Chebat v Minister for Immigration and Citizenship

[2007] FCA 1656

FEDERAL COURT OF AUSTRALIA

Chebat v Minister for Immigration and Citizenship [2007] FCA 1656

TONY CHEBAT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 981 OF 2007

ALLSOP J
2 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 981 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

TONY CHEBAT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	2 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Order 1 made on 9 August 2007 be set aside.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 981 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

TONY CHEBAT
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE:	2 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to set aside orders made on 9 August 2007 dismissing the appeal of the applicant, Mr Chebat, pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) for his non-attendance on that day, and should that application be successful, for the hearing of the appeal. (As to the earlier making of the orders, see [2007] FCA 1222.) On 5 September 2007, Mr Chebat filed a notice of motion seeking to set aside those orders.

2. On the return of the motion, I indicated to Mr Chebat that while I was prepared to accept that he was ill on the day of his hearing in August, he would have to persuade me that there was some point in the appeal.  To that end, I required him to file full written submissions on the appeal.  Having received those submissions, I listed the matter for argument, effectively full argument on the appeal.

3. The appellant applied for a Temporary Business Entry (Class UC) visa on 3 October 1997.  A delegate of the Minister refused the visa on 12 May 1998.  The written notification of that decision, which was sent to Mr Chebat, stated the following:

   The applicant is not the subject of an approved business nomination by an employer who is a pre-qualified business sponsor or a standard business sponsor.

   The applicant does not satisfy the requirements of the Migration Regulation 457(4) or 457(5).

   I have also considered the claims of the applicant against the criteria prescribed for the other visa subclasses within Class UC.  I find that the applicant does not satisfy the criteria for Subclass 456.

4. The applicant sought review by the then Migration Internal Review Office (“MIRO”) on 5 June 1998.

5. On 21 December 1998, MIRO affirmed the delegate’s decision.  Mr Chebat had identified his address in the review application as 39 Maxim Street, West Ryde.  The decision of MIRO appeared to have been sent to him at this address.  The findings of MIRO were based on the fact that the application for approval as a business sponsor by a Mr Mark Yazbeck trading as “Artistiling” had been refused.  The refusal of the application for approval by Mr Yazbeck, as “Artistiling”, made the refusal of the applicant’s visa application inevitable (unless he obtained another business sponsor), because the existence of an approved business sponsor was a prescribed criterion for the grant of his visa.  The reasons of MIRO stated that Mr Yazbeck had been informed about the administrative scheme for reconsideration of the decision about his application for business sponsorship, but he had not availed himself of this scheme.

6. Eight years later, on 3 March 2006, the Migration Review Tribunal (the “Tribunal”) wrote to the applicant advising him that it appeared that the MIRO decision may not have been properly notified to him and that his application to MIRO would be taken as an application to the Tribunal.  The letter contained the following:

   The Department of Immigration and Multicultural and Indigenous Affairs has provided the Tribunal with a copy of all documents which they consider to be relevant to your review.  You should provide any documents or written arguments you wish the Tribunal to consider.

   As the Tribunal has not received an updated application form, it would be grateful if you could completed [sic] the enclosed ‘Change of Address’ form so that the Tribunal has your current contact details. If you wish to appoint a representative or authorised recipient, could you please complete the enclosed “Appointment of Representative/Authorised Recipient’ form.

7. On 10 March 2006, the Tribunal wrote to the applicant under s 359A of the Migration Act 1958 (Cth) in the following terms:

   …
   INVITATION TO COMMENT ON INFORMATION

   I am writing about your application to the Tribunal for review of decision on a Temporary Business Entry (Class UC) visa.

   The Migration Act 1958 (the Act) contains provisions intended to ensure both a fair and speedy review process.  These include opportunities for review applicants to respond to material before the Tribunal, as well as limits on further opportunities if there is a failure to provide comments within a specified period.

   Section 359A of the Act states that the Tribunal must explain, and invite comment on, ‘particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’.

   You are invited to comment, in writing, on the following information:

   The case file 9802407T from the Department of Immigration and Multicultural Affairs discloses that a decision was made on 12 May 1998 to reject the application made by Artistiling for approval as a business sponsor.

   The basis upon which you had applied for the visa is that you would be employed by an approved business sponsor.  Without there being an approved business sponsor, the visa criteria cannot be met.

   Your written comments should be provided within 28 calendar days of the date of notification of this invitation.  As this letter has been posted, you will be considered to have been notified of this invitation to comment 7 working days after the date of this letter.   Please note that ‘working days’ do not include weekends or public holidays.

   If you are unable to provide comments within this period, you may request in writing that you be allowed additional time in which to respond. Such a request would need to include reasons for the extension and to be received before the end of the above period.  The Tribunal will consider any request for an extension carefully, and advise you, in writing, whether an extension of time has been granted.

   If the Tribunal does not receive any comments within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your comments or to invite you to appear before the Tribunal.

   Please telephone me if you have any questions.

   …
   [emphasis in original]

8. Thereafter, there were a number of conversations between Mr Chebat and officers of the Tribunal.  In one of the records of such conversations, it was recorded that Mr Chebat indicated that he had been contacted by the Minister’s Office and he wanted to deal with the Minister’s Office not the Tribunal.  He replied that he had received the letter of 10 March 2006 which I have set out above.  The note of a conversation on 20 March 2006 contained the following record of conversation:

   I remind him that there’s a deadline for that, he was asking whether its 14 days. I replied that he should read the letter very clearly as it is stated there. I read to him that its 28 days + 7 working days as the letter is posted (straight from the paragraph of the s 359A letter in file) & suggest he may choose to seek legal advise [sic] or from Migration Agent.

9. On 13 April 2006, Mr Chebat sent a letter to the Tribunal asking for an extension of time of another 28 days, if possible.  He set out his reasons as: (a) not having gathered all information and documents that he needed, (b) the company that sponsored him back in 1998 could no longer sponsor him at this time, (c) therefore he was organising another sponsor and (d) his immigration agent needed more time as this was a new “dealing” for him.

10. On 20 April 2006 (one week after the date of the letter requesting an extension), the applicant called the Tribunal and spoke to an officer, asking whether his extension of time had been approved.  He was told that there was no request on file and he was asked to resend the request.  He did this by facsimile on 21 April 2006 (the first request having been sent by post on 13 April 2006).

11. The request for an extension of time was not granted.  However, on 1 May 2006 the applicant was sent a letter by way of invitation to appear before the Tribunal on 30 May 2006.  This hearing was, of course, considerably beyond the original 28 days in the letter of 10 March 2006.  It in effect gave an additional 28 days (as Mr Chebat had requested) for him to organise his submissions and affairs.

12. On 4 May 2006, Mr Chebat once again spoke to an officer of the Tribunal.  He asked whether he should apply for a new sponsor and was told that he should seek legal advice on the issue.  The applicant once again asked for an extension of time.

13. Mr Chebat declined to attend the hearing.  The Tribunal decided the matter in his absence.  It concluded that because he lacked an approved sponsor his application for a visa was bound to fail.  It should be noted that when the hearing commenced on 30 May 2006 the applicant did not appear.  The Tribunal instructed an officer to contact the applicant and enquire why he had not appeared.  The applicant said that he could not see any use in attending the hearing because he had not been given an extension of time.

14. Before the Federal Magistrates Court the applicant’s grounds of application were as follows:

    1.The MRT did not apply the law correctly.

    2.The MRT erred in law by not granting the applicant an extension of time to respond and comment on information that the Tribunal considered would be the reason, or part of the reason for affirming the decision under review.  The applicant was made aware that the first respondent made an error of law regarding this application and the decision which was made sometime in 1998.  The Tribunal breached the law of natural justice and procedural fairness by not giving the applicant a copy and an explanation and reasons as well as an address for his previous sponsor, namely Artistiling.

    3.Based on the length of time from 1998 until now the applicant cannot rely on a letter issued to him some eight (8) years after a decision was made and the applicant correctly advised the officer of the Tribunal that an extension of time is important to locate Artistiling or another sponsor.

    4.The MRT erred in law by not replying to the letter sent by the applicant and the reason for the Tribunal’s decision not to grant the extension of time. The Tribunal does not have the right to take the view that it was open to the visa applicant to obtain a new sponsor in any case.  Even the decision does not reveal a detailed statement of the conversation as the applicant stated to the Case Officer that he suffers physically and has been under medical treatment and the Tribunal failed to meet his expectation as to the grant of extension of time.

15. The Federal Magistrate dismissed the application.  The primary consideration dealt with by the Federal Magistrate was the claim that the refusal for an extension of time to provide information was a failure to give a legitimate opportunity to deal with the issue raised in the letter.  That complaint was the substance of the complaint made in the submissions to me by Mr Chebat.  It lay at the heart of the terms of the notice of appeal from the orders of the Federal Magistrates Court which were:

    1.The Migration Review Tribunal incorrectly applied the law.

    2.MRT ignored important part of Applicant’s circumstances.

    3.It was not open to the Tribunal, to make a decision without giving the applicant the opportunity to deal with the matter especially regarding first sponsor’s refusal and the loss of documents, in reference to green book and missing documents listed on page 1 of the green book.

16. The Federal Magistrate took the view that a fair passage of time had been given for the provision of documents in all the circumstances.  This was especially so given that the hearing which Mr Chebat could have attended took place after the expiry of the additional period of time requested by him.

17. I see no error in the approach of the Federal Magistrate in concluding as he did that there had been compliance with s 359A and that Mr Chebat had been afforded adequate time to deal with the invitation made on 10 March 2006.

18. Mr Chebat could have attended the Tribunal with such information as he had, and sought an adjournment if he wished.  He gave no satisfactory explanation before the Federal Magistrate in his affidavit as to what steps he had taken to deal with the lack of sponsorship of his erstwhile business sponsor.  In my view, there is no error disclosed in the approach and reasons of the Federal Magistrate.

19. In all the circumstances the orders that the Court will make are as follows:

    1.Order 1 made on 9 August 2007 be set aside.

    2.The appeal be dismissed.

    3.The appellant pay the first respondent’s costs.

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

Associate:
Dated:       2 November 2007

The Appellant appeared in person.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 October 2007
Date of Judgment:	2 November 2007