El-Agha v Minister for Immigration

[2005] FMCA 952

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EL-AGHA v MINISTER FOR IMMIGRATION [2005] FMCA 952

MIGRATION – Review of Migration Review Tribunal decision – Temporary Business Entry visa – sponsorship – statutory requirements adhered to – no reviewable decision.

Migration Act 1958, ss.359A, 357A, 379(C)(4)

Applicant: WADIH EL-AGHA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 3068 of 2004

Judgment of: Nicholls FM

Hearing date: 4 July 2005

Date of Last Submission: 20 June 2005

Delivered at: Sydney

Delivered on: 4 July 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. S.A. Mason

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs set in the amount of $4500 pursuant to rule 21.02(2)(1) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3068 of 2004

WADIH EL-AGHA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript

This judgment is based on an outline of reasons for my decision given to the parties at the completion of the hearing. I noted at the hearing that in the circumstances of this particular case, involving an unrepresented applicant from a non-English speaking background, that I would prefer to give a written set of reasons rather than just delivering the judgment ex tempore. Both the applicant and respondent’s solicitor agreed with the proposition that I would provide an outline of my reasons orally and then, having had an opportunity to review the transcript, full written reasons.

1. This is an application filed in this Court on 13 October 2004 seeking review of the decision of the Migration Review Tribunal (‘the Tribunal’) made on 13 September 2004 and notified to the applicant by letter of the same date, to affirm the decision of a delegate of the respondent Minister made on 23 May 2003 to refuse a Temporary Business Entry (Class UC) visa to the applicant and his dependent wife and four children. Only the applicant husband, Mr. Wadhi El-Agha, has made an application to this Court.

2. The background to this matter is set out at paragraphs 3 to 13 of the written submissions filed by the respondent on 4 May 2005. I adopt these paragraphs for the purposes of this judgement.

   1)“On 1 April 2003, the Applicant made an application for a temporary business entry visa to the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”): CB 1. The Applicant’s wife, Dalal Fouad Jabbour, and four children, Dona Wadih Agha, Dani Agha, Gessi Agha and Nicholas Agha also applied for visas as members of the applicant’s family unit: CB 2.

   2)The Application stated that the Applicant was being sponsored by an employer named Millennium Division Pty Limited, located at 6 Fletcher Street, Campsie, New South Wales: CB 5.

   3)On 23 May 2003, the Minister’s delegate refused to grant the Applicant a Temporary Business Entry (Class UC) visa on the ground that the applicant had not been nominated by an employer who was an approved business sponsor: CB 16, 20. The Minister’s delegate also refused the applications of the Applicant’s family members: CB 21-22.

   4)On 23 June 2003, the MRT received an application for review of the decision of the Minister’s delegate: CB 24. On 17 July 2003, the MRT wrote to the applicant acknowledging receipt of the application and inviting the applicant to submit any documents or other information in support of his claim: CB 29.

   5)By letter dated 24 march 2004, the MRT wrote to the Applicant inviting him to comment on the fact that an application by Millennium Division Pty Limited for approval as a business sponsor had been rejected by the DIMIA: CB 30. The MRT asked the Applicant to provide his comments within 28 calendar days of receiving notification of the letter and noted that if it did not receive comments within that period, it could proceed to make a decision without taking any further action to obtain comment from the Applicant: CB 31.

   6)

   On 13 July 2004, the MRT wrote a letter to the Applicant requesting comment on the same matters stated in its letter of 24 March 2004: CB 32. The MRT again stated that if it did not receive comment within the period allowed, it could proceed to make a decision without further comment from the Applicant:

   
   

   CB 33.

   7)On 17 August 2004, Margaret Tannous of Austrlia’s Migration & Secretarial Services wrote to the MRT on behalf of the Applicant seeking an extension of time to respond to the MRT’s letter dated 13 July 2004: CB 35. The extension of time sought was an additional three weeks after the expiry of the time period for comment stated in the letter of 13 July 2004.

   8)By letter dated 19 August 2004, the MRT informed Ms Tannous that the MRT had decided not to grant an extension of time, and stated that the Applicant would lose the right to a hearing if a response was not received in the time provided: CB 40.

   9)Ms Tannous responded by letter dated 20 August 2004, informing the MRT that the Applicant had located a new sponsor that he believed would be an approved sponsor, and would like the opportunity to present the information and supporting documents at a hearing date or as soon as possible: CB 42.

   10)On 13 September 2004, the MRT handed down its decision affirming the decision of the Minister’s delegate that the Applicants were not entitled to the grant of Temporary Business Entry (Class UC) visas: CB 45.

   11)On 13 October 2004, the Applicant filed the application for judicial review of the MRT decision.”

   Specifically, the applicant applied for a Class UC visa for a stay for longer than three months. In these circumstances the sub-class 457 (Business Long Stay) visa was the only relevant subclass of that visa available to the applicant under the relevant statutory and regulatory regime set out pursuant to the Migration Act 1958.

3. When this matter came on for hearing on 20 June 2005, the applicant complained that he had not received the respondent’s written submissions. I adjourned for a short period to allow these to be translated for the applicant. On resumption the applicant sought an adjournment to another day to obtain legal advice. As he understandably put to the Court:

   “I thought I needed a sponsor not a lawyer.”

   I agreed to the adjournment and the matter came on for hearing on

   
   

   4 July 2005. The applicant remained unrepresented. He was assisted by an interpreter in the Arabic language.

4. In his application for this visa, lodged with the respondent’s Department on 1 April 2003, the applicant indicated that he was being sponsored by Millennium Division Pty Ltd (see Employment Contract at Court Book 12). The application, for approval as a business sponsor made by this company was refused by a delegate of the respondent Minister and this decision was subject to a separate review by the Tribunal which subsequently affirmed the decision of the respondent’s delegate. The Tribunal wrote to the applicant’s authorised recipient for correspondence with a copy sent to the applicant, on 24 March 2004 (CB 30 and CB 31) and put the applicant on notice, pursuant to s.359A of the Migration Act, that it had information from the relevant file of the respondent’s Department that the decision had been made to reject the application made by Millennium Division for approval as a business sponsor. The Tribunal explained that this information was relevant to the applicant's review because the basis upon which he had applied for the visa was that he would be employed by an approved business sponsor. The Tribunal clearly noted that without an approved business sponsor the relevant visa criteria could not be met.

5. The Tribunal wrote to the applicant’s authorised recipient for correspondence with a copy sent to the applicant again on 13 July 2004 (CB 30 to 33) and provided further information pursuant to s.359A of the Act. It repeated the information available to the Tribunal from the respondent’s file and provided further information that the Tribunal had made a separate decision on 30 June 2004 to affirm the decision not to approve Millennium Division as a business sponsor. The letter repeated the previously conveyed information of the need for a business sponsor, and that without there being an approved business sponsor the visa criteria could not be met. The letter invited comments on the relevant matter of the sponsorship, within 28 calendar days of the date of notification of the invitation, and added to this period the seven working days from which the applicant could be considered to have been notified of this invitation. This meant that the applicant's response was due by 19 August 2004. The Tribunal notified the applicant in this letter that if the Tribunal did not receive any comments within the period allowed, it may under s.359C of the Act make a decision on the review without taking any further action to obtain any further comment. The letter emphasised that in addition he would (in those circumstances) not be entitled to appear before the Tribunal.

6. By letter dated 17 August 2004 received by the Tribunal by facsimile on that date, and copied at CB 35, the Tribunal received a letter from Australia's Migration and Secretarial Services (a migration advice agency) stating it had just been approached by the applicant who sought that they would represent him. The principal Migration Consultant of this agency requested an extension of time in order to facilitate a response and provide further information in relation to the Tribunal's letter. The agency sought until 9 September 2004 to provide this response. By letter dated 19 August 2004, copied at CB 40, the Tribunal responded that it would not grant any extension and noted that the applicant had been sent a letter dated 13 July 2004 inviting comment on the relevant information and that it noted the due date for these comments was the 19th of August 2004. The letter relevantly also noted that the applicant would lose the right to a hearing if the response was not received in the time provided by the Tribunal, and that it would proceed to a decision on the papers. However, the Tribunal also stated that prior to the handing down of any decision it would accept any submission that may be made and would consider it.

7. The next day, 20 August 2004, the Tribunal received by facsimile another letter from the applicant's migration agent representative. Relevantly, the following part of the agent's letter at CB 41 should be noted:

   “We understand that because Mr. El-Agha’s sponsor is no longer an approved sponsor, and this is one of the conditions imposed on the visa. We kindly request, with all due respect that you take into consideration the following matters, prior to making a final decision, and request you re-consider giving our client the opportunity for a hearing date in order to provide further documents in support of his application for review.

   Mr Wadih El Agha is a painter by trade that is listed on the ASCO code. He is a great asset to Australia, and has trained Australian workers, in this field. Mr El Agha has located a new sponsor that he believes would be an approved sponsor. Our client would like the opportunity to present the information, and supporting documents at a hearing date, if you decide to reconsider, or as soon as possible.”

8. In its decision record the Tribunal notes (at CB 49.4) that the adviser wrote to the Tribunal on 20 August 2004, which was outside the time required for a response, and that in that letter the adviser conceded that the applicant did not have an approved business sponsor. This in my view, is an inelegant representation of what the adviser had written and conveyed. The adviser clearly confirmed the understanding that Millennium Division was no longer an approved sponsor. Nor was the adviser saying that the applicant definitely had a sponsor who would meet the requirements. No details of any new sponsor whatsoever, let alone evidence of an application to the respondent’s Department for approval as a business sponsor, was put forward. It is clear that at the date of the adviser’s letter the applicant did not put forward any approved business sponsorship. But the adviser’s letter did put forward the possibility of obtaining such a sponsorship. The adviser sought an opportunity for the applicant to be given a hearing date in order to provide further documents in support of his application for review. The adviser further claimed that the applicant had located a new sponsor that he believed would be an approved sponsor and sought an opportunity for the client to present the information and supporting documents at a hearing. The issue then is whether in the circumstances the Tribunal should have provided this further opportunity or whether it was entitled to proceed to a decision.

9. Relevantly s.357A of the Act states that Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. The Tribunal wrote to the applicant pursuant to s.359A providing the information that had to be given to the applicant and giving the applicant the opportunity to comment on this information. The Tribunal correctly identified the date by which the applicant had to respond. Section 379(C)(4) provides that where a document is dispatched by prepaid post, the document is taken to have been received by the person to whom it is addressed, seven working days after “the date of the document”. The Tribunal then added the required 28 days and that meant that 19 August 2004 was the due date. The Tribunal clearly refused the extension sought by the migration adviser in the letter dated 17 August 2004, but added that in any event it would accept any submission to be made, and would consider it if made up until the time of the handing down of the decision.

10. At the hearing before me, the applicant stated that he did not personally know of the letters of 24 March 2004 (CB 30 to CB 31) and 13 July 2004 (CB 32 to CB 34) until much later after the date of posing. He claimed that the letters were sent to Ely El-Agha at Millenium Division, and that this was not him but another person, and that he only became aware of these letters on 1 August 2004.  I pointed out to the applicant that in his application for review to the Tribunal (CB 25 to CB 28) he indicated at CB 27 that he wanted all correspondence to be sent to Millenium Division (Ely El-Agha) and that an address was given for that purpose. The application form clearly advised that all correspondence would be sent to the address provided in that section of the application form, and that pursuant to s.379G(2) of the Act any correspondence given to this representative, who was the authorised recipient for correspondence, would be taken to have been given to the applicant. In sending this correspondence as it did the Tribunal complied with the relevant statutory requirements to give the applicant notice of the information adverse to him, on which its decision would rely. But the Tribunal went further as it also sent a copy of the letter to the applicant’s home address as provided by the applicant in his application. (This course of action is not prevented by the relevant legislation (s.379G(2)). The applicant further complained at the hearing before me that his home address had been supplied by Millenium Division, who had lodged his application with his knowledge, and that while it was correct at the time, he had subsequently moved. The applicant was unable to explain why no change of address advice had been sent to the Tribunal until 20 August 2004. As I pointed out to the applicant it was not an error on the part of the Tribunal to send a copy of the correspondence to the only residential address that he had provided. In any event the Tribunal needed only to send the correspondence to the authorised recipient to comply with its statutory obligations.

11. Having complied with the statutory requirements, and in these circumstances, the Tribunal was entitled to proceed to make a decision on what was before it. It is clear that at the time of decision the applicant had not provided any definite evidence that he had any other sponsor who was an approved sponsor, or even any details of any proposed sponsor who may ultimately be approved, and who would support his application. It was therefore open to the Tribunal to make the decision to refuse the visa sought by the applicant, on the basis that a very clear regulatory requirement for the granting of that visa was not met. The Tribunal was not and could not be satisfied that an approved sponsor, or even that a potential sponsor, was actually available.

12. But further even to the extent that s.357A may not apply and to the extent that the common law principles of procedural fairness could be said to apply, which is the basis for the applicant's complaint before me today, the letter of 20 August 2004 sent by the applicant's migration adviser submitted:

    1)A request for a hearing date so that the applicant could present information and supporting documents.

    2)That the applicant had located a new sponsor that he believed would be an approved sponsor.

    It is difficult to understand why the migration adviser would seek a hearing date to submit this information, particularly in circumstances where the adviser was aware that the Tribunal had clearly complied with the relevant statutory requirements in relation to the period for the provision of a response to the information that the applicant required a sponsor and did not have a sponsor. This period expired on 19 August 2004. The Tribunal speculated (at CB 49.8) that this request could be an expedient way of continuing to remain in Australia without even actually satisfying the relevant visa requirement. However, all that was needed on the part of the applicant was evidence that the applicant had located a new sponsor. Details of that information could have been provided to the Tribunal on 20 August 2004 consistent with the Tribunal's advice of 19 August 2004 faxed to the adviser that the applicant would lose the right to a hearing. The Tribunal clearly said that if the response is not provided by the end of 19 August 2004 it may proceed without a hearing. In the circumstances of the case it was obvious that while the Tribunal said it would accept any submission to be made, clearly the only critical submission that could be made and that would affect the outcome in a positive way for the applicant was that the applicant had a specific sponsor who was or could be an approved sponsor and that details of that should have been and could have been provided to the Tribunal, if indeed the applicant did have a sponsor or even a potential sponsor. There was no necessity for the migration adviser to request a hearing at some time in the future for this information to be provided to the Tribunal. In any event, the Tribunal did not make its decision until 13 September 2004, over 3 weeks following the request from the migration adviser. There is nothing before me to show that the applicant or his adviser made any attempt to provide this information to the Tribunal. Nor relevantly that any application was made to the respondent’s Department by any new potential sponsor seeking recognition as an approved sponsor in relation to the applicant's application. In the absence of any details, even of the most basic nature, to support the statement of the applicant’s belief that he had located a sponsor, the Tribunal having given the applicant a reasonable period to respond to its request and then a further opportunity up until the date of decision, was entitled to proceed to make a decision on what was before it. Further, in its decision record the Tribunal makes reference to the fact that it had regard to the principle set out in Huo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 647 that for the Business (Long Stay) visa subclass the business sponsorship and nomination could be in place at least at the time of decision, not even necessarily earlier. There was no evidence before the Tribunal that this was the case on the material before it at the time of its decision. A time of decision it must be emphasised, that occurred some time after the applicant, who had the assistance of an adviser for at least part of this time, was on clear and even on his own admission actual notice of what was required in his case to satisfy the relevant visa requirements. In relation to the adviser I note as Ms. Mason submitted that the Principle Migration Consultant of this agency wrote to the Tribunal on 17 August 2004, claiming that the applicant had just approached that agency seeking to be represented, appears to be the same person at the same address who assisted the applicant in the original application for the visa lodged with the respondent’s Department (CB 9).

1. In these circumstances I can see no unfairness on the part of the Tribunal towards the applicant. The applicant knew he needed a relevant approved business sponsor. He concedes that he had actually known this at least from 1 August 2004 up until 13 September 2004, the date of the Tribunal's decision. The applicant had not provided any evidence that any such business sponsorship existed as at the date of decision. Further and specifically in relation to the applicant's complaint that the Tribunal did not provide him with an opportunity to present information on a new sponsor the applicant had such opportunity at least between 20 August 2004 being the date of the request by the adviser and 13 September 2004 being the date of decision by the Tribunal. It is not sufficient for the applicant now to complain that he was waiting for a hearing date to be able to provide this information. Details of this information could have very easily been provided by applicant or his adviser at any time during the 3 weeks, between his adviser's letter and the Tribunal's decision. The applicant has not explained why he and his adviser wanted a hearing to provide this information instead of just going ahead and providing this information in writing to the Tribunal consistent with the Tribunal's advice that it would accept any submission prior to the handing down of the decision. 

2. In all the circumstances of this case the applicant knew for some time that he was required to provide evidence of a business sponsor who had been approved as a business sponsor for the purposes of supporting the application. The Tribunal complied with the relevant statutory requirements and put the applicant on notice of the relevant issue, provided the applicant with the information on which it would proceed to make its decision, and gave the applicant notice that a failure to respond could lead to the decision being made on the papers, and gave the applicant the further opportunity to respond and provide the critical evidence. Without an approved business sponsor the applicant could not meet the criteria for the visa for which he had applied. The Tribunal in these circumstances had to affirm the decision under review. I can see no jurisdictional error in how the Tribunal has approached this task or in what it has done. The application is accordingly dismissed.

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

Associate:  Sybilla Waring-Lambert

Date:  7 July 2005