Harabati v Minister for Immigration - [2005] FMCA 1225

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARABATI v MINISTER FOR IMMIGRATION

[2005] FMCA 1225

MIGRATION – Application for review of a decision of the Migration Review Tribunal – whether decision was unreasonable – whether the Tribunal failed to give the applicant an opportunity to comment on information – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth), ss.359A, 359C, 359C(2), 360, 360(1), 360(2), 379G, 379G(1), 379G(2), 474, 474(1), 474(2)
Migration Regulations 1994

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Applicant NALU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 31
VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255

Applicant:

GULGUN HARABATI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 807 of 2005

Judgment of:

Pascoe CFM

Hearing date:

22 August 2005

Delivered at:

Sydney

Delivered on:

19 September 2005

REPRESENTATION

Counsel for the Applicant:

Assisted by friend, Mr Laba Sarkis

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Phillips Fox

ORDERS

That the Migration Review Tribunal be joined as a party to these proceedings.
That the application be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $4400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 807 of 2005

GULGUN HARABATI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application brought under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (“the Act”) for relief against a decision of the Migration Review Tribunal (“the Tribunal”) made on 11 March 2005 which affirmed the decision of a delegate of the respondent not to grant a Temporary Business Entry (Class UC) visa to the applicant.
Consistent with the recent decision of the High Court in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, I join the Tribunal as a party to these proceedings.

Background

The applicant, who is a national of Turkey, was born on 18 March 1972. The applicant applied to the Department of Immigration & Multicultural Affairs (“the Department”) for a Temporary Business Entry (Class UC) visa on 26 May 2003. On 20 June 2003 a delegate of the respondent refused to grant to the applicant a Temporary Business (Class UC) visa and on 27 June 2003 the applicant sought review of that decision by the Tribunal.

The legislative framework

The decision of the Tribunal is a privative clause decision and falls within the provision of s.474(2) of the Act. With respect to privative clause decisions, s.474(1) provides:
A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
In Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the High Court, comprising Gaurdon, McHugh, Gummow, Kirby and Hayne JJ upheld the validity of s.474 and at [76] their Honours said:
…the expression “decision[s]… made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”. Thus, if there has been jurisdictional error because, for example, of a failure to discharge ‘imperative duties’ or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described in the terms used in s474(2) as “a decision…made under this Act” and is, thus, not a “privative clause decision” as defined in ss 474(2) and (3) of the Act.
The effect of Plaintiff S157 (supra) was set out comprehensively by the Full Federal Court in Applicant NALU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 31 where their Honours, comprising Hill, Goldberg and Conti JJ said at [13] said:
So far as the claim of jurisdictional error is concerned, such a ground must now be considered in light of the reasoning of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (supra). The effect of the decision of the High Court is that s 474 of the Act does not exclude the court of decisions which involve a failure to exercise jurisdiction or which involve an excess of jurisdiction conferred by the Act, as such decision are not “decisions made under…[the] Act for the purposes of s 474. Whatever be the scope or extent of jurisdictional error: see, for example, Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 at 351.
Thus, what follows from the reasoning in Plaintiff S157 is that s.474 is a valid and operative provision and prevents the review of decisions made under the Act except for decisions affected by jurisdictional error. What constitutes jurisdictional error must be understood in light of what the Full Federal Court said in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255. In that case, their Honours, Wilcox, Gray and RD Nicholson JJ said at [16]:
It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself the wrong question, ignoring relevant material, relying on irrelevant material, or at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.

Application before the Court

In her amended application, the applicant contended that the Tribunal had fallen into jurisdictional error in its assessment of the sponsor’s capacity to meet the requirements to become an approved sponsor. The Tribunal assessed the applicant’s application in accordance with subclass 457 of the Regulations as the applicant was seeking a visa of more than three months. The Tribunal noted that the applicant made her application on the basis that she received sponsorship by a business operating in Australia. The Tribunal correctly noted that one of the necessary requirements for the entitlement to a sponsorship is that the proposed employer be approved as a pre-qualified business sponsor or as a standard business sponsor. The applicant’s proposed sponsor, Ozben & Sons Pty Ltd applied for approval as a business sponsor on

26 May 2003. Approval was refused on 20 June 2003 by a delegate of the Minister and was subsequently affirmed by the decision of the Tribunal made on 5 January 2005. The Tribunal was correct in finding that the applicant did not meet the necessary criterion for the grant of a Temporary Business Entry (Class UC) visa as her proposed employer had not been approved as either a pre-qualified business sponsor or as a standard business sponsor. The Tribunal was required to apply the necessary criterion and found that the applicant’s proposed employer had not been approved as a business sponsor in accordance with clause 457.223 of the Regulations which provides:
The applicant meets the requirements of this subclause if:
(a) the activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer; and
(b) the employer is:
(i) either:
(A) a pre-qualified business sponsor; or
(B) a standard business sponsor approved under regulation 1.20D as in force before, on or after 1 July 2003.
This was a question of fact and the Tribunal’s finding was one reasonably open to it.
It was contended for the applicant that the decision of the Tribunal to refuse her application for a visa was unreasonable. It is difficult to understand precisely how the decision was unreasonable. The Tribunal decision is set out at pages 54 to 55 of the Court Book. The Tribunal was required under the regulations to consider whether the applicant had been sponsored by a pre-qualified business sponsor or standard business sponsor. It found that because the proposed employer had not been approved as a business for the purposes of clause 457.223 the applicant was not entitled to a visa. Accordingly, as I can see no error this ground must fail.

Other grounds outside of the application

It was also contended for the applicant, outside of her amended application, that the Tribunal committed an error of law in failing to give the applicant the opportunity to comment on information in relation to her application for a Temporary Business Entry (ClassUC) visa. Moreover, it was contended that the applicant’s migration consultant was not given authorisation or instructions to communicate on her behalf with the Tribunal in relation to her visa application.
In its decision the Tribunal stated that the Tribunal wrote to the applicant inviting her to provide comments on the following information:
Files disclose that DIMIA has made a decision to reject the application of your prposed employer, Ozben & Sons Pty Ltd, to be approved as a business sponsor. An application was lodged with the Tribunal to review that decision. The Tribunal has decided on the case and affirmed the Department’s decision. It seems that at present you do not have an employer approved to be a business sponsor.
The basis upon which you had applied for the visa is that you would be employed by an approved business sponsor. Without there being an approved business sponsor, the visa criteria cannot be met.
On 31 January 2005 the applicant requested that the Tribunal proceed to make a decision on the information before it. Accordingly, the Tribunal was satisfied under s.360 of the Act that the applicant consented to the Tribunal deciding the application for review without her appearing before the hearing and proceeded to make a determination on the material before it.
Section 359A provides that the Tribunal must invite the applicant to comment on information relevant to the application under review. It is apparent on the material before the Court that a letter dated 7 January 2005 was sent to the applicant’s migration agent as the authorised recipient. I am satisfied that that letter constituted a proper invitation to comment on information and that the Tribunal discharged its obligations in accordance with the Act. In its letter the Tribunal indicated that the applicant had not been sent a copy of that letter. At the top of the page it states:
As the Authorised Recipient, all correspondence on this case will be sent to you as requested by Ms Gulgun Harabati. Please note that Ms Gulgun Harabati has not been sent a copy of this letter. It is important that you tell the review applicant about this letter.
The address for service on the Tribunal material was the address of the applicant’s migration agent which was provided by the applicant in both her application to the Department and the Tribunal. Those relevant sections of the forms authorised the applicant’s agent to act on her behalf and receive documents relating to her application. It was contended for the applicant that she never received proper notice of this letter and that the letter in response dated 31 January 2005 from her agent was sent without her authorisation. The letter sent by the applicant’s migration agent stated, inter alia, that the applicant’s instructions were for the Tribunal to proceed to make a decision on the material it had before it. The Tribunal proceeded to make a decision on the material before it having been satisfied that the applicant had given her consent. Consequently, the Tribunal had a discretion to exercise under s.359C(2) of the Act which provides:
The Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
The Tribunal was not required to invite the applicant to attend the hearing because according to the letter from her migration agent she had waived her entitlement to appear before the Tribunal hearing and asked the Tribunal to proceed to decision on the material before it. Therefore, s.360 which imposes a duty on the Tribunal to invite an applicant to attend a hearing did not apply. In this regard, I note s.360(2)(b) which expressly provides that s.360(1) does not apply where the applicant consents to the Tribunal deciding the review without the applicant appearing before it.
Although it was contended for the applicant that she did not receive the letter of invitation, s.379G(2) provides that if the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. It also provides that the Tribunal can provide a copy of the document to the applicant.
Section 379G(1) applies in this case as the applicant in her application to the Tribunal had given her migration agent’s address as the address for service, to receive documents relating to her application. Section 379G(1) relevantly provides:
If:
(a) a person (the applicant) applies for review of an MRT-reviewable decision; and
(b)the applicant gives the Tribunal written notice to the name and address of another person (the authorised recipient) authorised by the application to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
(c)the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
The applicant’s contention must therefore fail. The Tribunal was required to comply with the provisions of s.379G and did so by sending the letter of 7 January 2005 to the applicant’s migration agent. It was the applicant who advised the Tribunal in her application for review that she consented to the agent receiving documents relating to her application.
I am satisfied that there is nothing in the Tribunal decision that would lead me to conclude that the Tribunal decision is affected in any way by jurisdictional error or error of law or that the applicant was denied the opportunity to comment on information. I am satisfied that the Tribunal complied with its obligations under the Act. It is apparent that the letter of the applicant’s migration agent dated 31 January 2005 constituted a consent to the Tribunal deciding the application without the applicant appearing before it for the purposes of s.360(1)(2)(b) of the Act.
Accordingly, as the decision of the Tribunal is not affected by jurisdictional error or error of law the application must be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Pascoe CFM

Legal Associate: Peter Smith

Date: 19 September 2005