Edwards v Minister for Immigration - [2008] FMCA 1587

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EDWARDS & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1587

MIGRATION – Review of decision of MRT – nominated employer – where nominator ceases business and employee employed by another company – where applicant advised of probable failure to comply with Regulations.

Migration Act 1958, s.359A
Migration Regulations

First Applicant:

ALAN EDWARDS

Second Applicant:

JILL LINDA EDWARDS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1534 of 2008

Judgment of:

Raphael FM

Hearing date:

13 November 2008

Date of Last Submission:

13 November 2008

Delivered at:

Sydney

Delivered on:

13 November 2008

REPRESENTATION

For the Applicants:

First Applicant in person

Counsel for the Respondent:

Ms K Stern

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
The Applicants pay the First Respondent's costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1534 of 2008

ALAN EDWARDS

First Applicant

JILL LINDA EDWARDS

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

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 made on 15 April 2002 and handed down on that day. The decision relation to an application by Mr Edwards and his family for subclass 805 (Skilled - Approved Employer Nomination) visas.
According to the history set out in the Tribunal decision the applicants entered Australia on 13 May 1989 on category UA-T78 Temporary Entry Permits. These temporary entry permits were renewed from time to time ending on 10 September 1996. On that day the applicants applied for permanent visas. The visas they applied for were General (Residence) (Class AS) and the applications were lodged on the ground that Mr Edwards, the primary visa applicant, was a qualified business development manager in optics and lighting. The type of visa that Mr Edwards applied for is known as a Nominated Employer Visa which requires the proposed employer of the applicant to be approved as a nominator. The company, which by all accounts probably had been employing Mr Edwards and applied for the nomination, [CB 37] was Polymer Optics (Australia) Pty Limited. On 12 December 1996 a decision was made to approve the application by that company.
For reasons that are explained in paragraph 14 of the Tribunal's decision the applicant's own application was not processed with quite the same speed. Eventually he provided all the information required and the matter was considered by a delegate of the Minister. However, at some time in late 1997 or the beginning of 1998, Polymer Optics (Australia) Pty Limited ceased business. Its activities were taken over by another company known as Poly Optics (Australia) Pty Limited.

A letter to this effect dated 30 January 1998 was given to Mr Edwards and he says that he gave it to the department [CB 167].
Certainly by 11 February 2000, when a letter [CB 131] was written by the department to Mr Edwards, they were aware that Polymer Optics might not be continuing in business. The department wrote to Mr Edwards on that day requiring:
“Evidence the approved appointment will provide the employment referred to in the relevant employer nomination ie evidence that Polymer Optics continues to be operating as a business and a statement from Polymer Optics that you continue to be required by the company to fill the approved position.”
Clearly that evidence was not provided because in the delegate's decision [CB 151-153] it is noted that Reg.805.222(b) of the Migration Regulations (the “Regulations”) was not met. That Regulation requires the satisfaction of the Minister that the appointment is an approved appointment under the Regulations. The reason that it was not an approved appointment was because no such evidence had been provided by Mr Edwards.
At [CB 155] there is an extract from ASIC indicating that as at 28 March 2001 Polymer Optics (Australia) Pty Limited had been deregistered although there is no advice as to the date of that deregistration.
The applicant applied to the Migration Review Tribunal for a review of the decision of the delegate.
On 24 August 2001 [CB 159] the Tribunal wrote to the applicant a letter pursuant to s.359A of the Migration Act 1958 (the “Act”) inviting him to comment upon certain information. That information was that Polymer Optics (Australia) Pty Limited was now a deregistered company. It was explained to Mr Edwards that:
“One criterion for the grant of a Subclass 805 visa is clause 805.222 of the Migration Regulations. A requirement of this criterion is that if your position is the subject of an approved appointment at the time of application, which in your case it is, then your employer, ie Polymer Optics (Australia) Pty Ltd must employ you at the time of deciding this review. Evidence before the Tribunal indicates that Polymer Optics (Australia) Pty Ltd is not able to employ you as it is not a registered company.”
Mr Edwards replied to the Tribunal [CB 161] advising that he had told the department that Polymer Optics had been taken over by Poly Optics but he did not take any steps to seek advice which might lead to an application for nomination being made by that company.
When the matter came before the Tribunal the situation had not changed. The Tribunal's decision, found additionally at [CB 202], affirms the decision under review because Mr Edwards was unable to satisfy Sub-cl.805.222(b):
“As he resigned his position with the nominator and is now employed by another company and further the nominated employer company is now deregistered.”
In fairness to Mr Edwards it is probable that his employment was merely assumed by the new company rather than him resigning from the old. In all these circumstances I am unable to see that the Tribunal fell into any jurisdictional error in the manner in which it reached the decision that I have adumbrated above.
Before me today Mr Edwards appeared. One of the reasons why this case has taken so long to find its way to this court is that he has made a number of extra judicial challenges to the decision of the Tribunal including having the matter looked into by the Ombudsman and making several applications to the Minister to substitute a more favourable decision. He tells me that as a result of the original decision he has not been able to work for some five years but still remains in the country.
Mr Edwards provided me with a written submission which, whilst understandably dealing with what he considers to be the unfairness of his treatment by the department and the Tribunal, does not in reality advance any case of jurisdictional error. One of his complaints was that he had heard the former Minister speaking on the radio in 2007 advising that any skilled applicant who was unable to work because their sponsor company had closed had to be given 28 days to find another company to employ them. Mr Edwards complains that if this was indeed the law it was never advised to him.
A perusal of the court book which contains 425 pages reveals strenuous efforts made by Mr Edwards and his family to remain in this country and some criticism of the manner in which his application was handled. It does seem very unfortunate that a person with his skills has been allowed to remain in the country for five years without being able to work and that a failure to understand the intricacies of the Act has prevented his former employer from obtaining the benefit of his services. It is possible that Mr Edwards will now realise the error of his ways and cease litigation in favour of an appeal to the Minister to exercise his powers to provide a more satisfactory decision than the one received from the department and the Tribunal.
I dismiss the application. I order that the Applicants pay the First Respondent’s costs assessed in the sum of $4,500.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: