Galhot v Minister for Immigration
[2007] FMCA 928
•6 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GALHOT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 928 |
| MIGRATION – Visa – Temporary Business Entry (Class UC) visa – Migration Review Tribunal – application for review of MRT decision affirming decision of a delegate of the Minister not to grant visa – no sponsor – no reviewable error. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.339,359A |
| Applicant: | BHAGWAN GALHOT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 849 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 June 2007 |
| Date of last submission: | 6 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Mitchelmore |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,200.00.
I allow nine (9) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 849 of 2007
| BHAGWAN GALHOT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Migration Review Tribunal. The Tribunal signed its decision on 18th January 2007 and handed its decision down on 5th February. The Tribunal affirmed the decision of a delegate of the Minister finding that the Applicant is not entitled to the grant of a Temporary Business Entry (Class UC) visa.
The Applicant seeks judicial review of that decision; in particular he seeks an order in the nature of certiorari setting aside the decision of the Migration Review Tribunal and an order in the nature of mandamus remitting the application to the Tribunal for reconsideration.
Background
The facts of this matter indicate a background that is quite long and drawn out. This Applicant, who is a national of India, arrived in Australia as long ago as 1997 and applied for a Temporary Business Entry (Class UC) visa on 15th May 1997. A delegate of the Minister refused that application on 22nd June 1998. The application was refused because the Applicant no longer had a sponsor. He had been sponsored an Indian restaurant, but on 19th May 1998 the restaurant wrote to the Department withdrawing its sponsorship. What happened then was that the Applicant sought a review of that decision from the Migration Internal Review Office (MIRO). Unfortunately, the application for review was out of time.
The Migration Internal Review Office wrote to the Applicant on 8th September 1998 informing him that the original decision had been made on 22nd June 1998 and that the latest possible date for acceptance of the application for review was 20th July 1998. That was because s.339(1)(b)(i) of the Migration Act as it then stood provided that an application for review must be lodged no later than 28 days after notification of the decision. As the application for review was not received by the Migration Internal Review Office until 24th July 1998 it was out of time. The letter informed the Applicant that there were no provisions to waive the time limits for review.
Nothing of any significance then happened for a period of nearly seven years. Eventually officers of the Department found the Applicant working at a restaurant in Harris Park in breach of Condition 8101 of his Bridging visa.
The Department wrote to the Applicant on 19th August 2005, by that stage the Applicant had come under notice from the Department. The letter told the Applicant that the Department was currently investigating whether he continued to hold a Bridging visa in respect of his application, and the letter forwarded some forms for him to fill in.
The Applicant then consulted a migration agent trading under the name of Superior Migration who wrote to the Department on 27th August 2005. In that letter the agent told the Department that his client claimed that he had never received any letter in relation to the application and he requests that the decision to refuse the Applicant's visa be resent in order that the Applicant may have a chance to lodge what was described as an appeal, he still wanted to proceed.
The Department did notify, or perhaps re-notify, the Applicant of the decision of 22nd June 1998 to refuse a visa. That notification was done under cover of a letter of 1st September 2005 and it was expressed to be a notification under s.66 of the Migration Act. That notification had the effect of giving the Applicant an opportunity of seeking a review of that decision from the Migration Review Tribunal. The Applicant then, through his migration agent, made an application for review on 12th September 2005.
The Tribunal wrote to the Applicant on 30th March 2006 under the provisions of s.359A of the Migration Act. That letter invited the Applicant to comment on writing on two pieces of information. A copy of the letter can be found at pages 96 and 97 of the Court book, and the pieces of information are these:
· Information on the Department's file indicates that your visa application was originally based on a sponsorship and nomination by Anjli Indian Eatery. The business sponsorship was withdrawn by the proposed business sponsor on 19 May 1998.
· There is no evidence before the Tribunal that you currently have an approved business sponsor or that your proposed employment is the subject of an approved nomination.
The letter asked the Applicant to provide comments in writing within 28 calendar days. The Applicant's migration agent forwarded a request for additional time to respond to the invitation to comment on 5th May. The Tribunal decided on 8th May 2006 not to extend the period of time to comment. The Applicant's migration agent wrote to the Tribunal on 8th May 2006 in a written submission and making certain comments which he asked to be taken into consideration.
On 10th May 2006 the Tribunal wrote to the Applicant inviting him to attend a hearing to take place on 20th June 2006. The Applicant's migration agent advised the Tribunal on 25th May 2006 that the Applicant now had a sponsor and a nominator. The Tribunal rescheduled the hearing until 15th August 2006. The Applicant's migration agent wrote to the Tribunal on 9th August 2006 indicating that he was waiting for documents from the sponsor and had been told that the sponsor intended to withdraw the nomination and sponsorship. The migration agent asked that the situation should be taken into account.
The Applicant attended the hearing on 15th August 2006. He gave oral evidence and confirmed that there were problems with the current sponsor, an organisation called Simran & Co Pty Ltd.
The Tribunal wrote to the Applicant care of his migration agent on 5th December 2006. This was another letter under the provisions of s.359A of the Migration Act. Again, the Tribunal asked the Applicant to provide comments in writing on certain information and advised the Applicant as to why that information was considered relevant.
The information in three bullet points was as follows:
· Information from the Department's records indicates that on 30 November 2006 the Department made a decision to refuse the business sponsorship application by Simran and Company Pty Ltd which was lodged on 11 May 2006.
· Information from the Department's records also indicates that on 30 November 2006 the sponsor Simran and Company Pty Ltd withdrew their nomination in relation to you.
· Information in your visa application indicates that you were seeking a stay of one year in Australia when you applied for a Class UC visa.[1]
[1] Court Book at page 134
The Tribunal's decision was signed on 18th January 2007. The Tribunal set out details of the evidence before it. The Tribunal's decision record can be found at pages 146 through to 151 of the Court book.
In reviewing the Applicant's evidence the Tribunal noted that the Applicant appeared before the Tribunal to give evidence on 15 August 2006 and confirmed that there were problems with his current sponsor and that he was seeking more time to find another sponsor. The Tribunal noted that it was eventually advised by the Department on 30th November 2006 that it had refused the business sponsorship application by Simran and Company.
The Tribunal referred to its letter of 5th December 2006 seeking further information, and noted that the Tribunal had received a submission from the Applicant's representative on 18th January 2007 stating that the Applicant was working as a chef and his employer wished to sponsor him, but the employer was not in a position to show that he could meet sponsorship requirements. The representative requested the Tribunal to allow extra time.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons are set out on page 150 of the Court book. The Tribunal was satisfied that the original sponsor, Anjli Indian Eatery, had withdrawn the sponsorship application and nomination in May 1998. The Tribunal was satisfied that the sponsorship application and nomination of the Applicant in respect of the most recent sponsor had been lodged on 11th May 2005. The Tribunal found that the sponsorship application by Simran and Company was refused on 30th November 2006.
Accordingly, the Tribunal was not satisfied that the Applicant had an employer who was an approved pre-qualified or standard business sponsor, and therefore found that the applicant failed to meet paragraphs.457.223(4)(c) and 457.223(5)(c).
The Tribunal went on to find that the activity in which the visa applicant proposed to be employed was not the subject of an approved business nomination by the employer in any event, and found that the applicant did not meet paras.457.223(4)(b) and 457.223(5)(b). The Tribunal went on to say:
The Tribunal has considered the request from the representative that it should allow additional time for the visa applicant to obtain a sponsorship and nomination from a new employer. The Tribunal considers that it has given the visa applicant a reasonable opportunity to obtain a new approved sponsor and nomination. The Tribunal does not consider that it should postpone a decision on the review until the visa applicant arranges yet another sponsorship and nomination.
The Tribunal went on to find that the Applicant could not meet essential criteria for a subclass 456 visa and found that the Applicant was not entitled to be granted a Class UC visa, and affirmed the decision under review.
The application for judicial review
The Applicant filed an application and an affidavit on 14th March 2007. In his application he sets out five grounds for relief:
i)Procedural error by not allowing enough time for grant of sponsorship and nomination.
ii)Procedural error by not putting to the applicant that he may qualify for a 456 visa.
iii)Procedural error as evidence that sponsor, nominator and agent was one and the same.
iv)Procedural error by not considering disadvantage to applicant by changes in the legislation which adversely affected the applicant.
v)Procedural error by not considering the restrictions placed on the sponsor versus requirement for students to obtain 900 hours work.
The Applicant attended Court today, he was not legally represented. He advised the Court that the grounds in the application were matters of law and had been prepared by his migration agent. He said he was unable to comment on matters of law, indicated that he was a qualified chef and wanted to get an independent visa for himself.
I have read the written outline of submissions prepared by Ms Mitchelmore of counsel. In her submissions Ms Mitchelmore states that the first, fourth and fifth alleged errors by the Tribunal, namely not allowing enough time for a grant of sponsorship and nomination, not considering disadvantage to Applicant by changes in legislation which adversely affected the Applicant, and not considering the restrictions placed on the sponsor versus requirement for students to obtain 900 hours work, all appeared to go to the Tribunal's decision not to grant the Applicant a further period of time in which to obtain a sponsor.
She submitted, correctly in my view, that there was no obligation on the Tribunal to grant the Applicant a further period of time. Ms Mitchelmore submitted that the circumstances involving the procedure by the Tribunal showed that the process adopted by the Tribunal was a fair process and that the Tribunal's conduct of the review of the delegate's decision complied with Division 5 of Part 5 of the Migration Act. The refusal to grant the Applicant a further period of time in which to find another sponsor did not amount to a jurisdictional error.
Ms Mitchelmore also submitted that it was difficult to identify the precise error alleged by the Applicant in paragraphs (ii) and (iii) of his grounds, namely procedural error by not putting to the Applicant that he may qualify for a 456 visa and evidence that the sponsor, nominator and agent was one and same.
In considering this matter it is astonishing that the Minister's Department appears to have lost track of the Applicant for a period of nearly seven years from the time his application for review by the Migration Internal Review Office was refused on 8th September 1998 until the time in 2005 on what appears to be 9thJune 2005 when he came under notice by officers of the Department, having been found working in a restaurant in breach of his visa conditions.
In any event, the Department re-notified the Applicant of the earlier decision, allowing time for a review to run, and the Applicant through his migration agent lodged an application for review.
The reason why the Applicant's application was refused by the Tribunal was that the Applicant did not comply with the requirements of the visa. He did not have a sponsor. True it is that he had applied for sponsorship, but the sponsorship application by the new employer, Simran and Company, had been refused on 30th November 2006.
Turning to the grounds of the application, ground 1 alleges a procedural error by not allowing enough time for grant of sponsorship and nomination. The circumstances of the timing indicate that the Tribunal had written to the Applicant on 30th March 2006 pointing out that the refusal of his previous sponsor's application meant that the Tribunal could not be satisfied that he met the requirements of the visa.
The Tribunal cancelled the first hearing, which was to have been held on 20th June 2006, because the Applicant had found a new sponsor who had lodged an application. A further hearing was appointed on 15th August 2006. At that stage the Applicant made it clear to the Tribunal that he was having difficulties with his latest sponsor and it transpired that the sponsor's application had been refused by the Department on 30th November 2006.
The Tribunal had written to the Applicant on 5th December under the provisions of s.359 seeking his comments. The Applicant did not request an extension of time until 18th January when the Applicant was notified of the Tribunal's intention to hand down its decision. In my view, there is no procedural unfairness in the way the Tribunal dealt with the Applicant's request of time to obtain sponsorship.
As to the Applicant's second ground that the Tribunal fell into error by not putting to the Applicant that he may qualify for a Class 456 visa, I am not satisfied that any error has been shown. There is no obligation on the Tribunal to provide an applicant with advice as to what visa the applicant may apply for. And in any event, as counsel for the Respondent Minister points out, the Applicant had excluded himself from the criteria for a Class 456 visa by proposing to remain in Australia for more than three months on a single occasion. There is no jurisdictional error in respect of that claim.
As to the third claim:
Procedural error as evidence that sponsor, nominator and agent was one and the same.
I am unable to identify what error is meant by that, and the Applicant has not been able to provide any details. I cannot see that that ground indicates any jurisdictional error.
As to ground 4, the claim of procedural error by not considering the disadvantage to the Applicant by changes in legislation which adversely affected him, this is in fact a challenge to the very substance of the Tribunal decision. It is not a jurisdictional error.
Similarly, the fifth ground of procedural error by not considering the restrictions placed on the sponsor against requirements for students to obtain 900 hours work, is in effect a challenge to the Tribunal's decision itself. It does not disclose any jurisdictional error, there is no requirement on the Tribunal to consider matters of that nature. No jurisdictional error has been made out.
The Applicant is not legally represented. I have examined the decision independently of the Applicant's application, and indeed independently of the Minister's submissions, but I am unable to identify any jurisdictional error.
It follows that the Tribunal's decision is a privative clause decision as defined by s.474 of the Migration Act. Therefore, it is not open to make any order in the nature of certiorari or mandamus.
There is an application for costs in the sum of $3,200.00. The Applicant has been unsuccessful and there is no reason why the Court should not make a costs order in favour of the successful First Respondent. The Applicant has put to the Court, however, that he does not have the funds to meet those costs of $3,200.00, even though I am satisfied that the sum sought is well within the scale provided by the Federal Magistrates Court Rules.
An inability to pay in this jurisdiction is not a matter that would go to whether or not a costs order should be made, but is certainly a matter to be taken into consideration in allowing time to pay. In the circumstances and noting the extensive delay in dealing with this matter by the Minister's Department, I am satisfied that I should allow a relatively lengthy period of time to pay the costs. I allow nine months to pay.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 19 June 2007
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