Hussain v Minister for Immigration
[2004] FMCA 978
•22 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUSSAIN & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 978 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of temporary business entry (Class UC) visas – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.65(1)(L), 499
Judiciary Act 1903 (Cth), s.39B
Migration Legislation Amendment Act (No. 1) 1998
Migration Regulations 1994 (Cth), Sch 2, cl.457.223(4)(a)-(h), (6)(b)
Liu v Minister for Immigration & Multicultural Affairs [2000] FCA 1544
Yan v Minister for Immigration & Multicultural Affairs [2001] FCA 819
Abeywardane v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 255
Park v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 346
Ayoub v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 968
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Jankovic v Minister for Immigration & Ethnic Affairs (1995) 56 FCR 474 (FC)
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| First Applicant: Second Applicant: | MOHAMMAD MUNIR HUSSAIN BAZLUN NAHAR BILKIS HASIN MD IMTIAZ HUSSAIN MOHAMMAD EBIYAN HUSSAIN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1443 of 2004 |
| Delivered on: | 22 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 8 December 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The first and second applicants appeared in person with the aid of a Bengali interpreter.
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1443 of 2004
| HUSSAIN & ORS |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal) handed down on 21 April 2004, affirming a decision of the delegate of the respondent (“the delegate”) to refuse to grant the applicants temporary business entry (Class UC) visas.
Background
The first applicant, Mr Mohammad Munir Hussain, a national of Bangladesh, born on 11 April 1958 applied with his wife, Ms Bazlun Nahar Bilkis born on 26 January 1962 and their sons, Mr Hasin Mohammad Imtiaz Hussain born on 26 July 1988 and Mr Mohammad Ebiam Hussain born on 5 May 1993 for temporary business entry (Class UC) visas on 14 August 1998 (Court Book pp.1-18) (“CB”). The delegate’s decision to refuse to grant the visas was made on
25 February 1999 (CB pp.113-116).
The first applicant lodged an application for an internal review by a review officer with the Department on 10 March 1999 (CB pp.122-125). This became an application for review to the Tribunal on 1 July 1999 by way of a transitional provision in the Migration Legislation Amendment Act (No. 1) 1998. The decision was reviewable by the Tribunal and the application for internal review was validly made by a person with standing to apply for the review. The Migration Act 1958 (Cth) (“the Act”) and the various regulations made under that Act, principally the Migration Regulations 1994 (“the Regulations”) provide for different classes of visas and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under s.499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (“PAM 3”) and the Migration Series Instructions (“MSI”) produced by the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”). The Tribunal is required to have regard of policy and apply it unless there are cogent reasons for departing from that policy (CB p.585).
The first applicant arrived in Australia on 21 November 1997 as a holder of a visitor’s visa (short stay) and departed on 17 December 1997. The first applicant returned to Australia on 21 June 1998 as a holder of a subclass 456 (business (short stay)) visa and was accompanied by his wife and two sons who entered Australia as holders of visitor visas (short stay). His wife and two sons were subsequently granted visitor visa (long stay) visa on 15 July 1998, which ceased on 30 September 1998. The first applicant was granted a visitor visa (short stay) on 16 July 1998 which also ceased on
30 September 1998. The applicants have since held bridging visas granted on the basis of the applications for visas which are the subject of the review process. The bridging visas have allowed the applicants to travel outside Australia, which at the time of the Tribunal’s decision they had done on seven occasions for periods of two or three months each time. Departmental movement records indicate that on their last trip the applicants departed Australia on 21 November 2003 and returned on 9 January 2004 (CB p.586).
On the applicants return to Australia in June 1998 they lodged new applications for business entry (Class UC) visas contained in the following subclasses: subclass 456 (business (short stay)) and subclass 457 (business (long stay)). Subclass 456 was not relevant as the applicants were seeking visas for longer than three months. Subclass 457 visas can be obtained on a number of grounds. The grounds on which the visa applications were made were sponsorship by a business operating in Australia, other than in relation to a labour agreement or a regional headquarters agreement. No claims have been made in respect of other grounds and the material before the Tribunal did not suggest that the applicants met any of the other grounds (CB p.586).
One necessary criteria for a grant of a subclass 457 visa on the basis of sponsorship by an overseas business is that it relates to an activity that “is the subject of an approved business nomination by the employer” (Paragraph 457.223(6)(b) of Schedule 2 to the Regulations). The nomination of the activity of MM International was refused by the delegate on 25 February 1999 (CB p.586).
Under Regulation 1.20H an approved business nomination can only be made by a “business sponsor” (Paragraph 4.25(c) of the Regulations). A “business sponsor” is defined in Regulation 4.02 as “a pre-qualified business sponsor, or a standard business sponsor, within the meaning of Division 1.4”. A business must be lawfully operating a business in Australia to be approved as a business sponsor (see Regulation 1.20D). An “overseas business” that is not yet operating a business activity in Australia cannot be a business sponsor. However, there is a provision for an “overseas business” to nominate an activity and part of that consideration is whether the business would be likely to be approved as a standard business sponsor (CB pp.586-587).
The Tribunal’s findings and reasons
The opening paragraphs of the Tribunal’s findings note:
“The Department’s files and Tribunal’s files disclose that the visa applicant has had four different advisers in this matter and he used the services of a fifth adviser in his appeal to the [Federal Court] of Australia against the decision of this Tribunal, differently constituted, to affirm the Department’s decision to refuse the application for approval of his sponsorship.”
“The Tribunal is not prepared to accept that the visa applicant did not, or does not, understand the issue of this application which was clearly stated in the primary decision.” (Court Book p.594 [23]-[24]).
The Tribunal then goes through the various aspects of its findings:
·The applicant had the benefit of professional advice from five different advisers and it is inconceivable that all were derelict in the advice proffered.
·The applicant received six s.359A letters and oral advice from the Court Registry on the receipt of one of those letters.
·It was claimed that the second applicant (the wife) was legally trained in both Bangladesh and Australia and that she did not know or advise her husband of the issues relevant to the case.
·That a new visa application filed in 2003 in the Department’s Perth office was not relevant to this application.
·The large number of medical reports filed by different doctors, which covered a wide range of complaints and symptoms, different for each treating doctor. No reference was made to the complaint or symptoms purported by other medical practitioners.
·The inconsistency of behaviour in that the first applicant had a serious medical condition and was on heavy medication yet was away from his residence driving heavy vehicles.
·The constant attempts to delay hearings of the Tribunal because of sickness or the unavailability of legal representatives.
At the time the Tribunal was considering its decision, the first applicant indicated he had found a new business sponsor which was an overseas business and it was prepared to sponsor the first applicant. There is no evidence however that an application was lodged. The Tribunal found that the first applicant had ample time to find an approved business sponsor and that the Tribunal had cooperated with the first applicant to extend the time limits to enable him to provide evidence that he had the approved sponsor. The Tribunal found that the first applicant had been aware since the date of the delegate’s decision for the need to have an approved business sponsor. The applicant had failed to show any cause of action that had been undertaken to secure such a business sponsor relevant to the application before the Tribunal.
Application for review of the Tribunal’s decision
On 17 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903, setting out the following grounds:
1.“The applicant was ill and informed to the Tribunal and submitted medical reports about the applicant’s illness to postpone the hearing. But the Tribunal didn’t consider the applicant’s request. As such the applicant failed to attend the hearing. The Tribunal failed to ensure the procedural fairness.
2.The Tribunal exercised its powers not based on proper reasoning.
3.The Tribunal made a jurisdictional error deciding the merits of the case.
4.The Tribunal failed to accord natural justice deciding the case.”
The law
The relevant Regulations that relate to subclass 457 (business) (long stay) visas that the first applicant is seeking is Regulation 457.223(4):
(4)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; and
(ii)the employer mentioned in subparagraph 1223A(3)(d)(i); and
(c)the applicant is nominated, in accordance with approved form 1068, 1196 or 1196 (internet), in relation to the activity by the employer; and
(d)the applicant has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed; and
(e)the applicant demonstrates, if so required by the Minister, that he or she has the skills necessary to perform the activity; and
(f)for an applicant in respect of whom there is a nomination of an activity under regulation 1.20G – the Minister is satisfied that:
(i)the applicant will be paid at the level specified in the nomination; and
(ii)that level will be at least the minimum salary level that applied at the time the nomination was made; and
(g)for an applicant in respect of whom there is a nomination of an activity under regulation 1.20GA – the Minister is satisfied that:
(i)the applicant will be paid at the level specified in the nomination; and
(ii)that level will be not less than the level of remuneration provided for under relevant Australian legislation and awards; and
(iii)the applicant’s working conditions will be no less favourable than working conditions provided for under relevant Australian legislation and awards; and
(h)for a standard business sponsor – the Minister is satisfied that the position to be filled by the applicant has not been created only for the purposes of securing the entry of the applicant to Australia.
The applicant has made no claims to satisfy any other subclauses of Regulation 457.223. Therefore, the applicant’s application for a visa has to be refused: see s.65(1)(b) of the Act:
Subdivision AC-Grant of Visas
65 Decision to grant or refuse to grant visa
(1)After considering a valid application for a visa the Minister:
(b) is not so satisfied, is to refuse to grant the visa
Submissions
The first and second applicants appeared self represented with the aid of an interpreter. The applicants had previously attended a directions hearing on 24 August 2004 and signed Short Minutes of Order requiring the applicants to file and serve an amended application giving complete particulars of each ground of review to be relied upon by the applicants in their application and any evidence upon which the applicants proposed to rely by 8 November 2004. These orders were not complied with however the first applicant filed extensive written submissions in support of his grounds. These submissions canvassed a wide range of issues in the general area of judicial review of Tribunal hearings. A number of broad statements were made alleging that the Tribunal failed in procedural fairness, natural justice, made errors in law, refused documents and that the Tribunal failed to identify the errors in law made by the Department. There was also a general allegation that the Tribunal did not believe the first applicant was sick. Attached to the submissions were a large number of medical certificates referring to various physical and mental conditions suffered by the first applicant. Some of the certificates were general in nature but they stated he was unfit for work and others were more detailed documents setting out the nature of his depressive state, and indicating that one of the stressors was the issue of these immigration matters. Also contained within the correspondence was a joint venture agreement between the first applicant and a party in Dhaka, Bangladesh who market and operate a fleet of prime movers and trailers in Australia. There was also general correspondence between the first applicant and the respondent’s solicitors regarding the delivery of the Court Book and some Departmental forms requesting access to documents.
When invited to address his submissions, the first applicant indicated that although he had attended Court he was suffering from depression and wanted to discuss his general medical condition which he claimed was as a result of the Department, the Tribunal and the Federal Court failing to support his case.
The first applicant’s contention was that he had had insufficient time in which to prepare his case. This was despite the original business visa application having been lodged in August 1998. The delegate refused to grant the visa in February 1999 and from that date the first applicant or one of the five various advisers retained by him from time to time must have been aware of the necessity to prepare for a hearing if that original delegate’s decision was to be challenged.
The first applicant also indicated that he had retained a barrister, Mr Stephen Hedgerdis, to represent him however he was not available for the hearing because he was engaged on another matter. No notice of appearance or formal application seeking an adjournment was received from Mr Hedgerdis was received by the Court.
Mr T Reilly of Counsel, appearing for the respondent, filed written submissions prior to the hearing. It was submitted that the first applicant, in his application for a visa, had claimed to be sponsored by an Australian business, MM International (CB p.5). To obtain such a visa the first applicant had to satisfy clause 457.223(4)(b)(1) which required that the Australian business be a “pre-qualified business sponsor” or a “standard business sponsor” as at the date of the Tribunal’s decision. These words have the same meaning as in Division 1.4A of the Regulations: 457.111(1), and therefore mean a person approved as a pre-qualified business sponsor or a standard business sponsor in accordance with Regulation 1.20D. The Tribunal noted that MM International had been refused approval as a sponsor on two occasions (CB p.586 [11] and p.587 [13]). Clause 457.223(4) was not satisfied and the first applicant had made no claim to satisfy any other paragraphs of clause 457.223. It was submitted therefore the first applicant’s application for a visa had to be refused under s.65(1)(b) of the Act: see Liu v Minister for Immigration & Multicultural Affairs per Mathews J at [4]-[5]; Yan v Minister for Immigration & Multicultural Affairs per Emmett J; Abeywardane v Minister for Immigration & Multicultural & Indigenous Affairs per R D Nicholson J; Park v Minister for Immigration & Multicultural & Indigenous Affairs per Hely J, Ayoub v Minister for Immigration & Multicultural & Indigenous Affairs.
The Tribunal made the following finding:
“The Tribunal finds that the visa applicants’ proposed employer has not been approved as a business sponsor as required by relevant subclauses of clause 457.223. The Tribunal finds that the visa applicants do not meet criteria for Subclass 456 visas, or criteria for Subclass 457 visas. The Tribunal must therefore affirm the decision under review.”
It was submitted that it was apparent that the Tribunal’s decision concerned a pure question of fact: whether MM International had been approved as a sponsor or not. The Tribunal found it had not, a view that was plainly open for the reasons the Tribunal gave. It was submitted that the Court cannot review the merits of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang. It was further submitted that there was no error of law in the Tribunal making a wrong finding of fact: Abebe v Commonwealth of Australia at [137].
Counsel submitted that the first applicant complained about the failure of the Tribunal to adjourn the proposed hearing date. The Tribunal’s reasons record exhaustive attempts to accommodate both repeated requests for adjournments and the claims that the first applicant did not understand what the case was about. It was submitted that the Tribunal complied with any conceivable requirements of procedural fairness, and with its statutory obligations, so this ground was not made out. It was submitted that the remainder of the applicants’ application does not properly particularise any error in the Tribunal’s decision.
It was submitted that the simple fact of the matter was that, in the absence of an approved sponsor, the applicants were not entitled to visas and the Tribunal’s decision was inevitable. It was further submitted that it would therefore be inappropriate to withhold relief even if some hypothetical error was demonstrated: Jankovic v Minister for Immigration & Ethnic Affairs at 477. Counsel submitted that it would be open to infer from the particular facts of this case that the first applicant is merely using a merits review and the judicial review process in order to extend his and his family’s presence in Australia without any legitimate belief in the merits of either his application to the Tribunal or to this Court.
Conclusion
The first and second applicants in these proceedings were representing themselves and although they have made extensive written submissions they do not address the issue that has been decided by the Tribunal. Nor are the grounds in the application specific to the issues in this case. However, where an applicant is self represented the Court must independently consider whether an arguable case based on the materials could have been made out: Yo Han Chung v University of Sydney & Ors. I note that the first applicant claims that he has retained a legal representative to present his case but, as mentioned above in paragraph 17, this Court has not received any formal application to have the matter adjourned due to the unavailability of Counsel. The date of the substantive matter to be heard by this Court was allocated on 24 August 2004. An informal application was made by the first applicant from the bar table, indicating that he wished a further three weeks to prepare his case. From what I have read in the Court Book, submissions and supporting documentation, I am not convinced that the granting of further adjournments in this matter will have any effect on the ultimate outcome.
I indicated to the Court that I was contemplating the appointment of the second applicant (the wife) as a litigation guardian for the first applicant in order to progress the matter. The second applicant has had formal legal education in both Bangladesh and Australia. She has been encouraged by her current employer to pursue local registration as a lawyer in order to assist the company. When invited the second applicant declined to address the Court other than to talk about the first applicant’s depression. The depression, according to a number of the medical reports submitted by the first applicant, was triggered by the various visa applications and the unsuccessful outcome to the challenges.
I accept the submissions of Mr Reilly that the issue central to this matter is one of determining facts and whether those facts satisfy the requirement of the Act’s Regulations. The authorities quoted by Mr Reilly support that contention. I do not believe that further adjournments are going to change the ultimate outcome. I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicants’ claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicants pay the respondent’s costs and disbursements of and incidental to the application on an indemnity basis.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 December 2004
0
0