Huq v Minister for Immigration - [2007] FMCA 1762

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUQ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1762

MIGRATION – Review of Migration Review Tribunal decision – visa – Offshore Skilled Australian-sponsored visa – refusal – application to Tribunal made by applicant not sponsor – application to Tribunal required to be made by sponsor – Tribunal had no jurisdiction to entertain review application.

Migration Act 1958, ss.338, 347, 348, 470, 474, 478, 478A, 480
Migration Regulations 1994, sch. 2, cl.138

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Yong Jun Qin v Minister for Immigration & Multicultural Affairs (1997) 144 ALR 695
Zhen Gang Liu v Minister for Immigration & Multicultural Affairs, unreported, Federal Court of Australia, Davies J, 18 March 1997
Wickremasinghe v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 125

Applicant:

FERDOUS ARA HUQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1489 of 2007

Judgment of:

Cameron FM

Hearing date:

25 September 2007

Date of Last Submission:

25 September 2007

Delivered at:

Sydney

Delivered on:

25 September 2007

REPRESENTATION

Counsel for the Applicant:

Mr. B. Zipser

Solicitors for the Applicant:

Lewis Law

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application be dismissed.
The second applicant pay the first respondent's costs fixed in the amount of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1489 of 2007

FERDOUS ARA HUQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The second applicant is a citizen of Bangladesh. The first applicant is the sister of the second applicant. She is an Australian citizen and a sponsor of the visa application. The second applicant sought a Subclass 138 Offshore Skilled – Australian-sponsored visa which was rejected. He sought review at the Migration Review Tribunal (“Tribunal”), was unsuccessful and he, together with his sister, brings these proceedings.
In these judicial review proceedings the Court cannot rehear the applicant's application for a visa. Its task is to determine whether the Tribunal's decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow the application will be dismissed.

Background facts

In the visa application the second applicant was described as having been employed as an Executive Officer for Accounts for Meghna Life Insurance Company from November 2000 until December 2004. His visa was pressed on the basis of his skills as an auditor and having been successfully assessed by the relevant authority. The second applicant had, it is said, completed a Bachelor of Commerce at the University of Chittagong and also a Master of Commerce in Management at the National University (Bangladesh). At the time of the visa application the second applicant was completing a Masters of Accounting at Central Queensland University.
The Minister's delegate refused the visa application on 16 October 2006 and in his decision record the delegate stated that he was not satisfied that the applicant met the criterion 138.226 – which was that the applicant had vocational English. This followed a degree of correspondence between the Department and the second applicant about his English language skills.

The Tribunal’s decision and reasons

After being denied a visa by the Minister's delegate the second applicant's migration agent made application to the Tribunal for review of the delegate's decision. The categories of decisions which the Tribunal can review are set out in s.338 of the Act. It has been agreed between the parties today that the relevant subsection of that section is sub-s.(5) which provides:
A decision to refuse to grant a non-citizen a visa is an MRT‑reviewable decision if:
(a)   the visa is a visa that could not be granted while the non-citizen is in the migration zone; and
(b)   the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i)     an Australian citizen; or
(ii)     a company that operates in the migration zone; or
(iii) a partnership that operates in the migration zone; or
(iv)    the holder of a permanent visa; or
(v)     a New Zealand citizen who holds a special category visa.
The reason sub-s.338(5) is the relevant subsection is that one of the criteria to be satisfied at the time that the application for the visa was made included that the visa applicant was sponsored by a brother or sister who had turned 18, and was then an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Clearly the first applicant in these proceedings fell into that category.
The other important issue is item 138.411 which provides:
The applicant must be outside Australia when the visa is granted.
Because of those criteria the decision in question falls within s.338(5).
The significance of the fact that s.338(5) applies to the application for review which was made to the Tribunal is that the application for a review was governed by s.347(2)(b) of the Act which says that:
An application for review may only be made by sponsor or nominator referred to in the subsection concerned.
That is to say, the review application to the Tribunal ought to have been made by the first applicant rather than by the second applicant.
The application which was made which is found at Court Book (“CB”) pages 113 to 120 indicates that the review applicant was Mohammad Sariful Huq Sufy. At no point in that review application form is the first applicant in these proceedings mentioned. This is notwithstanding the fact that the form in question did provide for proper completion in accordance with s.347(2)(b) in that the first applicant's name could have been inserted on the first page of that form in section A and the name of the second applicant in these proceedings could have been inserted in section D of that form. Consequently, the Tribunal found as a matter of fact that the second applicant in these proceedings was the applicant to it and, on that basis, it held that it had no jurisdiction to entertain the application for review.

Proceedings in this Court

The grounds of the amended application filed in this Court on 4 June 2007 were not the basis of the submissions put on behalf of the applicants. What was submitted was:
(a) The Tribunal erred in finding that the application for review was not made by Ms Ferdous Ara Huq, the sponsor ("application made issue").
(b) Even if the applicant [sic: application] was not made by the sponsor, the Tribunal erred in finding that the application was not valid. ("invalidity issue").
Dealing with each of these issues in turn:

Application made issue

The first ground raised by the applicants under this heading is that:
a)the Tribunal made no reference to the evidence before it by way of a statutory declaration made by Ms Huq (CB 143) that it was she who had instructed the migration agent to lodge the application for review; and
b)the Tribunal should have set out all findings of material fact.
In relation to the first of these issues, namely that the Tribunal made no reference to this evidence in its reasons for decision, I find that this assertion is not well made on the facts. At page 3 of its decision (CB 152) the Tribunal said this:
The Tribunal has considered the submissions made by the applicant's representative and accepts that Ms Huq may have authorised the lodgement of an application to review the delegate's decision. However, on the information before it, the Tribunal finds that despite any such intention, that is not what occurred.
In my view that is a sufficiently clear reference to what was contained in the statutory declaration found at CB 143 to demonstrate that the Tribunal did make reference and gave consideration to what Ms Huq had said in her statutory declaration.
As to the second issue, that the Tribunal was required to set out the findings on any material questions of fact, that is exactly what the Tribunal did. The Tribunal made reference to the application which had been made to it and, using the information contained in that application, drew the not surprising conclusion that the person making the application for review was the second applicant in these proceedings, not his sister. Consequently that element of this first asserted ground for review is not made out.
The second ground raised by the applicants under this heading refers to the passage which is quoted above at [14] and it was said that there was no evidence to support the finding that:
… that is not what occurred.
It is not appropriate that the Tribunal's decision should be scrutinised with an eye keenly attuned to the perception of error and I believe that what the Tribunal was saying in the quoted passage was that Ms Huq may indeed have authorised the lodgement of an application to review the delegate's decision perhaps in her name or perhaps on her behalf. In this regard it is important to keep in mind what Ms Huq actually said in her statutory declaration:
4)    After discussion with my brother, it was agreed that we would proceed to lodge an application for appeal with the Migration Review Tribunal (MRT). I instructed our migration agent to lodge the appeal application on our behalf.
5)    I confirm that Ms [name given] is appointed as my migration agent to assist my brother to obtain permanent residency. She was under full instructions of myself to lodge the appeal application and to handle all matters relating to such on my behalf.
6)    It is regrettable that the confusing nature of the MRT application form has mislead [sic] us to erroneously complete the form, and it was signed by my brother instead of myself. However, I confirm that it was a process that we completed together and I gave full instruction for the appeal to be lodged. (CB 143).
It is open to interpret that statutory declaration as the first applicant saying that the application should have been made in her name rather than in her brother's and it is in that sense that I understand the passage from the Tribunal's decision quoted above at [14] and referred to in the applicant's written submissions.
As to the Tribunal's conclusion that:
… that is not what occurred
namely, that the application to it was not actually made in the name of Ms Huq, that was a conclusion which was open to it on the evidence.
The third ground raised under this head is expressed in the applicant's written submissions in the following terms:
(a) an application to the Tribunal can be made by more than one person;
(b) section 347 of the Act does not require as a matter of validity that each applicant's name be listed in section A of the approved form; and
(c) there was evidence before the Tribunal that both the visa applicant and sponsor instructed their agent to apply for a review of the delegate's decision.
and it submitted that it was open to the Tribunal to conclude that the application to the Tribunal was made by the visa applicant and the sponsor.
It may be that s.347 of the Act permits more than one person to be the applicant to the Tribunal. Possibly there might be more than one sponsor, in which case there might be more than one applicant. However, the section is clear enough that the sponsor must at least be one of the applicants in the application to the Tribunal. So, the fact that there might possibly be an entitlement for more than one person to put their name on the application does not avoid the necessity for the person who is actually appropriate to be included on the form to be in fact included as an applicant to the Tribunal.
As to the assertion that the Tribunal had evidence before it that the visa applicant and her sponsor instructed their agent to apply for review, the Tribunal made a contrary decision which was open to it on the evidence. The fact that the applicant disagrees with that finding does not mean that it was not one which was open to the Tribunal. Consequently this element of this asserted ground of review is not made out.
In the course of argument today the applicants tendered a letter from the Tribunal dated 15 September 2006 which related to other proceedings. It appears from the documents forming part of that exhibit that those are proceedings where the wrong person's name was put on the application, a submission was made to the Tribunal to consider changing the name or dealing with it in a particular fashion and the Tribunal decided that the application for review had been validly made on the basis that the person actually making the application was the agent of the person who should have made the application.
Whether or not that was the appropriate finding of fact to be made in that case, it was not the finding of fact which was made in this case. The finding of fact which this Tribunal made was that the application was made by the second applicant. Having concluded that the second applicant was the only applicant before it, the Tribunal made the only decision which was open to it, namely that it had no jurisdiction. Consequently, I find that the Tribunal did not err in finding that the application for review was not made by Ms Huq the sponsor.

Invalidity issue

The applicants' submissions were to the effect that although the wrong applicant was named on the application for review which was lodged with the Tribunal, this did not actually invalidate the application. In making the submission the applicants argued by analogy with a court's powers upon being seized of a matter, with particular reference to the procedural powers found in the rules made under the Federal Court of Australia Act 1976.
The question for consideration here is whether the Tribunal had jurisdiction to entertain the application which was before it. The cases to which the Court was taken involve fact situations where an incorrect respondent or an incorrect applicant had been set out in the application to the Federal Court seeking judicial review of migration decisions. The first decision the Court was taken to was Yong Jun Qin v Minister for Immigration & Multicultural Affairs (1997) 144 ALR 695, a decision of the Full Court of the Federal Court.
In that decision their Honours held that the question before them was one which was purely procedural and lay within the competence of the court. In reaching that conclusion their Honours referred to Zhen Gang Liu v Minister for Immigration & Multicultural Affairs, an unreported decision of the Federal Court of 18 March 1997, where Davies J is quoted as having said this:
Compliance with s.478(1)(b) is mandatory, s.478(2) so provides; but that does not mean to say that every relevant provision of the Federal Court Rules must be strictly complied with. The rules themselves provide for dispensation from compliance and for amendment. (Quoted in Yong’s case at 700).
Significant in Yong's case is that an application had been made to the Federal Court under s.478 of the Act as it then stood:
(1) An application under ss.476 or 477 must:
(a) be made in such manner as is specified in the rules of the Court made under the Federal Court of Australia Act, 1976;
(b) be lodged with the registry of the Federal Court within 28 days of the applicant being notified of the decision. (at 697).
Therefore, as long as an application was made within 28 days of the applicant being notified of the decision, it had been “made in such manner as is specified in the rules” of court made under the Federal Court of Australia Act. That is to say the court was seized of jurisdiction once an application was made which was cognizable by the rules of that court.
At 701 in Yong's case the Full Court quoted what Davies J said in Liu's case where his Honour said that there had been substantial compliance with the court's procedural requirements and that the defect which had occurred was one which the court could remedy. The Full Court of the Federal Court said that it would be surprising if the Act were to be construed to mean that the consequence of a failure by an applicant to take the procedural or formal step of correctly naming a particular party as a respondent was that the court lacked any jurisdiction to deal with any aspect of the matter.
Their Honours went on to say:
There is nothing that we can find in the language or evident intent of s.480 to suggest that a failure to name the Minister as respondent would have the effect of depriving the Court entirely of jurisdiction in the proceedings. (at 706).
The significance of the reference to s.480 is that at that time the Act provided in s.480 who the proper parties to judicial review would be. Therefore, as long as a proper application was made to the Federal Court, Yong's case demonstrates that the Court could correct any procedural errors in the application because s.470 indicated who the correct parties ought to have been.
The next case to which the Court was taken was Wickremasinghe v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 125. There, North J made specific reference to the decision of the Full Court in Yong's case and followed it, noting significantly that the Full Court had said at page 706 - 707:
The Court is seized of that matter upon the filing of an application applying for review of that decision. The same act does not deprive the court of its jurisdiction, by reason of any failure to identify or name a party correctly. (at 129).
Consequently, the issue before the Federal Court was whether the application was made to it in such a way as to give it jurisdiction. The fact that a party might have been incorrectly named did not alter the fact that the Court had been seized of a matter and that it had jurisdiction to correct procedural mistakes. The question here is whether the Tribunal has a similar power.
The Tribunal's jurisdiction to determine an application for review is not, as it was in the Federal Court, determined by the making of the application. The jurisdiction of the Tribunal is found in s.347. There is a number of elements which have to be satisfied before the Tribunal has jurisdiction to determine a review application but one of them is, in circumstances such as these, that the sponsor is the person making the application for review.
The applicants have suggested that the purposive approach to statutory interpretation would lead the Court to the conclusion that the Tribunal would have jurisdiction if the visa applicant made the application to the Tribunal for review rather than the sponsor. In my view, the section is abundantly clear and there is no room for the chosen interpretation. The section requires that the application for review be made by the sponsor, and by nobody else, and that unless the application for review is made by the sponsor it is not properly made.
Section 348 of the Act provides that if an application is properly made under s.347 the Tribunal must review the decision. However, that was not the case here. The application was not properly made. It is not a question as it was in Yong's case or Wickremasinghe's case that the Tribunal has jurisdiction, is seized of a matter and can make corrections to the documents which have been filed with it. Here it is a question that the Tribunal never got to that point because it never had jurisdiction in the first place. I conclude that the provisions of s.347(2) demonstrate a legislative purpose to invalidate any application which is not made in accordance with the terms of that subsection.
There is a subsidiary issue as to whether the first applicant had standing to bring these proceedings. I am of the view that she did not because s.478A provides that the person who seeks review in this Court must be the applicant in the review undertaken by the relevant Tribunal.

Conclusion

For all these reasons I conclude that there was no jurisdictional error on the part of the Tribunal and that the application must be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 30 October 2007