Chand v Minister for Immigration
[2005] FMCA 697
•31 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHAND v MINISTER FOR IMMIGRATION | [2005] FMCA 697 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a grant of a Temporary Business Entry (Class UC) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1999 (Cth), reg.1.20A, 1.20B, 1.20D Item 1223A(3)(d)(i) of Sch 1, subcl.457.223(4) of Sch 2
Migration Act 1958 (Cth), ss.31(1), 31(3), 359A
Migration Amendment Regulations 2002 (No. 10) (Cth), cl.3, Sch 2 Part 3 Item 2331
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | PREM CHAND |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2907 of 2004 |
| Delivered on: | 31 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 19 May 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondent: | Mr D Jordan |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2907 of 2004
| PREM CHAND |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 10 December 2004 for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 3 September 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 27 March 2003 that the visa applicants are not entitled to the grant of a Temporary Business Entry (Class UC) visa.
Background
Mr Prem Chand (the primary applicant), stated he was a national of Fiji who was born on 19 July 1952. He applied for a Temporary Business Entry (Class UC) visa on 14 March 2003 (Court Book pp.1-8) (“CB”). Mrs Bindula Wati Chand, born on 6 July 1959; Mr Praneil Chand, born on 14 May 1982; Mr Roneil Chand, born on 10 July 1983 and Miss Maashniel Preeti Chand, born on 24 July 1984, claimed to be nationals of Fiji and were included on the application of Mr Prem Chand as secondary applicants.
The primary applicant entered Australia on a subclass 560 Student visa on 5 August 1998. The primary applicant’s last student visa expired on 15 March 2003 and subsequently he held a bridging visa granted on the basis of an application for a visa that is the subject of this review. The application was made on the basis that the primary applicant would be employed by Firstpart Auto Pty Ltd as General Manager. The delegate stated that the visa was not granted on the basis that the proposed employer had not been approved as a business sponsor (CB pp.54-59).
The Tribunal held a hearing on 3 August 2004 at which the primary applicant and his spouse gave evidence. They stated that their representative had not advised them regarding the decision of the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) regarding the business sponsorship, or the application to the Tribunal and they had only received this information when they gained access to the Tribunal’s file in early 2004. The primary applicant stated that he was in negotiations with proposed employers regarding an employment contract. He claimed had not been able to finalise this matter earlier because of family circumstances. No application by a proposed employer was currently before the Department (CB p.92).
The Tribunal’s findings and reasons
Mr D Jordan of Counsel, appearing for the respondent, prepared written submissions prior to the hearing and provided a brief summary of the proceedings before the Tribunal which I have adopted as follows:
a)The primary applicant applied for review by the Tribunal of the delegate’s decision on 22 April 2003 (CB pp.61-66). The effect of the application for review was to assert that Firstpart Auto Pty Ltd ought to have been approved as a business sponsor.
b)On 23 February 2004 the Tribunal received notice from Firstpart Auto Pty Ltd that it had decided to withdraw its sponsorship (CB p.70). The letter resulted in the discontinuation of the Tribunal’s proceedings concerning the application to review the decision not to approve Firstpart Auto Pty Ltd as a business sponsor.
c)On 27 February 2004 the Tribunal wrote to the primary applicant, pursuant to s.359A of the Migration Act 1958 (Cth) (“the Act”), inviting him to comment on the withdrawal by Firstpart Auto Pty Ltd of its application for review of the decision to refuse approval as a business sponsor. The letter notified the primary applicant that this was relevant to his review because, without an approved business sponsor, he could not meet the criteria for the grant of a visa (CB pp.71-72).
d)By letter dated 23 March 2004, the primary applicant responded to the Tribunal’s invitation to comment pursuant to s.359A of the Act. The primary applicant indicated that he was going to find another sponsor (CB p.73).
e)The primary applicant and his wife participated in a hearing before the Tribunal on 3 August 2004. It was confirmed at the hearing that no application for business sponsorship by a proposed employer of the primary applicant had been made (CB p.92).
f)On 3 September 2004 the Tribunal made a decision affirming the delegate’s refusal of the applicants’ visa application. The decision was based on the absence of any evidence that the primary applicant was sponsored by a pre-qualified business sponsor or a standard business sponsor as required by subclause 457.223(4) of the Regulations (CB pp.88-93).
The primary applicant was seeking a subclass 457 (Business (Long Stay)) visa. The ground on which the visa application was made was sponsorship by a business operating in Australia. No claim had been made in respect of any other ground and based on the material before the Tribunal, the Tribunal found that the primary applicant did not meet any of those other grounds. To qualify for a subclass 457 (Business (Long Stay)) visa on the basis of sponsorship by a business operating in Australia is that the proposed employer must be a pre-qualified business sponsor or a standard business sponsor under subclause 457.223(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The application for approval as a business sponsor made by Firstpart Auto Pty Ltd was refused by the delegate on 27 March 2003. Firstpart Auto Pty Ltd applied for a review of that decision but withdrew their application in February 2004. There was no evidence of an approved business sponsorship by a proposed employer for the primary applicant. The Tribunal found that the primary applicant failed to satisfy subclass 457.223 and no evidence had been provided to demonstrate that any of the secondary applicants satisfied the requirements of 457.223 (CB p.93).
Application for review of the Tribunal’s decision
On 23 September 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following ground:
1.The Tribunal at Par 19 mislead the applicant that a prospective new employer may lodge an application to DIMIA for the approval of a business sponsorship. Following 01 March 2003 changes only previous employer at the time of application can be the employer for the approval of business sponsorship (see subparagraph 1223A(3)(d)(i)) at the time of ‘the Tribunal’ decision. The Tribunal did fall into jurisdictional error in the course of the above finding.
The primary applicant appeared at a directions hearing on 8 October 2004 and consented to Short Minutes of Order requiring the applicant file and serve any affidavit containing additional evidence to be relied upon including transcript of the Tribunal hearing by 10 December 2004 together with any amended application giving complete particulars of each ground of review to be relied upon by the same date.
On 10 December 2004 the primary applicant filed an amended application in the same terms as his original application filed on
23 September 2004. No additional material in the form of particularisation or contained in an affidavit was filed.
Legislation
Section 31(1) of the Act states:
“There are to be prescribed classes of visas”.
Section 31(3) of the Act provides for the Regulations to prescribe criteria for a visa or visas of a specific class. Division 1.4A of the Regulations deals with the approval of business sponsors. The Division provides for applications for approval as a business sponsor. The nominations by business sponsors for activities to be undertaken by prospective holders of subclass 457 (Business (Long Stay)) visa and approval of those applications and nominations is contained in Regulation 1.20A.
Regulation 1.20D of the Regulations empowers the Minister of Immigration & Multicultural & Indigenous Affairs (“the Minister”) to approve or reject an application for approval as a pre-qualified business sponsor or as a standard business sponsor. The Minister is required to approve the application if satisfied of certain matters specified in reg.1.20D(2). Regulation 1.20B, at the time of the application (Migration Regulations 1994 issued at 1 March 2003), included the following definition:
“Pre-qualified business sponsor means a person approved as a pre-qualified business sponsor in accordance with regulation 1.20D.
Standard business sponsor means a person approved as a standard business sponsor in accordance with regulation 1.20D.”
Subclass 457 appears in Schedule 2 of the Regulations. Clause 457.111 gives “pre-qualified business sponsor” and “standard business sponsor” the same meaning as in Div 1.4A of the Regulations. Clause 457.223(1) provides that, at the time of the decision, the applicant must meet the requirements of subclass (4) or certain other sub-clauses. The only sub-clause relevant to the applicant’s case is subcl.457.223(4). It provides as follows:
(4)The applicant meets the requirements of this subclause if:
(a)the activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer; and
(b)the employer is:
(i) a pre-qualified business sponsor or standard business sponsor; and
(ii) the employer mentioned in subparagraph 1223A(3)(d)(i); and
(c)the applicant is nominated, in accordance with approved form 1068, in relation to the activity by the employer
Subparagraph 1223A “temporary business entry (Class UC)” provides as follows:
(3)(d)If an applicant seeks to satisfy the primary criteria for the grant of a Subclass 457 (Business – Long Stay) visa on the basis that the applicant satisfies the requirements of subclause 457.223(4) of Schedule 2, the application must:
(i) specify the employer by whom the applicant proposes to be employed for subclause 457.223(4)
Subclause 457.223(4)(b) was amended by the Migration Amendment Regulations 2002 (No. 10) (Cth) Cl.3 and Schedule 2 Part 3 Item [2331] which came into effect on 1 March 2003. The amendments are relevant to this matter as the delegate’s decision to refuse to grant a visa was made on 27 March 2003.
Applicant’s submissions
The primary applicant is a self represented litigant who appeared with his wife, who was the secondary applicant in the original visa application although she is not a party to the present application before this Court. The primary applicant attended a directions hearing on
8 October 2004 and as part of the orders made on that date, the applicant was required to file and serve any written legal submissions and list of authorities to be relied upon fourteen days prior to the hearing. This order was not complied with.
At the hearing the primary applicant was invited to make oral submissions in support of his application. The primary applicant indicated that he sought leave of the Court to read from a prepared statement. This request was granted. The primary applicant, in effect, re-stated the grounds pleaded in his original application and repeated in the amended application. No new or significant material was presented by the primary applicant.
Respondent’s submissions
Mr D Jordan of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The primary applicant proceeded upon an amended application for review filed on 10 December 2004. The sole ground for review was in the following terms:
“The tribunal at Par 19 mislead the applicant that a prospective new employer may lodge an application to DIMIA for the approval of a business sponsorship. Following 01 March 2003 changes only previous employer at the time of application can be the employer for the approval of business sponsorship (see subparagraph 1223A(3)(d)(i) at the time of ‘the Tribunal’ decision. The tribunal did fall into jurisdictional error in the course of the above finding.”
b)This ground was misconceived. Firstly, there was no basis for the assertion that the Tribunal misled the applicant. Secondly, the Tribunal’s decision was not based on any finding which turned on the interpretation or application of Item 1223A(3)(d)(i) of Schedule 1 to the Regulations. Thirdly, the stated effect of Item 1223A(3)(d)(i) was inaccurate because that provision merely states that the visa application must specify the employer by whom the primary applicant proposes to be employed, for the purposes of sponsorship in subclause 457.223(4) of Schedule 2 to the Regulations.
Reasons
The delegate of the Minister, Mr George Kyriazis, in his decision dated 27 March 2003 set out under the heading “5.1 Background” the following information:
“On the prescribed application form, 1066, the applicant stated that s/he was applying as a person sponsored by an Australian business. The visa application was accompanied by an application for approval as a business sponsor by a business operating in Australia. A decision has been made to refuse the application for approval as a business sponsor. The sponsoring business has not been approved as a business sponsor.”
(CB p.57)The prescribed criteria for a Temporary Business Entry (Class UC) subclass 457 (Business (Long Stay)) visa in subclause 457 are set out at Part 457 of Schedule 2 to the Regulations. Amongst the criteria to be satisfied at the time of the decision was reg.457.223 which states that the applicant must meet the requirements of subclauses (2), (3), (4), (5), (7), (7A), (8) or (9). The delegate assessed each one of these in turn but the relevant subclause for the primary applicant was (4) and the following conclusion was drawn:
“An employer who is an approved business sponsor for an activity has not nominated the applicant. Therefore, the applicant does not meet the criteria of this subclause.”
(CB p.58)In the course of the primary applicant’s submissions in reply, the primary applicant stated that Firstpart Auto Pty Ltd was an approved sponsor. However, when the applicant was asked whether he had any written evidence he could provide the Court in support of this submission, he did not respond and no evidence was presented to the Court. Mr Jordan assisted the Court by pointing to a number of letters appearing in the Court Book including a letter dated 23 February 200[4] from Firstpart Auto Pty Ltd to the Tribunal indicating Firstpart Auto’s withdrawal of sponsorship (CB p.70) and a letter dated
27 February 2004 from the Tribunal to the primary applicant indicating the Tribunal had finalised the withdrawal on 27 February 2004. In my opinion, this clearly indicated that Firstpart Auto Pty Ltd had not held any form of sponsorship status in the period between the time the delegate made his decision and the Tribunal finalised the company’s withdrawal of sponsorship application. When the above letters, together with the primary applicant’s letter to the Tribunal dated
23 March 2004 requesting an extension of time (CB p.73) and the Tribunal’s letter dated 7 April 2004 rejecting the applicant’s request, were referred to the primary applicant, he indicated that he did not wish to pursue this submission any further.
The facts as set out in the delegate’s decision and considered in the Tribunal’s decision clearly establish that at the time of the delegate’s decision on 27 March 2003 there was no sponsorship arrangement in place. The company originally nominated, Firstpart Auto Pty Ltd, chose to challenge that decision for almost twelve months but withdrew their application completely on 23 February 2004. No other company was nominated as a sponsor during that period. This was confirmed by the primary applicant in a letter to the Tribunal requesting an extension of time to locate a suitable sponsor (CB p.73). This was not disputed in the grounds of appeal to the Tribunal or this Court. Nor has the primary applicant presented any oral submissions to the Court in respect of this issue.
The sole ground of review was the allegation that the Tribunal in paragraph 19 of its decision misled the primary applicant. The reference to the “Migration Amendment Regulation 2002 (No. 10) (Cth)” was misconceived as those amendments are not referred to in paragraph 19 of the Tribunal’s decision nor do they, in any way, impact on the statements made by the Tribunal in that paragraph. The finding of a new or substituted sponsor by the primary applicant would not be relevant to the decision of the delegate on 27 March 2003. The Tribunal noted that information was provided to it by the primary applicant during the oral hearing and in a letter requesting an extension of time. However, the pursuing of that issue would have no retrospective effect on the prior decision of the delegate.
The primary applicant in these proceedings is a self represented litigant and in these circumstances the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. After reading the decision and considering the material contained in the Court Book which set out the history of the matter, on the face of the documents it was not apparent that the Tribunal made an error. Even if paragraph 19 could be construed in the manner that the primary applicant had pleaded, it was difficult to see that that would result in a jurisdictional error in the decision making process of the Tribunal. The Regulations which were required to be applied to this matter were straightforward and not contentious. At the relevant time the criteria set out by those Regulations was not met by the applicants. The failure to comply with the Regulations were clear and uncontroversial. The Tribunal’s review and analysis of the situation was clearly set out in its decision and cannot be disputed. The facts of the requested review, the circumstances of the rejection of Firstpart Auto Pty Ltd as a business sponsor and the subsequent withdrawn by that organisation before the review had taken place were not in dispute.
Conclusion
For the reasons set out above, I have been unable to identify any jurisdictional error made by the Tribunal and the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 31 May 2005
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