet paragraph 457.223(4)(a) or (b) of schedule 2 to the regulations because the sponsorship and nomination had expired before the Tribunal came to its decision.
I am satisfied that the Tribunal provided the applicant with notice of this fact pursuant to s.359A of the Act and that there was no breach of procedural fairness in this regard. In those circumstances I would decline to refer the Tribunal's decision back to the Tribunal to be independently determined as I am satisfied that there was a valid ground for affirming the decision of the delegate.
I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
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