Haryani v Minister for Immigration

[2006] FMCA 1578

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARYANI v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1578

MIGRATION – Review of MRT decision − where applicant sought a temporary business entry visa − where applicant did not have requisite approved business sponsor − where Tribunal refused to delay making the decision on the application until a further application by the nominated business sponsor for approval was decided − whether denial of procedural fairness.

Migration Act 1958, ss.359A, 357A

Huo v Minister for Immigration (2002) FCAFC 383

Applicant: KIRAN HARYANI

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1092 of 2005

Judgment of: Raphael FM

Hearing date: 18 October 2006

Date of Last Submission: 18 October 2006

Delivered at: Sydney

Delivered on: 18 October 2006

REPRESENTATION

Counsel for the Applicant: Applicant in Person

Counsel for the Respondents: Mr J. Smith

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. The Migration Review Tribunal to be named as the second respondent to these proceedings.

3. Applicant to pay the respondent’s costs assessed in the sum of $4000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1092 of 2005

KIRAN HARYANI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is a skilled chef.  In October 2004 she sought a temporary business entry (Class UC) visa.  At the same time as her application for that visa was being considered by the delegate for the Minister, an application by her sponsor, a business known as Greeshma Spice ‘N’ Life, was made for approval as a standard business sponsor was also being made.  It is a requirement of an application for a class UC subclass 457 business (long stay) visa that the principal applicant be nominated by an employer who is an approved business sponsor.  There are other possible ways in which to obtain the subclass 457 visa, but none of them are relevant for the purposes of this case.  On 2 November 2004, the application by Greeshma Spice ‘N’ Life was rejected, so on 3 November 2004, when the delegate came to consider the application of Ms Haryani, she had not been nominated by an employer who was an approved business sponsor.  For that reason the delegate declined to grant Ms Haryani the temporary business (class UC) visa for which she had applied.

2. Ms Haryani sought review of the decision of the delegate from the Migration Review Tribunal. On 2 February 2005, the Tribunal wrote to her a letter pursuant to s.359A of the Migration Act 1958 (“the Act”) explaining and inviting comment from her on particulars of any information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review.  The information which it imparted to the applicant was the fact that at the time her application had been declined on 3 November 2004, she was not a person who had been nominated by an approved business sponsor.  The response to that letter was a fax from Naosams Migration Services addressed to the Tribunal, informing it that a new application had been lodged with the respondent by the proposed sponsor and asking the Tribunal to delay its decision in relation to the applicant until such time as a decision had been made upon the application for approved business sponsorship. 

3. The Tribunal considered the letter and determined that it was not prepared to await the decision of the Department and on 6 April handed down its own decision, in which it affirmed the decision of the delegate not to grant the applicant a visa on the same ground as that used by the delegate, namely the failure of the applicant to have, either at the time of the application or the consideration by the delegate, or at the time of the decision by the Tribunal, sponsorship from a pre-qualified business sponsor or a standard business sponsor.  Ms Haryani seeks review of the Tribunal’s decision and in a document handed to the court today states:

   “(1)    I disagree that the Tribunal did not have to consider my new business sponsor’s application.  I had notified MRT that I had a new business sponsor by fax on 24 March 2005.

   (2)  When I informed MRT of my new business sponsor, MRT had not decided my case.  I think therefore that MRT should have considered my new business sponsor.  I disagree with DIMA that MRT had considered my new sponsor’s case.” [This is a reference to a submission made by counsel for the Minister to this court.]

4. In essence, the applicant’s case is that she was denied procedural fairness because the Tribunal should have waited until the decision was made upon her sponsor’s application and then decided her application on the basis of the existence or otherwise of a standard business sponsor.  The difficulty which the applicant has in making out this argument is that it appears to fall foul of the decision of the Full Bench of the Federal Court in Huo v Minister for Immigration (2002) FCAFC 383, upholding a decision of Conti J, Huo v  Minister [(2002) FCA 617. In that case, an applicant for a similar type of visa had complained that the Tribunal should have waited whilst a review of the decision of the delegate in relation to the standard sponsor application was being determined. Conti J concluded at [31]:

   “I am therefore of the opinion that the application for review of Mr Huo made to this Court must fail. The Tribunal was entitled in the exercise of its discretion to withhold from awaiting the Tribunal's decision on the JNZ application, assuming that the Act allows room for the application of conceivably relevant rules of natural justice additional to what the legislation already stipulates. As Senior Counsel for the Minister rightly contended, there was no error of law apparent or manifest in the conduct of the Tribunal below. It was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled.”

   In the decision of the Full Bench at [10], their Honours said:

   “The second ground of appeal is that Conti J erred in finding that the Tribunal acted properly in refusing to adjourn the hearing or alternatively "in not combining the two matters". This appears to be an assertion that the Tribunal ought to have stayed the hearing concerning the appellant's application, pending determination of the application by JNZ for review of the refusal of its application for approval of its nomination. … Neither procedural complaint is of any substance.”

5. Ms Haryani does not even have the argument that the Tribunal refused to wait for another Tribunal decision.  Although the sponsor could have sought review of the decision to refuse its application, it chose not to do so and did nothing until a few days before the handing down of the Haryani decision when it belatedly made a further application. 

6. In the light of the content of s.357A of the Act and the decisions of the Full Federal Court and the Federal Court to which I have referred, I am unable to find that the Tribunal made a jurisdictional error when it decided not to wait for the outcome of the second application and to proceed to deal with Ms Haryani’s review on the basis of the then existing facts. There are no other complaints made of the Tribunal’s findings.

7. Ms Haryani’s application is dismissed.  I order that the Migration Review Tribunal be named as the second respondent to these proceedings; and that Ms Haryani pay the respondent’s costs, which I assess in the sum of $4,000.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: