Hu v Minister for Immigration
[2005] FMCA 1030
•28 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HU & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 1030 |
| MIGRATION – Review of decision of MRT – where the applicant sought a temporary business entry visa and was declined – where a concurrent application for approval as a standard business sponsor was declined and whether this caused the Tribunal to fall into jurisdictional error – whether the applicant had an “accrued right” for any decision refusing the sponsorship allocation to be reviewed by rhe Tribunal as part of his own application – whether a legitimate expectation creates a duty to grant a right. |
| Migration Act 1958 Migration Regulations 1994 Migration Amendment Regulations (No 4) 1999 (SR 68 of 1999), Regulation 4.02(4)(a) Acts Interpretation Act 1901, s.48(2)(repealed), s.50(repealed) |
| Handa v The Minister for Immigration [2001] FCA 1830 Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 NAAV v Minister for Immigration [2002] FCAFC 228 |
| Applicant: | JOO SUNG HU & ORS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & MRT |
| File Number: | SYG 1966 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 1 July 2005 |
| Date of Last Submission: | 5 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2005 |
REPRESENTATION
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs assessed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1966 of 2005
| JOO SUNG HU & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULUTRAL & INDIGENOUS AFFAIRS & MRT |
Respondent
REASONS FOR JUDGMENT
This application seeks judicial review of a decision of the Migration Review Tribunal (the “MRT”) made on the 23 July 2003. The applicant and his family had sought a temporary business entry (Class UC) subclass 457 business (long stay) visa. He had arrived in Australia in 1993 and was granted a series of visas prior to 1997. On 11 March 1997 he was granted a subclass 457 visa which expired on 11 March 1998. On that day he applied for a further 457 visa. The applicant made his application based upon sponsorship by a business operating in Australia. The relevant business was Korean Television Network (“KTN”) of which the applicant was going to be employed as operating director. At the same time as the applicant lodged his visa application KTN lodged an application for approval as a business sponsor.
Under the relevant regulation 1.20D the decision as to whether or not to approve an application for approval as a standard business sponsor was to be made by the minister. In pursuit of that decision documentation was required from KTN which was provided in 1998. On the 18 June 2001 the sponsorship application was declined. At the same time the visa application for the applicant was also declined. The decision was sent to the wrong address and the applicant was renotified in a letter of 26 July 2001.
At the time the MRT came to decide the applicant’s review for the subclass 457 visa there was no existing standard business sponsorship for KTN. The applicant accepts that without such a standard business sponsorship he did not meet the criteria for subclass 457.223 and would therefore not be granted a visa. The sole question before me was whether or not the Tribunal fell into jurisdictional error by not reviewing the decision made on 18 June 2001 by the same delegate to refuse KTN approval as a standard business sponsor. No application for review of the sponsorship decision had been made within time (or probably at all) by KTN. The applicant contends that no such application was necessary because he had an “accrued right” when he lodged his application for the visa on 11 March 1998 for any decision ultimately refusing the sponsorship application to be reviewed by the Tribunal as part of his own application.
On 11 March 1998 there were no specific provisions in either the Migration Act 1958 (the “Act”) or the Migration Regulations 1994 for merits review of decisions refusing approval as a business sponsor but there were administrative arrangements in place whereby members of the MRT were delegated to reconsider the decision of the Minister through its delegate. It is accepted that in practice they did so as part of the review of a decision refusing an associated visa application; Handa v The Minister for Immigration [2001] FCA 1830 per Finkelstein J.
On 1 June 1999 there were significant changes to the Act which abolished the Immigration Review Tribunal and replaced it with the Migration Review Tribunal. The process of internal review previously conducted by the Migration internal review office was also abolished. The MRT was given specific jurisdiction to review sponsorship decisions per the Migration Amendment Regulations (No 4) 1999 (SR 68 of 1999) Schedule 1. In these regulations there was contained regulation 4.02(4)(a) which provided that an MRT reviewable decision in s.338(9) of the Act included:
“(a) A decision under regulation 1.20D to reject a person’s application”
Regulation 4.02(4)(a)provided that an application to the Tribunal in respect of such a decision could only be made “by a person to whose application the decision relates”. In this case KTN. The Regulations were further amended on 1 July 2003 so that the current regulation 4.02(4)(a) now reads as follows:
“(4) For subsection 338 (9) of the Act, each of the following decisions is an MRT-reviewable decision:
(a) a decision under regulation 1.20D, as in force before, on or after 1 July 2003 , to reject a person’s application;”
The applicant argues that this amendment was made plainly because there was a perceived difference between a sponsorship application made under Regulation 1.20D before 1 July 2003 and one made after that date. The respondent says that nothing turns upon the amendment and it does not apply on the facts of this case. It seems clear that the decision of 18 June 2001 refusing KTN approval as a business sponsor was an MRT reviewable decision. The difference between the parties is that the applicant argues that there is an “accrued right” for the Tribunal to review the decision as part of the applicant’s application for review of his own visa. The applicant’s basis for asserting this accrued right is said to arise by virtue of ss.48(2) of the Acts Interpretation Act 1901 which has now been repealed but which at the time of the decision was in the following form:
“(2) A regulation, or a provision of regulations, has no effect if, apart from this subsection, it would take effect before the date of notification and as a result:
(a) the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of notification would be affected so as to disadvantage that person; or
(b) liability would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of notification.”
The respondent on the other hand argues that s.48 is not relevant to this case and that the relevant section would be s.50 (also now repealed) which at the relevant time was in the following form:
“Where an Act confers power to make regulations, the repeal of any regulations which have been made under the Act shall not, unless the contrary intention appears in the Act or regulations affecting the repeal:
(a)affect any right, privilege, obligation or liability acquired, accrued or incurred under any regulations so repealed; or
(b)affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any regulations so repealed., or
(c)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act or regulations had not been passed or made.”
The applicant’s case is that the new Regulation 4.02(4)(a) whilst appearing to operate so as to enhance the rights available to an applicant by making available a formal right of review to the MRT in respect of an adverse sponsorship decision, in fact imposed constraints on an applicant by requiring the lodgement of a second MRT review application and the payment of an additional fee in respect of that application. The right of a visa applicant to have the whole of his visa application, both sponsorship and application itself, reviewed at the one time for the one fee was lost. This disadvantage to the applicant would thus be contrary to s.50 of the Acts Interpretation Act. But it seems to me that the Migration Amendment Regulations (No 4) 1999 did not have the effect of repealing regulations which conferred a right to a hearing. Those regulations actually created the right whereas previously there was only a practice. In order for this new right to be exercised a fee was required. But that did not disadvantage the applicant because he had not right beforehand, at best he had a legitimate expectation that both visa applications would be dealt with at the same time for the payment of only one fee.
It is now well established that a legitimate expectation will not necessarily create a duty to grant a right. In Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 McHugh J at [305] said:
“The doctrine of legitimate expectations is concerned with procedural fairness and imposes no obligation on a decision-maker to give substantive protection to any right, benefit, privilege or matter that is the subject of a legitimate expectation.”
Mason CJ and Deane J expressed the same view and added at [291]:
“The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law.”
Subsequent decisions of both the High Court and the Full Federal Court have confirmed this approach: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (16 November 2000); Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228.
The respondent argues also that even if a right did exist on 11 March 1998 and the Migration Amendment Regulations (No 4) 1999 operated as repeal within s.50 “the scheme created by those regulations is inconsistent in such a right and manifests a contrary intention”. I am of the view that the Tribunal was correct in determining that an application for review of a decision by the sponsor was required to be made by the sponsor within the time limits provided. There being no such application there was not in existence at the time of the review of the applicant’s visa application the required nomination. Thus the Tribunal’s decision to affirm the decision of the delegate was correct. I dismiss the application and order that the applicant pay the respondent’s costs which I assess in the sum of $4,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
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