Jang v Minister for Immigration
[2007] FMCA 869
•29 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JANG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 869 |
| MIGRATION – MRT decision – refusal of business (long stay) subclass 457 visas – Tribunal correctly found no jurisdiction where no sponsor approved and no appeal by sponsor – application dismissed at show-cause hearing. |
| Migration Act 1958 (Cth), ss.338(2)(b), 476, 477 Migration Regulations 1994 (Cth), Sch 2 Item 457.223(4) Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) |
Kim & Ors v Minister for Immigration [2007] FMCA 166
| First Applicant: | HAE KWAN JANG |
| Second Applicant: | ME YAE PARK |
| Third Applicant: | YAE LEE JANG |
| Fourth Applicant: | GY WOON JANG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 845 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 29 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2007 |
REPRESENTATION
| Counsel for the Applicants: | First Applicant In Person |
| Counsel for the First Respondent: | Ms N Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The first, second and third applicants must pay the first respondent’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 845 of 2007
| HAE KWAN JANG |
First Applicant
| ME YAE PARK |
Second Applicant
| YAE LEE PARK |
Third Applicant
| GY WOON PARK |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 13 March 2007, in which the applicants seek an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), in respect of a decision of the Migration Review Tribunal (“the Tribunal”) made on 18 September 2006 and posted to the applicants on 26 September 2006. The applicants are a Korean father, who I shall refer to as “the applicant”, and his dependents.
The Tribunal decided that it did not have jurisdiction to entertain an application for review lodged by the applicants on 29 November 2005. In effect, the substantive relief sought in the present case is mandamus to compel the Tribunal to exercise jurisdiction.
On the first Court date before me on 3 April 2007, the applicant attended in person and was assisted by a Korean interpreter. I gave directions setting the matter down for a show cause hearing today, and allowing the applicants time to take further advice and to file an amended application. I warned the applicant that I would be considering whether he had raised an arguable case for the relief claimed. I also warned him that I would be considering whether the application was incompetent under s.477 of the Migration Act
In relation to competency, the applicant's application to the Court states that notification of the decision was received by the applicant on 15 October 2006, and his affidavit appears to admit that the application was lodged “outside the time limit”. However, there is no other evidence clearly establishing the date of actual notification, and I prefer to address the application on its merits rather than its competence.
The decision which the applicant sought to have reviewed by the Tribunal was a decision of a delegate made on 28 October 2005, which refused to grant a class UC (subclass 457) business (long stay) visa to the applicant as principal visa applicant and to his family members as secondary applicants.
The applicant had sought his visa on the basis of sponsorship by an approved employer under item 457.223(4) of Sch.2 to the Migration Regulations 1994 (Cth). This required a separate process of approval of that sponsor under the regulations, and for that purpose the proposed employer, Asia Pacific Space Centre Pty Ltd (“the company”), had lodged an application for approval.
The present delegate made a decision on the same day that he refused the visa application, refusing the sponsorship application. He did so on the basis that the company appeared not to be trading. He then refused the applicant’s application on the ground that he did not have an approved sponsor. The sponsor did not appeal to the Tribunal from the decision refusing approval, but the applicant attempted to appeal the decision refusing the visa.
In these circumstances, the Tribunal's jurisdiction turned upon the operation of s.338(2)(b) of the Migration Act, which defines a MRT reviewable decision in the following terms:
s.338 Decisions reviewable by Migration Review Tribunal
(2)A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is an MRT‑reviewable decision if:
…
(d)where it is a criterion for the grant of the visa that the non‑citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non‑citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
In Kim & Ors v Minister for Immigration [2007] FMCA 166, I have recently considered the effect of that provision and its related regulations in situation case which is relevantly indistinguishable from the present. I shall not repeat my analysis and opinions explained in that case, and adopt them in the present case.
In my opinion, for the reasons explained in Kim, the present Tribunal correctly found that, in the absence of an approval of the sponsor or of a pending appeal by the sponsor at the time of the application for review, the application to the Tribunal by the present applicants was not within the jurisdiction of the Tribunal. I can see no arguable basis, consistent with the legislation as I have interpreted it in Kim, on which the Tribunal could be found to have had jurisdiction.
The applicants have not presented any argument seeking to establish jurisdiction in the Tribunal. Rather, the absence of jurisdiction appears to have been admitted to the Tribunal by the applicant's agent in a letter which the Tribunal recites in his decision. It appears from the letter that they had lodged their appeal to the Tribunal for the purpose of seeking further time to pursue alternative visa avenues on behalf of the second applicant, the primary applicant's wife. Statements in the application to this Court indicate the same motive for commencing this proceeding. However, neither the Tribunal nor this Court are obliged to entertain applications brought without jurisdiction or merit, so as to provide time for applicants to pursue a collateral applications for visas. Indeed, such applications might appear to be an abuse of process.
In my opinion, the Tribunal correctly decided that it did not have jurisdiction, and the applicants have presented no argument to suggest otherwise.
I am not satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under rule 44.12 (1) (a).
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date:
1
3