Brannan v Minister for Immigration
[2007] FMCA 1256
•13 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRANNAN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1256 |
| MIGRATION – Visa – Temporary Business Entry (Class UC) visa – whether Migration Review Tribunal had jurisdiction – sponsor – subclass 457 visa – jurisdiction – Tribunal found that the application for review was received outside the mandatory time limit prescribed by Migration Act 1958 (Cth) s.347(1)(b) – application not a valid application – whether delegate’s decision an MRT-Reviewable decision – no jurisdictional error. |
| Migration Act 195 (Cth) ss.65, 66, 338, 347, 494B, 494C |
| Applicant: | THOMAS JOHN BRANNAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 326 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 July 2007 |
| Date of Last Submission: | 9 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2007 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 326 of 2007
| THOMAS JOHN BRANNAN |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal signed on 2nd January and handed down on 5th January 2007. The Tribunal found that it did not have jurisdiction.
The Applicant filed an application under the Migration Act on 2nd February 2007 seeking an order quashing the Migration Review Tribunal’s decision and an order in the nature of mandamus remitting his application for determination according to law.
Background
The Applicant is a citizen of the United Kingdom who applied for a Temporary Business Entry (Class UC) visa on 17th November 2004. The application was refused by a delegate of the Minister on
18th January 2005. The Applicant applied to the Migration Review Tribunal for a review of the delegate’s decision on 12th July 2006. In his application, he set out that he had received a letter from the Department of Immigration and Citizenship on 11th July 2006, notifying him of the delegate’s decision.
The Tribunal wrote to the Applicant on 18th July 2006, inviting him to comment and provide further information on what it described as “eligibility issues”. The Tribunal’s letter told the Applicant that:
The Migration Act 1958 (the Act) defines what decisions are reviewable by the Tribunal. Decisions that are MRT reviewable are set under s.338 of the Act.
Section 338(2)(d) provides that where it is a criterion for the grant of a visa that you are sponsored by an approved sponsor, the Tribunal can only review the refusal to grant you a subclass 457 visa if:
· Your proposed employer was approved as a sponsor at the time you lodged your application for review; or
· Your proposed employer was not approved as a sponsor and has sought review of the sponsorship refusal and that decision is pending.
A criterion for the grant of a subclass 457 visa is that you are sponsored by an approved sponsor: subclause 457.223(4).
Based on an initial assessment, the refusal of your subclass 457 visa may not be reviewable by the Tribunal as it does not appear to fall within the terms of s.338.
The visa application form you lodged with the Department of Immigration and Multicultural Affairs specified the employer you were proposing to be employed by and was accompanied by evidence that the proposed employer was a person who had applied for approval under regulation 1.20C but whose application had not been decided. This indicates that you were seeking a subclass 457 visa on the basis of being sponsored by an Australian business and that you were seeking to meet the requirements of subclause 457.223(4).
Information before the Tribunal indicates that your proposed employer has been refused approval as a sponsor. According to Tribunal records, your proposed employer did not have a valid application for review of the sponsorship refusal before the Tribunal when you lodged your review application.[1]
[1] A copy of the Tribunal’s latter can be found at pages 51 and 52 of the Court Book.
The letter asked the Applicant to provide comments in writing as to why the decision to refuse him a visa was reviewable by the Tribunal. The Applicant forwarded to the Tribunal copies of work references and a curriculum vitae. He also sent to the Tribunal a notice of Appointment of Representative/Authorised Recipient, nominating one Toufic Laba-Sarkis as his representative and authorised recipient. Mr Laba-Sarkis’ occupation was given as “community volunteer”. He also provided two letters, typed but unsigned and undated, one from a Mr Attila Vasko and the other from a Mr Joshua McGill.
The letters from the Messrs Vasko and McGill set out that they were both former employees of one Clinton Lownes, who also employed the Applicant. The two letters referred to conversations between the Applicant and Mr Lownes about Mr Lownes sponsorship of the Applicant.
Mr Vasko’s letter said, in part:
…and during this time I was witness to conversations between Mr Brannan and Mr Lownes about Mr Brannan’s status with the company and sponsorship process and why he had not heard from DIMIA about Mr Lownes’ application and if in fact Mr Brannan was sponsored or not to which Mr Lownes replied don’t worry it’s ok am dealing with it. I am taking care of you and won’t let you down.
I was witness to at least 3 of these or similar conversations between Mr Brannan and Mr Lownes during my time with C,S,K Transport and during all these conversations about Mr Brannan’s sponsorship Mr Lownes stated to him he had no worries he was sponsored and to concentrate on his work and he would be taken care of.[2]
[2] See Court Book page 61
Mr McGill’s letter said, relevantly:
…On more than 5 of these occasions I heard Mr Brannan ask Mr Lownes specifically about his sponsorship and visa status with Mr Lownes’ company and if he had been communicating with DMIMA and if he was sponsoring Mr Brannan or not. On all of these occasions Mr Lownes was adamant and stated that he was taking care of all aspects of the communication, visa and sponsorship process with DIMIA and that Mr Brannan had nothing to worry about, there was no problems and that he was being sponsored by Mr Lownes and his company.[3]
[3] See Court book at 62
One of the documents sent to the Tribunal was an application for review to the Migration Review Tribunal on behalf of Clinton Lownes and C.S.K Transport Solutions Pty Ltd signed by Mr Lownes and dated 02/08/2006. The application was said to be for review of “a decision to refuse approval as a business sponsor (including renewal as a business sponsor) or as a professional development sponsor. It was not accompanied by a copy of the decision and does not appear to have been accepted by the Tribunal as an application.
The Applicant later forwarded to the Tribunal a letter dated 2nd August 2006 setting out his qualifications as a gas technician and copies of his UK driving licence and his plant operator’s licence.
The Tribunal decision
The Tribunal signed a decision on 2nd January 2007 and handed that decision down on 5th January 2007. The Tribunal decided that it did not have jurisdiction in the matter. A copy of the Tribunal decision record appears on pages 78 to 83 of the Court Book.
The Tribunal noted that it had formed the preliminary view that it did not have jurisdiction because it did not appear that the Applicant’s proposed employer was either approved as a sponsor at the time of the application or had sought review of a decision refusing approval of sponsorship and that decision was still pending. The Tribunal noted that the Applicant had made written submissions on 15th August and
5th September 2006.
The Tribunal found that the application for review was received by the Tribunal outside the mandatory time limit and was not a valid application. Thus, the Tribunal did not have jurisdiction to review the delegate’s decision. The Tribunal set out its reasons in this way:
The Tribunal is satisfied that the contents of the delegate’s decision complied with the requirements of s.66(2).
The decision notification letter was dated 18 January 2005 and sent by prepaid registered post on 18 January 2005 from a place in Australia to the applicant’s address in Australia provided to the Minister for the purposes[4] of receiving documents.
The Tribunal finds that the decision notification letter was dispatched within 3 working days of the date of the letter to the applicant’s correct address, in accordance with s. 494B(4). The notice was returned to the Department unclaimed. Therefore, the applicant is taken to have received the notice on 28 January 2005, being 7 working days after the date of the notice. This is so even though the notice was returned unclaimed.
The Tribunal finds that the applicant is seeking review of the delegate’s decision under s.338(2) and that the 21 days prescribed period set out under s.347(1)(b)(i) and r.4.10(1)(a) applies. Therefore, given the Tribunal’s findings regarding when the applicant was notified of the delegate’s decision and the applicable prescribed period, the Tribunal finds that the last day that the application for review could be lodged ended on 28 February 2005.
The application for review was not received by the Tribunal until 12 July 2006, after the prescribed period had expired.[5]
[4] sic
[5] See Court Book at 80 and 81
The Tribunal also found that the delegate’s decision of 18th January 2005 was not an MRT-Reviewable decision in accordance with s.338(2)(d), nor was it an MRT-Reviewable decision under any of the other sub-paragraphs of s.338 and r.4.02(4). Thus it was not an application properly made under s.347 for review of an MRT-Reviewable decision as required by s.348(1) of the Migration Act. Accordingly, the Tribunal found that it had no jurisdiction.
The Tribunal set these reasons for that finding:
…On the visa application form 1066 lodged with the Department on 17 November 2004, the applicant indicated that he was applying for a visa on the basis of being “a person sponsored by an Australian or overseas business”. This indicates that the applicant was seeking to meet the requirements of subclause 457.223 (4) for the grant of a subclause 457 visa. A criterion for the grant of subclass 457 visas in the circumstance is that the applicant is sponsored by an approved sponsor in accordance with r.457.223(4)(i).
…Given the Tribunal’s finding that sponsorship is a criterion for the grant of subclass 457 visas in the circumstances and that the applicant was in the migration zone at the time of the visa application, the Tribunal finds that the requirements of s.338(2)(d) must be met in order for the decision to be MRT-reviewable.
The Department’s file and electronic records indicate at the time of lodgement, the visa application was accompanied by an application by the proposed sponsor for approval as a business sponsor. The Department’s file further indicates that a decision was made to refuse the business nomination on 17 January 2005 and the proposed sponsor was notified of this decision by letter dated 17 January 2005.
…The Tribunal has considered the applicant’s submission but does not consider that the application for review satisfies the mandatory requirements of s.338(2)(d). The Tribunal finds that at the time of lodgement of the application for review on 12 July 2006, the applicant was not sponsored by an approved sponsor, and that the proposed sponsor had not lodged an application for review with the Tribunal in respect of a decision not to approve the sponsorship. The Tribunal notes an application for review was submitted by the applicant’s sponsoring employer on 15 August 2006. However, this falls after the date of lodgement of this particular application for review.[6]
[6] See Court Book at 81-82.
The Tribunal’s decision was that it did not have jurisdiction in the matter.
Application for Judicial Review
The Applicant filed an application for review and a supporting affidavit on 2nd February 2007. In the application he claimed that the date when he received notification of the decision was 12th January 2007. The Applicant seeks orders quashing the decision of the Migration Review Tribunal and remitting his application to the Tribunal for determination.
The application sets out the following grounds:
a)The MRT failed to properly notify the Applicant or his sponsor.
b)The MRT failed to use information on file and contact Applicant or his sponsor.
c)MRT was made aware that the Applicant did not receive mail therefore acted contrary to the law by refusing the application for review.
The Applicant told the Court that when he applied for a visa he provided a mobile telephone number and an email address, neither of which had changed. He said that he went to the Department of Immigration and Multicultural Affairs in July 2006 because he had found a new sponsor. Until that time he said he had no notification that his application had been refused. He said that his employer had not had any notification that the application for sponsorship had been refused.
The Applicant said that his landlord had sent his letters back. The landlord had refused to accept any mail. If he had been notified he would have taken the appropriate action. He said that the Department failed to contact him by email or mobile phone. He said “It’s 2007, everybody has email and a mobile phone”.
The Applicant went on to tell the Court that there were 10 or 12 companies who wanted to sponsor him. He is a qualified gas technician and he had applied for a job with Sydney Water. He said that his life was “on hold” until he could obtain a visa that would permit him to work.
The Applicant did not provide an explanation as to why he believed that his employer had not been notified.
The Applicant said that Mr Toufic Laba-Sarkis had offered to help him, which is why he brought the application for review to the Migration Review Tribunal.
Conclusions
The Applicant’s explanation of his failure to receive the notification of the delegate’s decision is supported by the copy of letter that appears in the Court Book. A photocopy of the envelope addressed to the Applicant at his correct address appears at page 19. It can clearly be seen that the letter was sent by registered post and was marked “Return to Sender” with a circle around the explanation “refused”. The Department’s stamp on the letter shows that it was returned on
24th January 2005.
The Department also wrote to the Applicant care of his employer, Mr Clinton Lowney, 26/17 Blaxland Avenue Newington NSW 2127.
A copy of the envelope addressed to the Applicant at that address appears at page 26 of the Court Book. Again, it can clearly be seen that the letter was sent by registered post and was marked “Return to Sender” with no explanation. The Department’s stamp on the letter shows that it was returned on 7th March 2005.
Section 338 of the Migration Act 1958 sets out the types of decisions that are MRT-reviewable decisions. The relevant paragraph and sub-section is s.338(2), which provides:
(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant to a non-citizen a visa is an MRT-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 sponsoring decision is pending.
In this case, the application to the Migration Review Tribunal for review of the delegate’s decision was made on 12th July 2006. At that stage, the Applicant did not meet the requirement of s.338(2)(d)(i) because he was not sponsored by an approved sponsor at the time the application was made. The sponsoring business was not approved as a business sponsor by the delegate’s decision on 17th January 2005.
Also, the application to the Migration Review Tribunal did not meet the requirement of s.338(2)(d)(ii), because there was no application pending for review of the decision not to approve the sponsor.
The failure to meet the requirements of s.338(2)(d) would alone be sufficient to find that the Tribunal did not have jurisdiction.
Section 347 of the Migration Act sets out the requirements for an application for review of an MRT-reviewable decision. Sub-section (1) relevantly provides:
(1) An application for review of an MRT-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) – 28 days after the notification of the decision; or…
(c) be accompanied by the prescribed fee (if any).
Even if the application for review complied with s.338(2)(d), it must have been made not later than 28 days after the applicant was notified of the decision. The delegate’s decision was made on 18th January 2005 and the delegate wrote to the Applicant at the address on his application on that same date. The methods by which the Minister gives documents to a person are set out by s.494B of the Act. In particular, s 494B (4) provides:
Dispatch by prepaid post or by other prepaid means Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purpose of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purpose of receiving documents.
Where a document is sent by prepaid post or other prepaid means as prescribed by s.494B(4) to an address in Australia, the person is taken to have received the document 7 working days after the date of the document (s.494C(4)). This is so even if the document is returned unclaimed.
In this case, the delegate sent copies of the decision to the Applicant in two separate documents, dated 18th and 25th January 2005. There is, however, no evidence before the Court that either document was dispatched by prepaid post within 3 working days of its date. There is, then, no proof that the requirement of s.494B(4)(a) was met. Hence, the Minister cannot rely on s.494C(4) of the Act to show the date the Applicant was notified of the delegate’s decision.
Regrettably for the Applicant, however, his application for review did not comply with s.338(2)(d) of the Act. When the application for review was made, the Applicant was neither sponsored by an approved sponsor nor had an application for review of the decision not to approve the sponsor been made.
It follows, then, that the Migration Review Tribunal did not fall into error when it held that the delegate’s decision was not an MRT-reviewable decision and therefore it had no jurisdiction. The application for review must therefore be dismissed with costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 1 August 2005
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