Intwala v Minister for Immigration
[2007] FMCA 1693
•11 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| INTWALA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1693 |
| MIGRATION – VISA – Subclass 457 Business visa – Migration Review Tribunal – application for review of decision of Migration Review Tribunal – refusal of Temporary Business Entry (Class UC) visa – adjournment – whether the Tribunal unreasonably refused to adjourn the review – whether the Tribunal failed to have regard to relevant considerations – no reviewable error. |
| Migration Act 1958 (Cth) ss.359A, 363, 427, 425A |
| Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 distinguished Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152 distinguished SZFML v Minister for Immigration and Anor (No.2) [2005] FMCA 1947 referred to Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61 followed |
| Applicant: | JAWAHARBAI INTWALA |
First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 897 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 September 2007 |
| Date of Last Submission: | 25 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser |
| Solicitors for the Applicant: | Nil (direct access brief) |
| Counsel for the First Respondent | Ms Wong |
| Solicitors for the First Respondent | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 897 OF 2007
| JAWAHARBAI INTWALA |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a national of India, asks the Court to quash a decision of the Migration Review Tribunal signed on 12th January 2007 and handed down 2nd February 2007, affirming the decision that he is not entitled to the grant of a Temporary Business Entry (Class UC) Visa.
He relies on two grounds:
a)that the Tribunal did not act reasonably in deciding not to grant the Applicant an adjournment of the review in order to give him further time to have a new sponsorship application considered by the Department of Immigration and Citizenship; and
b)that the Tribunal did not take relevant considerations into account when it decided that it had given the Applicant a reasonable opportunity to have a new sponsorship and nomination application considered.
Background
The Applicant applied for a Temporary Business Entry (Class UC) visa on 22nd February 2000. A delegate of the Minister refused his application on 6th August 2005.
Counsel for the First Respondent Minister, Ms Wong, adopted the chronology of events set out in paragraphs the submissions prepared by Mr Zipser, counsel for the Applicant. I will set out that chronology in the following paragraphs 5 to 29.
In February 1999 the Applicant arrived in Australia on a subclass 676 visitor visa.
In February 2000 the Applicant applied for a subclass 457 business visa.
In June 2001 a delegate of the Minister refused to grant the Applicant a visa because he did not substantially comply with condition 8101 (‘The holder must not engage in work in Australia’) attaching to his previous visa.
In July 2001 the Applicant applied to the Migration Review Tribunal for review of the delegate’s decision.
In January 2003 the Applicant attended a hearing before the Tribunal.
In February 2003 the Tribunal made a decision affirming the delegate’s decision.
In February 2003 the Applicant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.
In August 2003 ‘consent orders were made remitting the application to the Tribunal for reconsideration on the basis that the Tribunal had probably committed a jurisdictional error. It was considered that the Tribunal had applied the incorrect tests and did not adequately address the issue of substantial compliance’.[1]
[1] Court Book at 70
Following the remittal, in November 2004 the Applicant attended a hearing before the Tribunal. In light of the history of the matter, the question before the Tribunal was whether ‘the Applicant has complied substantially with the conditions to which the visa (if any) held by the Applicant is or was subject’[2], in particular whether or not the Applicant had engaged in work in the relevant period.
[2] Court Book at 72
In January 2005 the Tribunal made a decision in which it found that the Applicant had substantially complied with the conditions of his last substantive visa. The Tribunal then remitted the application to the Department ‘for reconsideration with the direction that the primary visa application meets’ clause 457.221 of Schedule 2.[3]
[3] Court Book at 66
In the meantime:
a)In February 2000 Jamuna Sweets & Pastry had lodged a business sponsorship application and nomination application in respect of the Applicant.
b)In April 2000 ‘the sponsorship and nomination applications of Jamuna Sweets & Pastry were approved for a period of 3 years.’[4]
c)On 16 April 2003 the sponsorship and nomination from Jamuna Sweets & Pastry lapsed.
[4] Court Book at 68
In April 2005 Jamuna Sweets & Pastry lodged a new business sponsorship application.
In July 2005 a delegate of the Minister made a decision refusing to approve the business sponsorship application by Jamuna Sweets & Pastry, which decision was communicated to Jamuna Sweets & Pastry by letter dated 6th August 2005.
On 6th August 2005 a different delegate of the Minister made a decision refusing to grant the Applicant a subclass 457 visa on the basis that he did not have an approved business sponsor.
In August 2005 the Applicant applied to the Tribunal for review of a decision, presumably the decision to refuse to grant him a visa.
In March 2006 the Tribunal sent the Applicant a s.359A letter which stated among other things:
Information on this file discloses that decision was made on 26 July 2005 to reject the application made by Jamuna Sweets & Pastry for approval as a business sponsor…without there being an approved business sponsor, the visa criteria cannot be met.[5]
[5] Court Book at 102
In April 2006 the Applicant provided to the Tribunal a letter from Mr Singh of Jaipur Sweets in which Mr Singh stated that Jaipur Sweets was willing to be a business sponsor for the Applicant.
On 5th June 2006 the Tribunal received from the Applicant an undated letter from Mr Patel of Hukum Indian Restaurant in which Mr Patel stated that he was in the process of applying to be a business sponsor for the Applicant.
On 6th June 2006 the Applicant attended a hearing before the Tribunal. The Tribunal summarises at CB 1489.2-149.5 the Applicant’s evidence concerning his attempts to find a business sponsor.
In July 2006 Hukum Indian Restaurant lodged a business sponsorship and nomination application.
On 10th November 2006 Hukum Indian Restaurant withdrew the application and on 20th November 2006 the Applicant informed the Tribunal of this development.
On 20th November 2006 the Tribunal sent the Applicant a s.359A letter which stated among other things:
The Department’s records relating to the business sponsor Hukum Indian Restaurant indicates that the sponsor withdrew their nomination of you and your proposed employment on 10 November 2006…One of the requirements for a subclass 457 visa based on sponsorship by an Australian business is that the activity…is the subject of an approved business nomination by the employer…[6]
[6] Court Book at 132
On 27th December 2006 the Tribunal received a letter from the Applicant. The Applicant:
a)explained why Hukum Indian Restaurant withdrew its application for business sponsorship;
b)stated that he had found a new sponsor Ganesha Sweets & Pastries Pty Ltd which lodged a sponsorship application on 19th December 2006; and
c)appears to have attached to his letter the sponsorship application documents.
In January 2007 the Tribunal made a decision (handed down in February 2007) affirming the delegate’s decision that the Applicant is not entitled to a subclass 457 visa.
In March 2007 the Applicant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.
Application for Judicial Review
Counsel for the Applicant was granted leave to file in Court an amended application. In the amended application, the Applicant seeks these orders:
i)That the decision of the Tribunal be quashed;
ii)That the matter be remitted to the Tribunal differently constituted to be determined according to law; and
iii)Costs.
After discussion with the Bench, Mr Zipser indicated that he would not press that part of the order that sought that on remittal the Tribunal be differently constituted.
The grounds of the application are that the Tribunal found ‘it has given the visa applicant a reasonable opportunity to have a new sponsorship and nomination application considered by the Department’. In the circumstances of the case, the Tribunal should have given the Applicant further time in order for the sponsorship and nomination of Ganesha Sweets & Pastries Pty Ltd to be considered by the Department. The Tribunal’s failure to give the Applicant further time involved jurisdictional error. Alternatively, the Tribunal fell into jurisdictional error in finding that ‘it has given the visa applicant a reasonable opportunity to have a new sponsorship and nomination application considered by the Department’.
The Applicant’s submissions
Mr Zipser submitted that s.363(1)(a) of the Migration Act provides in part:
For the purpose of the review of a decision, the Tribunal may…adjourn the review from time to time.
The Tribunal must act reasonably in deciding whether or not to adjourn the review from time to time. In Minister for Immigration and Multicultural Affairs v Bhardwaj[7] Gaudron and Gummow JJ stated:
A failure to accede to a reasonable request for an adjournment can constitute procedural unfairness.[8]
[7] (2002) 209 CLR 597
[8] (2002) 209 CLR 597 at [40]
In Minister for Immigration and Multicultural Affairs v SZFML[9] the Full Court of the Federal Court stated:
It is implicit in the statutory scheme that the Tribunal’s invitation to a person to appear, where it has been accepted, cannot be compromised by rescheduling the appointed hearing to another date on unreasonably short notice. However, it is not suggested that that occurred here. It is open to the Tribunal in the conduct of a hearing to adjourn it from time to time. If express authority were necessary it would be provided by s.427. In any event there is an implied incidental power for the Tribunal to do so in order to give practical effect to its obligation to provide a hearing. The power of the Tribunal to reschedule a hearing of which notice has been given is of the same character. Provided the notice of the rescheduling is reasonable there is no requirement, applicable to that procedure, for the application of the minimum prescribed period applicable to the notice required by s.425A.[10]
[9] [2006] FCAFC 152
[10] (2005) 154 FCR 572 at [82]
Mr Zipser submitted that in the present case the Tribunal did not act reasonably in refusing to adjourn the review in order to give the Applicant further time to have a new sponsorship and nomination application considered by the Department. The reasons why the Tribunal did not act reasonably are, he submitted:
a)Between April 2000 and April 2003 Jamuna Sweets & pastry was an approved business sponsor which had nominated the applicant. In June 2001 a delegate of the Minister refused to grant the Applicant a visa for failure too comply substantially with condition 8101, a decision affirmed by the Tribunal in February 2003. However, in August 2003 orders were made by consent setting aside the Tribunal’s decision. A subsequent Tribunal decision in January 2005 found that the Applicant had substantially complied with condition 8101. By that time, however, the business sponsorship approval for Jamuna Sweets & Pastry had expired. The earlier errors of the Department and the Tribunal, in affirming the delegate’s decision, had deprived the Applicant of the opportunity of obtaining a substantive visa. This, he submitted, is a factor in support of the Tribunal giving the Applicant further time to obtain a new business sponsor and nominator.
b)It took the Department about three months to process the business sponsorship application by Ganesha Sweets and Pastries Pty Ltd. It took the Department two months too process (and approve) the application lodged by Jamuna Sweets and Pastry in February 2000. It took the Department three months to process (and refuse) the application lodged by Jamuna Sweets and Pastry in April 2005. Therefore, Mr Zipser submitted, it was unreasonable for the Tribunal not to adjourn the review for the relatively short period of three months.
The Tribunal’s power to adjourn the review from time to time is a discretionary power and the Tribunal must act reasonably in exercising its discretion. The power to adjourn in s.363(1)(b) incorporates the rules of procedural fairness.
The Applicant’s second ground concerns a claim that the Tribunal failed to have regard to relevant considerations in making a decision as to whether or not it would allow him further time. Mr Zipser submitted that, before making its finding that it had given the Applicant a reasonable opportunity to have a new sponsorship and nomination application considered by the Department, the Tribunal should have considered or taken into account the matters referred to in paragraph 36 above.
If the Tribunal did not consider these matters or take them into account, Mr Zipser submitted that it is open to the Court to conclude that the Tribunal failed to have regard to relevant considerations, giving rise to jurisdictional error.
First Respondent’s submissions
Ms Wong, who appeared for the First Respondent, submitted that:
a)The Applicant had ample opportunity to arrange for an approved business sponsor.
b)The Migration Review Tribunal did not fall into jurisdictional error
Ms Wong submitted that the decisions in Bhardwaj and SZFML should be distinguished on their facts, as there is a significant difference between the circumstances of those two cases and the matter before the court.
The decision in Bhardwaj related to a fundamental entitlement to have a hearing before the Tribunal. In the case before the Court, a hearing was held. There was no question that the Applicant would receive a hearing – he had one.
The Tribunal had a discretion to decide when to determine the review. The question to be asked is whether or not the discretion was properly exercised. The Court should ask whether the decision by the Tribunal was so unreasonable that no Tribunal acting reasonably could have made it.
In this case, over a year and a half elapsed between 6th August 2005, when the Applicant was informed that his visa was refused, and the date of the Tribunal decision on 2nd February 2007. Ms Wong pointed out that the Applicant had made three attempts to obtain sponsorship and Tribunal gave him a year before it even held a hearing.
As to the claim that s.363 incorporates procedural fairness, Ms Wong submitted that it is not apparent on a reading of s.357A that this is the case. The Tribunal was not required to hold a hearing on whether the power in s.363 should be exercised.
Conclusions
The Applicant was informed on 6th August 2005 that his application for a visa had been refused. The Tribunal handed down its decision to affirm the delegate’s decision to refuse the visa on 2nd February 2007, nearly eighteen months later.
During that eighteen month period the Applicant had made three attempts to obtain a business sponsor with the following companies:
i)Jamuna Sweets and Pastry;
ii)Jaipur Sweets; and
iii)Hukum Indian Restaurant
None of these attempts proved successful.
The Applicant attended the Tribunal hearing on 6th June 2006. By that time, the Applicant’s employment with Jaipur Sweets (his second attempt at sponsorship) had come to an end. The Applicant’s third proposed sponsor, Hukum Indian Restaurant, had not then lodged its application.
Hukum Indian Restaurant lodged its application for sponsorship and nomination on 10th July 2006, slightly more than a month after the hearing. Hukum Indian Restaurant withdrew its application on 10th November 2006.
The Applicant advised the Tribunal on 27th December 2006 that his fourth sponsor, Ganesha Sweets and Pastries Pty Ltd, had lodged sponsorship and nomination applications on 19th December 2006.
The Tribunal decided not to wait until the application by Ganesha Sweets and Pastries had been finalised. The Tribunal signed the decision on 12th January 2007 and handed that decision down on 2nd February 2007.
The Tribunal stated that it considered that it had given the Applicant “a reasonable opportunity to have a new sponsorship and nomination application considered by the Department”.[11] It decided not to wait until the application by Ganesha Sweets and Pastries had been finalised.
[11] Court Book 149
It is clear from the decision that the Tribunal took into account the Applicant’s evidence at the hearing that he was making a third attempt at sponsorship through Hukum Indian Restaurant and decided to wait until that application had been resolved. Once it became clear that Hukum Indian Restaurant had withdrawn its nomination in November, the Tribunal was not prepared to wait while the Applicant made yet another attempt at sponsorship, his fourth. The sponsorship and nomination application by Ganesha had not even been contemplated at the Tribunal hearing in June.
I am not satisfied that the Tribunal’s decision was unreasonable in the circumstances.
I am not satisfied that the Tribunal fell into jurisdictional error in deciding not to delay its decision whilst the applicant pursued his attempts to find another sponsor.
Whilst the Applicant relies on the decision in Minister for Immigration and Multicultural Affairs v Bhardwaj, the circumstances in which the High Court found that the Tribunal in that case had denied the Applicant a reasonable opportunity to appear are very different from the case under review. The Tribunal in Bhardwaj had gone ahead with a hearing in the absence of the Applicant and failed to have regard to a communication advising that he was unable to attend.
In this case, the Tribunal held a hearing at which the Applicant attended. The question of sponsorship by Hukum Indian Restaurant was discussed and the Tribunal delayed making its decision until the question of Hukum’s sponsorship had been resolved. The further application by Ganesha had not even been discussed at the hearing. In my view, the facts of the case before me are so different from those in Bhardwaj that it should be distinguished.
In any event, Ms Wong has brought to my attention the fact that Bhardwaj was decided before s.357A came into operation on 4th July 2002. Section 357A is an exhaustive statement of the requirements of the natural justice hearing rule and the common law natural justice hearing rule is excluded (see Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat[12]).
[12] [2006] FCAFC 61
Again, the fact situation in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML was significantly different from that which applies in the present case. In SZFML (which coincidentally I decided at first instance[13]), the Full Court of the Federal Court was required to consider whether the applicant had consented to the review being determined without a hearing taking place. The applicant’s agent had informed the Refugee Review Tribunal that she did not wish to attend but did so without the applicant’s consent. The Court held that an effective consent or the non-attendance by the applicant at a scheduled hearing are alternative necessary conditions of the Tribunal’s power to determine an application without a hearing. Absent an effective consent, the condition under which the Tribunal may treat the applicant as disentitled from a hearing is not satisfied.[14]
[13] SZFML v Minister for Immigration & Anor [2005] FMCA 1947
[14] [2006] FCAFC 152 at [74]
I consider that I should distinguish the decision in SZFML on the facts.
In this case, there was a hearing which the Applicant attended. Both before and after the hearing the Tribunal wrote to the Applicant under the provisions of s.359A of the Migration Act, inviting him to comment on information. The Applicant replied and provided comments. It was only after that time that the Tribunal exercised its discretion to conclude the review.
The Migration Review did not fall into error in the way in which it exercised its discretion to conclude the review. I am not satisfied that the decision of the Tribunal was so unreasonable that no Tribunal acting reasonably would have made such a decision.
Neither ground of review has been made out. There is no jurisdictional error and the Tribunal decision is a privative clause decision.
The application will be dismissed with costs.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 9 October 2007
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