Dulman v Minister for Immigration
[2014] FCCA 2146
•10 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DULMAN v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2146 |
| Catchwords: MIGRATION – Application to review Migration Review Tribunal decision – grounds include applicant did not receive notice of refusal - review of visa application should also act as review of another separate application – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.360, 362, 474, 494C Migration Regulations 1994, rr.5.19(3), 5.19(7), subclass 187, 187.223, 457, 857.221 |
| Minister for Immigration and Multicultrual Affairs v Yusuf (2001) 206 CLR 323; Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; Craig v South Australia [1995] HCA 58; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; SSJDS v Minister for Immigration and Citizenship and Another [2012] FCAFC 27. |
| Applicant: | FRITZ ALIPALA DULMAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 167 of 2014 |
| Judgment of: | Judge Willis |
| Hearing date: | 7 August 2014 |
| Date of Last Submission: | 7 August 2014 |
| Delivered at: | Cairns |
| Delivered on: | 10 October 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Self-Represented |
| Counsel for the First & Second Respondents: | Ms Stoker |
| Solicitors for the First & Second Respondents: | Clayton Utz |
ORDERS
That the amended application for Judicial Review filed 8 April 2014 is dismissed.
The Applicant is to pay the First Respondent’s costs of and incidental to these proceedings fixed in the sum of six thousand, six hundred and forty six dollars ($6,646.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
BRG 167 of 2014
| FRITZ ALIPALA DULMAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) made on 24 January 2014 affirming a delegate’s earlier decision to refuse to grant Fritz Alipala Dulman (“the applicant”) a Regional Employer Nomination (Permanent) (Class RN) Visa.
At the time of the application 29 July 2012, Class RN contained one subclass being subclass 187 (Regional Sponsored Migration Scheme) (“187 Visa”). He was granted a temporary bridging Visa A (Class W.A., subclass 010) whilst the department considered the application.
The applicant applied to satisfy the primary criteria for a grant of a subclass 187 Visa in the temporary residence transition stream.[1] This stream is designed for subclass 457 Visa holders who have worked for their employer for at least the past two years, and that employer has offered them a permanent position in the same occupation. The applicant is the nephew of his employer (or more particularly, the nephew-in-law).
[1] Bundle of relevant documents filed on 28 April 2014 (“BRD”), page 135.
As part of the requirements for the grant of this Visa, the applicant needed to satisfy criteria which arise from sub clause 187.223 of schedule 2 to the regulations. That clause requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated person under r. 5.19 (3) of the Regulations (“the nomination application”) and also for the Minister to have approved the employee’s nomination.
The delegate found that the applicant did not meet the cl 187.223 because the nomination by the applicant’s proposed nominating employer, C Ashton and GJ Ashton, had been refused by the delegate on 11 February 2013. The nominating employer was notified of the delegate’s decision by email on 11 February 2013.
Background
In this review, it is useful to understand that there have been three separate decisions in the broader context leading to this review.
(a)The first is the decision in the file number BCC2012/837519 that related to a nominated person different from the applicant; it related to Mr Joel Dulman (not Fritz Dulman). This decision is referred to in the applicant’s material. It is not relevant, though the applicant seeks to rely on this decision to point to error in his application for judicial review.
(b)The second decision is BCC2012/841818 which is the file number for the employer nomination for the applicant (“the nomination application”). It was made by Mr Fritz Dulman’s employer C Ashton and G.J. Ashton. It was refused on 11 February 2013. After that decision was made, there was no application for a review sought and the application was not withdrawn. That decision is not the subject of this review, though the applicant seeks to re-visit this decision as part of this judicial review.
(c)The third decision is BCC2012/904967, which refers to the 187 Visa which was refused (the 187 visa application). It was reviewed by the Tribunal, refused and now is before this Court as the subject application for judicial review.
In the applicant’s Visa application he appointed an authorised recipient, Mr Geoffrey Ashton who, as the Court heard during this hearing, is an Uncle in law of the applicant, to be the authorised recipient to receive correspondence on his behalf.
On 21 August 2012 the Department sent a letter to Mr Ashton in which it acknowledged receipt of the 187 Visa application.[2] On 30 January 2013 further correspondence was sent to Mr Ashton asking the applicant to provide additional information to support the Visa application.[3]
[2] BRD, pages 157-161.
[3] BRD, pages 148-156.
Importantly, shortly after this letter, on 11 February 2013 the Department wrote to the authorised recipient Mr Geoffrey Ashton regarding the employer’s nomination application advising it had been refused[4]. The letter was sent by email. As will be seen in these reasons, the applicant alleges that this letter was not received.
[4] BRD, pages 170 to 171.
On 25 February 2013 Mr Ashton the authorised recipient, wrote to the Department on behalf of both Mr Fritz Dulman and Mr Joel Dulman in respect of their visa applications to request a 28 day extension of time to complete the request for more information.[5]
[5] BRD, page 147.
On 1 March 2013 the department wrote to the authorised recipient via email at the relevant email address explaining that on 11 February 2013 the associated nomination application under the sponsored migration scheme application was refused, and explaining that the consequence of this refusal is that his visa application dated 29/07/12 does not satisfy subclause 187.233.
The letter went on to explain that:
There are two options you can now take in relation to this decision: 1. Withdrawing your application: As there is no possibility of your application being approved you may wish to withdraw your application, if so you must advise the department in writing. By withdrawing your application you give up any rights to appeal with the Migration Review Tribunal, or 2. Refusal of Application: If you do not respond to this letter within 28 days and the application has not been withdrawn then the application will be refused. If your application is refused you may be able to appeal the decision with the Migration Review Tribunal. A request for a refund will not be approved.[6]
[6] BRD, pages 144-146.
On 5 March the applicant wrote to the department.[7] The letter was addressed for urgent attention. With regard to withdrawing the application, the applicant wrote: after dedicating the past 6 years and 5 months of my life serving Australia I will not be withdrawing my RSMS TR to PR onshore 187 Visa application.
[7] BRD, pages 142-143.
The applicant’s letter also states under the heading “inherent admission of my application success” that I note and understand that my Visa application failed for one reason only: Reason: the nomination appointment has not been approved.
The applicant also stated under the heading “denial of natural justice”:
On 28/02/2013 my sponsor/nominator lodged an appeal with the MRT asking for a review of the sponsor/nomination
The 28/02/2013 was the first day available for our required health assessment the minister advised to ask for an extension of time.
A fax signed by Joel Dulman and Fritz Dulman requesting an extension of 28 days was sent to you on 25/02/2013 you ignored the request.
On 28/02/2013 my sponsor/nominator appealed to the MRT the decision to refuse the sponsor/nomination.
Your decision on my visa application is automatically stayed until the review by the MRT is completed estimated time 15-17 months.
If the MRT appeal is not successful there here (sic) will be further appeals to the Federal and High Court and human rights commission Geneva.[8]
[8] BRD, page 142.
The reference to the appeal lodged by the employer highlighted in the 3rd last paragraph of the abovementioned letter, related only to the associated employer’s nomination application concerning Mr Joel Dulman. No appeal was lodged in relation to the nomination application concerning Mr Fritz Dulman [9]. It seems that the applicant did not apprehend that the employer had failed to appeal the refusal of the associated employer’s nomination application regarding his 187 visa application. As appears later, the applicant attempts to address this oversight by submitting that:
a)the review for another applicant Joel Dulman also applied to the review for Fritz Dulman; or in the alternative,
b)the review for the 187 Visa application should also act as an a review/appeal of the refusal of associated employers nomination application decision.
[9] BRD, pages 22 and 40.
In a Decision Record dated 5 July 2013 the Department refused the Visa Application for the applicant stating that the criteria for the grant of a Regional Employer Nomination visa are not met by the applicant.
The reasons indicated were Under the migration law, a visa cannot be granted unless the applicant meets the relevant legal requirements that are specified in the Act and the Regulations. The legal requirement in clause 187.233 in Schedule 2 to the Regulations has not been met by the applicant on the date I made my decision. After setting out the provisions of clause 187.233, the letter continued:
On 11/02/2013 the nomination lodged by C ASHTON & G.J ASHTON, being the nomination referred to in paragraph 187.233(1), was refused by a delegate of the Minister for Immigration and Citizenship.
As the appointment has been refused, criterion 187.233 (3) is not met.
As a result, I am not satisfied that the requirements of criterion 187.233 have been met.
During my assessment of your application, I provided you with a reasonable opportunity to advise the department on how you would like to proceed with this application on 01/03/2013. On 05/03/2013, I received a reply from you that you will not be withdrawing your visa application.
I have assessed your claims under the Direct Entry stream. Under regulation 187.233 the position to which a visa application relates must have been nominated and approved under sub regulation 5.19(3), I am not satisfied that you meet regulation 187.233.
I have also assessed your claims under the Agreement stream. As the correlating position was not nominated by an employer in accordance with a labour agreement, I am not satisfied that you meet the requirements of regulation 187.242.
Therefore, I refuse your application for a Subclass 187 visa.
Decision
As clause 187.233 is not met by the applicant, I find the criteria for the grant of a Regional Employer Nomination visa are not met by the applicant.
Therefore, I refuse the application by the applicant for a Regional Employer Nomination visa.[10]
[10] BRD, pages 139 – 140.
On 18 July 2013 the applicant faxed an Application for Review to Migrant Review Tribunal to the MRT.[11] The accompanying letter from the applicant states at the top of the letter in handwriting faxed 45 pages and submission of representative of Applicant: Fritz Alipala Dulman.
[11] BRD, pages 74-82.
The accompanying letter quotes file number BCC2012/904967. The opening paragraph states, 1. Fritz Alipala Dulman has [sic] exhausted almost 7 years of his life training in the Philippines and serving Australia in the fishing industry. The letter continues the Minister has infringed s. 92 of the Constitution by refusing the Business Sponsorship, Authority: Cole v Whitfield (1988) 165 CLR 360 (‘Cole’) and later in the letter, the Minister refused the business C and GJ Ashton ABN 33 698 323 918 as a Sponsor-Nominator.
The application for review to the Tribunal attached to the letter is completed as showing the applicant Fritz Alipala Dulman.[12]
[12] BRD, page 76.
On 25 July 2013, the Migration Review Tribunal acknowledged the application, with letters addressed to Mr Ashton as the authorised recipient of the applicant, with documents enclosed for the applicant.[13]
[13] BRD, pages 62-72.
On 18 October 2013, the applicant was sent via Mr Ashton, the authorized recipient, an invitation to appear before the Tribunal.[14]
[14] BRD, pages 52-61.
On 27 October 2013 the applicant completed a “Response to Hearing Invitation.” The form indicated that the applicant would not be appearing at the hearing, but that his representative Mr Geoffrey John Ashton would appear.[15] The hearing proceeded, the applicant did not attend and Mr Ashton made submissions.[16]
[15] BRD, pages 50-51.
[16] BRD, pages 42-49.
On 9 January 2014 the Migration Review Tribunal sent by fax an Invitation to Comment on or Respond to Information regarding Mr Fritz Alipala Dulman, the applicant, in respect of the decision to refuse to grant the 187 Visa.
The letter states it was written regarding the review you made in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) Visa.[17] The applicant was invited to comment or respond to certain information raised by the Tribunal which would likely be the reason (or part of a reason) for affirming the decision under review, however, the letter stated that the Tribunal has not made up its mind about the information.
[17] BRD, pages 38-41.
The particulars of the information included:
a)that the applicant applied for a subclass 187 visa on the basis of being nominated by employer C Ashton & GJ Ashton under the Temporary Residence Transition Stream to fill the position of a fishing hand and that the department refused the approval on 29 February 2013.
b)that his employer had applied on 14 July 2012 for approval of the nomination and that the employer did not apply to the Tribunal for a review of the nomination refusal for him.
c)that each nomination refusal requires a separate review application to be lodged and a fee to be paid with that application within the prescribed time and only one review application was ever lodged and that was on 28 February 2013 in relation to Joel Dulman, not him. Only one was fee paid and that was in relation to Joel Dulman, not the applicant Fritz Dulman.
d)It was further explained why this information may be relevant to affirming the decision under review because one of the essential criteria for a subclass 187 visa is that the nomination in the application for approval must be approved at the time of the Tribunal’s decision as per clause 187.223 (2). Also, the information may lead the Tribunal to find that the nomination has not been approved, and that he therefore do not satisfy the requirements of clause 857.221. It also explained that as there is no evidence that he met the criteria under the Direct Entry Scheme, the Tribunal may find that he did not satisfy essential criteria for a subclass 187 visa, and the Tribunal may therefore affirm the decision under review.
On 10 January 2014 the records show that Mr Ashton, the authorised recipient telephoned the Tribunal saying amongst other thing, words to the effect the Tribunal is wrong when it says the application relates to Joel Dulman.[18]
[18] BRD, page 37.
Three other phone calls are recorded as being made from Mr Ashton on 13 January 2014 in which Mr Ashton stated words to the effect that the application for review of the visa application should also be understood as an application for review of the Nomination Decision.[19]
[19] BRD, page 31.
On 14 January 2014 the applicant lodged a submission in response to the invitation to comment on or respond to information dated 9 January 2014. The submission argued that:
a)his employer Mr Ashton had not received notice of the refusal of associated employer nomination decision, such that it could be the subject of an application for review; and
b)“I lodged an application for review in relation to the nomination refusal on 5 July 2013 MRT case number 1310129 tax invoice receipt NO: 100400 amount $1,604.00.”
On 24 January 2014 the Tribunal delivered its decision and reasons on the application for a review of the Visa Application.[20] [21]
[20] BRD, pages 19-22.
[21] BRD, pages 14-18.
The applicant lodged his application for a review of the Tribunal’s decision with the Federal Circuit Court on 26 February 2014. An amended application was filed on 21 March 2014 and another on 8 April 2014.
This hearing
This hearing was held in the Federal Circuit Court in Cairns. The material for each of the parties was read into the record. The applicant, who was self-represented, relied on all of the material filed to date including a third outline of submissions filed by leave at this hearing.
The written outline of submissions provided on behalf of the first respondent sets out the material relied upon. The respondent added to that list of documents a further affidavit of Lana Simone Kelly filed 4 August 2014 and a notice of dispute filed 30 July 2014 plus the outline itself. The other affidavit of Lana Simone Kelly was filed on 31 July 2014, and is also listed in the outline.
I have also considered the material contained in the bundle of documents.
The applicant appeared in the Court room with no documents at all. At the commencement of the hearing the Court queried with the respondent as to whether they had copies of their documents to give to the applicant so that he could be guided through them as the submissions unfolded. As requested, Ms Stoker of Counsel and her instructing solicitor willingly provided copies of all of their documents to the applicant.
An interpreter was organised for the applicant. At the commencement of the hearing the applicant indicated that he understood some English and that he was prepared to proceed on the basis that he would just indicate to the Court if he needed the assistance of an interpreter. However it seemed to the Court that the preferred way to proceed was to have a continuous stream of interpretation being provided to the applicant of every word spoken by either Counsel for the respondent or the Judicial Officer. This is how the matter was conducted throughout the day. This included reference to each and every annexure or the bundle of documents.
At the commencement of the hearing it was also apparent that the applicant knew very little about his own material and he informed the Court that his uncle, Mr Geoffrey Ashton, had prepared all of the documents on his behalf. On several occasions, through the interpreter, the Court asked the applicant about his submissions or the basis of his review application and it was noted that the applicant kept turning to his uncle, who was sitting in the gallery, for assistance. The uncle, Mr Geoffrey Ashton is also referred to in the applicant’s material as his nominated employer and the person whom the applicant nominated as an authorised recipient.
Given that after various questions had been asked about the documents and the applicant appeared to have little understanding of his own documents, and given the uncle had been calling out answers to questions from the gallery of the Court on behalf of the applicant, the Court invited the Uncle to sit at the bar table and act as a McKenzie friend for the applicant. The Court explained to the uncle that he could not be an advocate for the applicant but that he could help him with his documents and point to the relevant affidavits, letters etc. that were being referred to. The uncle stated his full name for the record as Geoffrey Ashton and informed the Court that he was not a lawyer or a migration agent, and he was now retired having been a fisherman for over 60 years.
The applicant when asked about the grounds for his review really had nothing to add to his written material. I have had regard to all of his material filed and all three submissions.
Ms Stoker of Counsel for the respondent at the request of the Court, went slowly through her submissions with an interpreter interpreting all of her submissions and any comments or issues raised from the bench. At a point, the Court considered it would be time effective to email a copy of the written submissions to the interpreter so as to assist in the accurate interpretation of the submissions. This course was agreed to by the second respondent and was adopted.
Once or twice whilst the Uncle/McKenzie friend was assisting the applicant, and the respondent Counsel was making submissions through the interpreter, he made verbal interjections, and continued to do so despite the Court reminding the Uncle that was not his role. The Court had been making sure that the McKenzie friend showed the applicant the relevant documents as the submissions were being made and translated. Just prior to lunch, whilst Counsel was going methodically through her submissions via the translator, reference was made to exhibit LSK1 to the affidavit of Lana Simone Kelly, for the first respondent filed on 31 July 2014 annexing the transmission copy of the notification of refusal of associated employer nomination decision. At this point the Uncle/ McKenzie friend called out to the Court with agitation that the document was a fake. I reminded the Uncle/McKenzie friend that he was not an advocate. He again shouted out that the document was a fake. He then rose to his feet and announced loudly that he would not be remaining in a Court that accepted fake documents and that he would be leaving and the matter would be going to another Court.
As the Uncle/McKenzie friend approached the door of the Court room about to walk out, I requested that he return the documents that he was holding as they belong to the applicant. He refused this direction saying that “they are mine now” and left the Courtroom. The applicant, Fritz Dulman appeared to be wide eyed and shocked.
The Court then took a luncheon adjournment and directed that during the adjournment copies of all of the documents be again provided to the applicant. Counsel advised the Court after lunch that the applicant was once again in possession of all of the respondents documents. It seems that the documents removed by the McKenzie friend comprised the two affidavits of Ms Kelly, so copies were given to the applicant again.
Mr Fritz Dulman remained for the balance of the hearing, and the matter proceeded carefully with a continuous translation of everything said being provided, for the remainder of the afternoon.
Tribunal decision
The Tribunal affirmed the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa stating[22]:
Having considered the evidence before it, the Tribunal finds that the applicant does not satisfy cl.187.223(2) because the Minister has not approved the nomination. No application for review of the nomination refusal in relation to the applicant was lodged with this Tribunal. Therefore, the Tribunal finds the applicant does not meet cl.187.223 at the time of decision.
[22] BRD, page 22, paragraph 22.
The Tribunal did not accept that the nominating employer did not receive the refusal of nomination for the applicant which was emailed on 11 February 2013 and rejected the submission that service was specified as being by post stating in part[23]:
On 14 January 2014 the Tribunal received comments from the applicant. The applicant claims he did not receive notification of the nomination refusal made on 11 February 2013. The letter also stated: He claims that his nominating employer did not receive notification of the nomination refusal in relation to him. He claims that the application for review to the Tribunal lodged on 19 July 2013 should be treated as an application for review of both the nomination refusal and the visa refusal. He applied for review in his capacity as the visa applicant. He claims that he satisfies all the relevant criteria for the visa.
The Tribunal has considered the applicant’s claims referred to in the above paragraph. The Tribunal does not accept that the nominating employer did not receive notification of the nomination refusal in relation to the applicant.
On the nomination application form, the employer nominated the contact person and authorised recipient as Geoffrey John Ashton. Under the question ‘Does the contact person agree to this Department communicating via email and/or fax?, the nominating employer stated ‘yes’ and provided an email address and fax number. The Department consequently sent the decision notice to Mr Ashton by email, as it was obliged to do under the Act. The Department was not permitted under the Act, to send the nomination refusal to the visa applicant Mr Fritz Dulman. The Tribunal finds that in accordance with s.494C of the Act, the nominating employer is taken to have been correctly notified of the delegate’s decision by email on 11 February 2013.
If an applicant has nominated an “authorised recipient”, the Minister must give the authorised recipient, instead of the applicant, any documents that the Minister would otherwise have given to the applicant: S 494D (1) of the Act. If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the applicant: S 494 (2) of the Act.
[23] BRD, pages 21 and 22, paragraphs 17-20.
The Tribunal also did not accept that an application for a review of a Refusal of Nomination Decision of another visa applicant, Mr Joel Dulman, should also act as a review of the employer nomination decision for Fritz Dulman and further the Tribunal also did not accept that the Application for Review of the visa application lodged by the applicant should also act as a review of both the nomination refusal and the visa refusal.
In its reasons, the Tribunal confirmed that one fee had been paid stating:
On 28 February 2013 the proposed employer lodged an application for review in relation to the nomination refusal for a different visa applicant, Mr Joel Dulman (MRT case number 1310129). Attached to the review application was a refusal letter in relation to the nomination for Joel Dulman. Only one application review was lodged and one review fee was paid. However, no application for review was lodged in relation to nomination refusal for the applicant Mr Fritz Dulman. On 19 July 2013 an application for review was lodged in relation to the visa refusal for the applicant[24].
The Tribunal does not accept that the application for review of the visa refusal lodged on 19 July 2013, should be treated as an application for review of both the nomination refusal and the visa refusal. Each nomination refusal requires a separate review application to be lodged and a separate fee to be paid within the prescribed time frame. It cannot be combined with the application for review of the visa refusal. The Tribunal therefore finds that no application for review was lodged in relation to the nomination refusal for the applicant[25].
[24] BRD, page 21, paragraph 11.
[25] BRD, page 22, paragraph 21.
In relation to the submission that the applicant satisfies other criteria for a different residence stream, the Tribunal found:
The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed[26].
[26] BRD, page 22, paragraph 23.
Grounds of application for judicial review
In turning to the grounds for the application they are fairly lengthy and somewhat convoluted. They appear amongst a chronology on the amended application filed on 8 April 2014 at page 2 and continue for a further four pages through to the top of page 6.
In summary it is seen that, the arguments made by the applicant consist of :
a)That the applicant’s employer claimed not to have received the notification refusing the associated employer nomination sent on 11 February 2013 and the applicant’s employer claims to have specified that service of documents must be by post;
b)That the applicant claimed to be entitled to have his application for review of the 187 visa treated as an application for review of both the refusal of associated employer nomination Decision and the refusal of the 187 visa application and/ or that an application for review of Departmental decision to refuse a nomination application made by the same employer in relation to a different employee, Mr Joel Dulman, applies to the present applicant, therefore he argues that there is a nomination in place in relation to the applicant.[27]
c)In submissions filed on 5 June 2014, the applicant adds allegations that the Minister knowingly gave false testimony on a number of occasions;
d)In submissions filed on 6 August 2014, the applicant added allegations that the Minister, the MRT and Clayton Utz have committed perjury on a number of occasions;
e)In submissions filed by leave on 6 August 2014, the applicant refers to the total allowable catch for the year 2013 to 2014 at the fishery where the applicant works and about the percentage of fish caught in 2006 and that the applicant needs to train future fishers. A document entitled Fish net quantities was annexed.
f)The applicant refers the Court to Cole v Whitfield (1988) CLR 360
g)Reference is made that the applicant sought to satisfy criteria for a visa stream, other than a 187 visa.
[27] These issues are addressed in the Applicant’s outline at paragraphs 2, 4, 5, 6, 7, 10 and 11.
In response, the first respondent submits that;
a)there was no jurisdictional error in the decision of the Tribunal;
b)that none has been demonstrated by the applicant;
c)that the arguments made by the applicant are an impermissible attempt to revisit the merits of the decision;
d)it is further submitted that to revisit the merits of the Tribunal’s decision would breach a fundamental and well established principle of administrative law;
e)the Tribunal’s decision of 24 January 2014 is a privative clause decision, or purported privative clause decision as defined by section 474 of the Migration Act 1958 (Cth) (the Act);
f)Accordingly, the application can only prevail if the applicant demonstrates jurisdictional error on the part of the Tribunal.
g)The applicant has not demonstrated jurisdictional error in the decision of the Tribunal.
h)The Tribunal did not identify a wrong issue, ask a wrong question, ignore relevant material or rely on irrelevant material.[28]
i)The reasons given by the Tribunal demonstrate that its decision was based on “findings or inferences of fact grounded upon probative material and logical grounds.”[29]
j)The decision-making process of the Tribunal was reasonable, the outcome is also a reasonable one. It could not be said to be arbitrary, capricious or without “common sense”.
[28] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30, per McHugh, Gummow and Hayne JJ at 352 [84].
[29] Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 per Kenny J, Rares J agreeing, Buchanan J dissenting, at 378 [50]; see also Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [40]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32 per Gummow and Hayne JJ at 20-21 [38].
It is submitted that the application for judicial review should be dismissed and that the applicant should pay the first respondent’s costs which are listed out at the fixed amount of $6,646.00.
Grounds of Review
Ground of Review: the employer did not receive notice of the refusal of associated employer nomination decision and the applicant’s employer ought to have been served by post.
The Tribunal found that on 11 February 2013, the Department sent a notification of refusal of nomination to Mr Geoffrey Ashton in relation to his nominee, Fritz Alipala Dulman.
On the visa application, the employer nominated Mr Geoffrey Ashton as authorised recipient. The applicant authorised the department to communicate via email or fax.[30] As can be seen on that document under the heading authorised recipient the question is asked Does the applicant authorise another person to receive written correspondence on their behalf? This authorises the Department to send the authorised person all written correspondence that would otherwise be sent directly to the applicant. Included on the form is the response yes, another person.
[30] BRD, pages 170 -171.
The form also asks to list the authorised recipient contact details and that form has been completed with Geoffrey Ashton being the authorised person. Under the heading electronic communication the form states we can communicate about this application quickly using email and or fax. Does the authorised recipient agree to this department communicating via email and or fax? The form has been completed with yes and details have been included under email address showing [email protected] and under fax number details a number is also included[31].
[31] BRD, page 171.
This finding has been made by the Tribunal based on the relevant documents which are before the Court[32] which affirm the Tribunal’s finding as to the method of communication nominated, including for receiving notification of the outcome of the application. The Department sent the decision notice to Mr Ashton by email as it was obliged to do under the Act on 11 February 2013.[33]
[32] BRD, page 170.
[33] Affidavit of Lana Simone Kelly filed on 31 July 2014, annexure “LSK1” and documents at BRD, pages 89, 95 and 99.
The Court also notes that a comparison of the email address on the letter dated 11 February 2013 and the email address supplied by Mr Ashton confirm that the email was sent to the correct destination. In all of those circumstances Mr Ashton is taken to have received the document at the end of the day on which it is transmitted, namely 11 February 2013 pursuant to section 494C (5) of the Act.
I am satisfied that the Tribunal was correct in determining that the Applicant has nominated an authorised recipient as Geoffrey John Ashton as seen in the relevant documents[34], pursuant to s. 494 (D). Further, the Tribunal was correct in finding that one of the methods specified for transmitting documents to the Applicant was by email.
[34] See footnote 32.
The Tribunal was also correct in finding that the Department was not permitted to send the refusal to Mr Fritz Dulman.
The Tribunal correctly found that the nominating employer is taken to have been correctly notified of the delegate’s decision by email on 11 February 2013 pursuant to section 494C of the Act.
In any event and contrary to the applicant’s claim, the Court notes the notification was sent by the Department on 11 February 2013, as referred to in the decision of the Tribunal. This is also as shown in the annexure of the affidavit of Ms Kelly, filed on 31 July 2014.[35]
[35] Annexure LSK1.
Moreover, the applicant’s claim, unsupported by admissible evidence, that his employer did not receive notification of the refusal nomination sent to his employer on 11 February 2013 is not a decision relevant to the applicant’s review of the decision regarding his visa.
Both of these grounds of review must fail.
Ground of Review: the visa refusal lodged on 19 July 2013 ought to be treated as an application for review of refusal of his own application for a 187 visa and also a review for the nomination decision.
Contrary to the assertion of the applicant, each nomination refusal requires both a separate application to be lodged and a separate fee to be paid within the prescribed time frame. There is no provision under an application for review of a visa refusal enabling that document to also be regarded as an application for a review of a refusal of nomination decision.
In SSJDS v Minister for Immigration and Citizenship and Another [2012] FCAFC 27 involves discussion of :
a)the use of an approved form for the purposes of making an application for review of a Migration Review Tribunal reviewable decision under s 357 (1) is referred to. S 347 of the Migration Act 1958 (“the Act”) stipulates that an application for a review must be in the approved form;
b)refers to the distinction between a requirement to make an application for a visa under s 45 of the Act on a specific form and an obligation to complete that form in respect of stated directions;
c)refers to two different scenarios arising where legislation requires a specific form to be used to make an application: the first arises where a specific form is required to make an application and that with application for a review section 347 it is essential that the specific form be used. There is no scope for partial or substantial compliance with the requirement to use the specific form. Either the applicant uses the correct form or the applicant does not. If the applicant does not use the correct form, the attempt to make an application using the wrong form will be invalid.
d)the Court referred to Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 278-279 where Richardson J explained that ss 45 to 47 of the Act required a specific application form as a necessary precondition to the validity of an application for a visa under s 45. The Full Court held in that case that the requirement to use the specified form was substantive and not procedural stating: We are of the opinion that the Parliament intended a similar result in enacting ss 347 and 348. Those sections require that an application for review of an MRT-Reviewable decision will only be made validly by use of the approved form. The purpose of each of forms M1 and M2 was clear. The box on the cover page of each them required an applicant for review to use the particular one of those two forms that was appropriate having regard to whether or not he or she was in immigration detention.
In this matter the Tribunal was correct in finding that no form was ever lodged for review of the nomination decision for Fritz Dulman. Section 347(1) also states that an application for review must be accompanied by the prescribed fee. Only one fee has been received and that is for review of the 157 visa application in the sum of $1,604.00.[36] Without these two requirements which are mandatory, the Tribunal has no jurisdiction to review a decision.
[36] BRD, page 72, Putra v Minister for Immigration & Citizenship [2011] FMCA 498. Also re the payment see Affidavit of Ms Kelly, LSK-1 filed 4 August 2014.
The submission also infers that the applicant has standing to review the nomination decision and the employer has standing to challenge the refusal of the visa application, which is inaccurate. The Tribunal did not accept that a review of a refusal to issue a visa could also be treated as a review of a nomination refusal. These are two separate applications on behalf of two separate legal entities.
Therefore the Tribunal was correct in finding that there was no application for review lodged in relation to the refusal of nomination decision for the applicant. This ground of review must therefore fail.
Ground of Review: the application for review of Department decision to refuse a nomination application made by the same employer in relation to a different employee, Mr Joel Dulman, applies to the present application.
The applicant has alleged that there is an approved associated employer nomination application in place for the applicant and that the Tribunal set aside the refusal of nomination decision and substituted a decision approving the nomination.
The submission is inaccurate as the decision referred to of the Tribunal of 9 January 2014[37] relates to another employee, Mr Joel Dulman. Mr Joel Dulman is referred to throughout the decision and particularly twice at paragraph 10 being the person identified in the nomination, and paragraphs 21 and 27. The applicant Fritz Dulman is not referred to in the decision as being the subject of the application for review.
[37] (Exhibited in full to the affidavit of Ms Kelly, affirmed on 31 July 2014, annexure LKS-3).
For this and the reasons already referred to, the Tribunal was correct in finding that there was no nomination approved by the minister in relation to the applicant. This ground of review must fail.
Ground of Review: that the Minister, the Tribunal and Clayton Utz have committed perjury on a number of occasions or knowing given false testimony.
Submissions made in the June and August 2014 written outlines filed on behalf of the applicant, for the first time raise issues of the Minister and others committing perjury and giving false testimony. These issues were not raised in the grounds of review filed in the amended application on 8 April 2014, save and except that the applicant suggests that the finding that an email had been sent to him was manifestly false and unlawful.
Reference has already been made to this issue earlier in these reasons. As stated elsewhere in this judgment, the Department was authorised to communicate with the applicant by way of facsimile or email as it did in forwarding notice of the refusal of employer nomination decision to Mr Ashton on 11 February 2013.[38]
[38] Annexures LSK1 & LSK2 of the Affidavit of Ms Kelly affirmed 31 July 2014.
I note that apart from the general accusation of “false testimony” and oral reference to “fake documents” by the McKenzie friend during the hearing, no particulars or evidence was put forward. The Minister has not given evidence in this matter either before the Tribunal or this hearing. There is no evidence to support any of these allegations regarding the Minister or any other person acting on behalf of the Minister or any person involved in this review. This submission is a scandalous submission and is without foundation. This ground must fail.
Ground of Review. The applicant refers to the total allowable catch for the year 2013 to 2014 at the fishery where the applicant works and about the percentage of fish caught in 2006 and that the applicant needs to train future fishers. A document entitled Fish net quantities was annexed.
This issue was not raised with the Tribunal, however, in any event, there is nothing in the submission of any relevance to the Court’s consideration of a judicial review. This ground must fail.
Ground of Review: to the extent that the applicant relies upon the ground that the applicant sought to satisfy the criteria for visa streams other than for a subclass 187 visa in the temporary residence stream, the Tribunal was correct in their finding that the applicant only sought to satisfy the criteria for a subclass visa in the temporary residence transition scheme as shown on the visa application summary and other documents, including the application for Visa.[39]
[39] BRD, pages 135,138 & 166.
This ground must therefore fail.
Ground of Review: the applicant relies upon Cole v Whitfield (1988) 165 CLR 360. It is appropriate to observe that the decision of the High Court cited by the applicant, concerned the consideration of whether Tasmanian regulations about the permissible size of crayfish, as applied to crayfish imported from South Australia, were compatible with s.92 of the Constitution. This has no relevance to the applicant’s case. This ground must fail.
Discussion
In my opinion, the review of the Tribunal has been correct in every respect to each of the grounds of review and the outcome is reasonable. I am satisfied that the grounds for review do not deal with whether the Tribunal had jurisdiction to deal with the matter, but rather the merits of the Tribunal’s decision. In the Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 at 272, reference is made to the well settled proposition as to the practical restraints on judicial review stating essentially that a Court at this level of judicial review should not venture into a merits review .
For the reasons that I have mentioned, I am satisfied that no jurisdictional error has been established, and the application must be dismissed.
I intend to make an order for costs in the terms submitted by the respondent.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Willis
Associate:
Date: 10 October 2014
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