Chae v Minister for Immigration & Anor
[2008] FMCA 829
•20 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHAE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 829 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of an education (occupational trainee) visa – nomination refusal by delegate thereby rendering applicant ineligible – nomination decision not reviewable by the Tribunal – no reviewable error found. LAW REFORM – Whether applicants should be given a real opportunity to address nomination refusals considered. |
| Migration Act 1958 (Cth), ss.359, 359A |
| Abebe v Commonwealth (1999) 197 CLR 510 Dai v Minister for Immigration [2007] FCAFC 199 Kang & Anor v Minister for Immigration and Citizenship & Anor [2007] FMCA 1373 Kim v Minister for Immigration [2007] FCA 138 Lee v Minister for Immigration and Citizenship [2007] FMCA 1822 Tvarkovsky v Minister for Immigration [2001] FCA 375 |
| Applicant: | INN CHAE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 704 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 20 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2008 |
REPRESENTATION
The Applicant appeared in person by telephone
| Solicitors for the Respondents: | Ms S Kantaria Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,720.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 704 of 2008
| INN CHAE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was signed on 29 January 2008 and notified to the applicant by letter dated 15 February 2008. The latter date is apparently the date on which the decision was handed down. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant an Educational (Temporary) (Class TH) visa. The background facts are conveniently summarised in the Minister's written submissions filed on 13 June 2008. I adopt as background for the purposes of this judgment paragraphs 2 through to 13 of those written submissions:
On 2 November 2006, the applicant applied to the Department of Immigration and Citizenship for an Educational (Temporary) (Class TH) visa (court book (CB) 1-15). On 8 March 2007, the Minister's delegate refused to grant the applicant that visa because she did not satisfy clause 442.221(1) of Schedule 2 of the Migration Regulations 1994 ("Regulations") or the requirements for the grant of any subclass within the class TH Educational (Temporary) visa (CB 32-37).
On 2 November 2006, a nomination for occupational training was lodged by Transworld Pty Ltd ("Transworld") in respect of the applicant (CB 13-15). On 8 March 2007, the Minister's delegate refused Transworld's nomination for occupational training because the nomination did not meet the requirements of regulation 442.223(b) of the Regulations. This was because the Commonwealth had not provided, and the Minister had not approved, a nomination in respect of occupational training (CB 26-31).
On 5 April 2007, the applicant lodged an application for review of the delegate's decision with the Tribunal (CB 39-45). The Tribunal decision record suggests that no such application for review was made by Transworld.
By letter dated 19 October 2007, the Tribunal invited the applicant:
a)pursuant to s.359A of the Migration Act 1958 (Cth) ("Migration Act"), to comment on information which it considered would be the reason, or part of the reason, for affirming the decision under review namely, that on 8 March 2007 Transworld's nomination for occupational training was refused ("s.359A letter") (CB 48-50); and
b)pursuant to s.359 of the Migration Act, to provide additional information about whether occupational opportunities available to Australian citizens or permanent residents would be adversely affected if the visa was granted ("s.359 invitation") (CB 48-50).
On 26 November 2007, the applicant responded the s.359A letter and s.359 invitation and claimed that:
a)she was of the view that the nominator was able to provide occupational training opportunities to someone like her because the company had already provided many people with workplace training;
b)since the business is unique, there is no other place that she could be trained;
c)she would not be paid while receiving training; and
d)upon completion of her training, she would return to Korea so the occupational opportunities for Australian people would not be adversely affected (CB 51).
On 28 November 2007, the Tribunal invited the applicant to attend a hearing scheduled for 25 January 2008 (CB 52-57). The applicant failed to respond to the hearing invitation and did not attend the hearing (CB 63.6).
Relevant legislation
At the time the visa application was lodged, an Educational (Temporary) (Class TH) visa contained the following sub-classes: Sub-class 442 (Occupational Trainee), Sub-class 415 (Foreign Government Agency), Sub-class 419 (Visiting Academic) and Sub-class 418 (Educational). The Tribunal noted that the only sub-class in respect of which any claims had been made was Sub-class 442 (Occupational Trainee) visa and there was no evidence to suggest that the primary applicant met the criteria for any of the other sub-classes.
The criteria for a Sub-class 442 visa are set out in Part 442 of Schedule 2 to the Regulations. The primary applicant must satisfy all of the criteria prescribed by Part 442, including clause 442.222.
Clause 442.222(1) relevantly provides that:
Except in the case of an application made in relation to occupational training to be provided by the Commonwealth, a nomination in respect of the occupational training has been lodged and has been approved by the Minister.
Tribunal's evidence, findings and comments
The Tribunal had regard to the information provided by the applicant to the Department relating to her application for occupational training in Australia.
The Tribunal noted that the applicant:
a)did not provide any detail about the proposed training and whether it would enhance her skills, or about the capacity of the nominator to provide training;
b)did not provide any detail about why she believed the occupational opportunities available to Australian residents would not be adversely affected, except that she would return to Korea at the end of her training;
c)did not avail herself of the opportunity to present arguments to the Tribunal.
The Tribunal made the following findings and comments:
a)it was bound by the Federal Court decision in Kim v Minister for Immigration [2007] FCA 138;
b)it was not satisfied that there was any evidence before it that indicated that the applicant's nomination had been approved by the Minister. For that reason, it found that there was not an approved nomination for occupational training by Transworld and therefore the applicant did not meet subclause 442.222(1);
c)it acknowledged that prior to Kim, decisions to refuse nominations for occupational training were reviewable by the Tribunal (see Tvarkovsky v Minister for Immigration [2001] FCA 365). It considered the guidelines in PAM3 to determine whether the nomination could be approved;
d)it was not satisfied on the evidence before it that occupational training opportunities available to Australian citizens would not be adversely affected if the visa was granted.
These proceedings began with a show cause application filed on 25 March 2008. That application contains the three grounds reproduced in paragraph 14 of the Minister's submissions:
a)"Decisions not to approve visa 442 nomination or visa applications are merits reviewable only as part of merits review of subclass 442 visa application refusal decisions" ("Ground 1").
b)"the nomination issue must be assessed even though the nominator did not [seek] review of the decision" ("Ground 2");
c)"there is no evidence that the Tribunal requested further information from the nominator in conjunction with the nomination issues" ("Ground 3");
The application is supported by an affidavit which makes legal submissions and attaches a copy of the Tribunal decision. I accepted the affidavit as a submission. I have before me as evidence the court book filed on 5 June 2008.
The applicant did not appear when this matter was called, but the court was able to contact her by telephone. The applicant appeared today by telephone by leave from Melbourne. She indicated that she had anticipated a businessman, Mr David Jones, to appear today but no such person appeared. The applicant requested an adjournment to file additional material but I refused that application. The applicant appeared in person before me on 28 April 2008 when I gave directions in this matter. I gave the applicant until 16 June 2008 to file additional material but she has not taken up that opportunity.
The applicant's complaint is that the decision to refuse her nominator a nomination should have been reviewed and that the nominator should have been approached to provide additional information to the Tribunal.
The Minister submits that the application must fail on the basis of the decision of the Federal Court in Kim as follows:
Ground 1 has no merit. In Kim, Lander J stated that "the applicant's application to the Tribunal did not require it to review the decision of the Minister's delegate to refuse the [nominator's] nomination...no separate duty rested upon the Tribunal to inquire into the decision to refuse [the nominator's] nomination...[1]" and, further, "it was for the Applicant to establish that [she] came within the relevant criteria in the regulations: Abebe v The Commonwealth (1999) 197 CLR 510 at 576[2]".
The First Respondent submits that the Tribunal's finding that the Applicant did not meet subclause 442.222(1) of the Schedule 2 of the Regulations is, consistent with Kim, correct in law and one which this Court ought to follow. The First Respondent submits that Ground 1 should be rejected.
Ground 2 has no merit. In its reasons for decision, the Tribunal indicated that it was bound by the decision in Kim. The Tribunal acknowledged that prior to the decision of Kim, it was considered that decisions to refuse nominations for occupational training were reviewable by the Tribunal: Tvarkovsky v MIMIA [2001] FCA 375. The Tribunal, "for the sake of completeness", considered whether the nomination could be approved. It concluded that it could not be satisfied that the nomination could be approved and refused the nomination. No jurisdictional error could be said to arise as a result of this approach: Kang & Anor v Minister for Immigration and Citizenship & Anor [2007] FMCA 1373. The First Respondent submits that Ground 2 should be rejected.
[1] paragraph 33 of Kim
[2] paragraph 32 of Kim
I accept the Minister's submission that, on the authority of the binding Federal Court decision in Kim, that the Tribunal was not under any duty to review the decision of the Minister's delegate to refuse the nominator's nomination. Nevertheless, it is clear from the decision of the Tribunal that the Tribunal did consider what the position on the nomination would be if it had been permitted to review it. The Tribunal had invited the applicant to comment on, and provide additional information on issues relevant to, the nomination decision, presumably for that purpose. I refer to the letter dated 19 October 2007 appearing on at CB 48 and 49.
The applicant was also invited to attend a hearing before the Tribunal by letter dated 28 November 2007 (CB 52 and 53). She did not attend that hearing and the Tribunal was left without the benefit of any information she may have been able to provide about the nomination issue. Nevertheless, and contrary to the assertion in the application before the Court, the Tribunal did its best to consider the issue of the nomination subject to the legal strictures confronting it. No jurisdictional error is disclosed by that approach. The applicant's complaint that the Tribunal did not request further information from the nominator does not point to any jurisdictional error. That issue was dealt with by Raphael FM in this Court in Lee v Minister for Immigration and Citizenship [2007] FMCA 1822 at [13]. I agree with his Honour’s observations.
While the questions put to the applicant might more productively have been put to the nominator, there was no legal obligation on the Tribunal to put those questions to the nominator. It was for the applicant to satisfy the Tribunal of the issues upon which it needed to be satisfied for the purposes of the visa application.
This case illustrates the difficulties which the present state of the law concerning this class of visa has created. An applicant is unable to qualify for this class of visa without there being a nomination in place. Once an application for nomination is refused, a visa applicant cannot succeed. Nevertheless, the critical issue of the refusal of the nomination cannot be reviewed by the Tribunal. The Tribunal is left in the peculiar position of attempting to assess the nomination issue without being strictly entitled to do so. That is an entirely unsatisfactory situation and ought to be addressed by the Minister's Department[3].
[3] It effectively renders the entire review process an empty gesture. Moreover, there is a question (which was not addressed in this case) whether regulation 442.222(1) is valid because it imposes a visa criterion on an applicant that an applicant could never comply with. The criterion can only be met by someone else and the decision whether it has been met is made without reference to a visa applicant and without any right of review: cf Dai v Minister for Immigration [2007] FCAFC 199
Nevertheless, there is no jurisdictional error in the Tribunal decision. I agree with the Minister's submissions.
I will order that the application be dismissed.
Costs should follow the event in this case. The Minister seeks costs in the sum of $3,720. Scale costs would be $5,000. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,720.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 June 2008
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