Jenlam Pty Ltd v Minister for Immigration
[2006] FMCA 608
•18 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JENLAM PTY LTD & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 608 |
| MIGRATION – Review of Migration Review Tribunal decisions – refusal of business sponsor and business visa decisions – three applications heard concurrently – applications all directed at the sponsorship decision – asserted misunderstanding of financial information and a failure to make enquiries – no reviewable error found – applications dismissed. |
| Migration Act 1958 (Cth), ss.345A, 349, 359, 359A, 424A, 478, 479, 486C Migration Regulations 1994 (Cth) |
| A v Minister for Immigration (2002) FCAFC 238 Lace Holdings Pty Limited v Minister for Immigration [2002] FCA 254 Lachmi v Minister for Immigration [2002] FMCA 19 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 Re Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405 SAAP v Minister for Immigration [2005] HCA 24 Tide Sequences Industries Pty Limited and Mengquin Chu v Minister for Immigration [2005] FCA 751 VEAL of 2002 v Minister for Immigration [2005] HCA 72 Yan v Minister for Immigration [2001] FCA 819 Zhou v Minister for Immigration [2000] FCA 1523 Zhou v Minister for Immigration [2000] FCA 1883 |
Applicant: Applicant: Applicant: | JENLAM PTY LTD GURGIT SINGH BANWAT BALWANT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Numbers: | SYG1508 of 2005 SYG1911 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 26 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2006 |
REPRESENTATION
| Mr S Salindera appeared with leave on behalf of Jenlam Pty Ltd |
| Mr G Banwat appeared in person |
| No appearance by or on behalf of Mr B Singh |
| Counsel for the Respondents: | Mr R Bromwich |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Migration Review Tribunal be joined as the second respondent to each application.
The Court notes the undertaking by Mr Salindera to pay the setting down fee of $691 in matter SYG1508 of 2005 no later than 28 April 2006.
The application by Jenlam Pty Ltd is dismissed.
The application by Gurjit Singh Banwat is dismissed.
The application by Balwant Singh is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1508 of 2005, SYG1881 of 2005, SYG1911 of 2005
| JENLAM PTY LTD, GURJIT SINGH BANWAT, BALWANT SINGH |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
These proceedings concern applications to review three decisions of the Migration Review Tribunal (“the MRT”). The first decision was made and handed down on 18 February 2005, affirming a decision of a delegate of the first respondent made on 24 February 2004, refusing Jenlam Pty Ltd (“Jenlam”) approval as a standard business sponsor.
The second application is an application to review a decision of the MRT made and handed down on 22 June 2005 affirming a decision of a delegate of the Minister made on 27 February 2004 refusing Gurjit Singh Banwat a temporary business entry visa.
The third application seeks review of a decision of the MRT made and handed down on 24 June 2005 affirming a decision of a delegate of the Minister made on 27 February 2004 refusing Balwant Singh a temporary business entry visa.
A separate application was filed by each applicant. At an interlocutory stage in the proceedings directions were made in each matter by a registrar resulting in the applications being heard before me today at the same time. The applications are related inasmuch as the individual applicants were refused visas because they did not have an approved business sponsor. They are aggrieved essentially because of the refusal of the application for sponsorship approval made by Jenlam.
I will deal first with the judicial review application by Jenlam.
The Jenlam application
I adopt with necessary amendments paragraphs 2 to 12 of the Minister’s written submissions filed on 10 April 2006 in relation to the Jenlam application:
On 20 June 2003 the applicant applied for sponsorship as an Australian business.[1] In support of that application numerous documents were annexed.
[1] court book, pages 1-9
Legislation
Regulation 1.20D(1) of the Migration Regulations 1994 (“the Regulations") relevantly provides that the Minister must approve an application for approval as a standard business sponsor if the Minister is satisfied that the applicant meets the criteria set out at Regulation 1.20D(2) of the Regulations.
Relevantly, regulation 1.20D(2) provides that the Minister must approve an application for approval as a pre-qualified or standard business sponsor made in accordance with regulation 1.20C if:
(f)the Minister is satisfied that while there is in effect a Subclass 457 visa granted on the basis that:
i)the applicant for approval is the employer referred to in subclause 457.223(4) of Schedule 2 in relation to a visa application; and
ii)the visa holder satisfies the requirements of that subclause;
the applicant for approval is able, in relation to each visa holder, to comply with the undertakings given by the applicant in accordance with form 1067, 1196 or 1196 (internet).
Subclause 457.223(4) of Schedule 2 of the Regulations provides that the Applicant meets the requirements of the subclause if, relevantly, the Minister is satisfied that:
a)the visa applicant will be paid at the level specified in the nomination; and
b)that level will be at least a minimum salary level that applied at the time the nomination was made.
Relevantly, the undertakings as set out in Form 1067 are to comply with Australian Industrial Relations Laws, Australian levels of remuneration and conditions of employment. Alternatively, the Applicant may comply with Form 1196 which relevantly provides an undertaking to "ensure that, if there is a consented minimum salary in force in relation to the nominated position occupied by the sponsored person, the person will be paid at least that salary".
The MRT’s decision
By letter dated 22 September 2004 the MRT invited Jenlam to provide additional information in relation to the application namely, the documents and statements requested on the checklist enclosed with that letter.[2]
[2] court book, pages 114‑117.
On 13 November 2004 the MRT received additional documentation from Jenlam including its income tax return, statement of financial position and profit and loss statement for the year ended 30 June 2003.[3]
[3] court book, pages 123‑134.
By letter dated 12 December 2004 the MRT invited Jenlam to attend a hearing before it scheduled at 9.00 am on 21 January 2005. At the request of Jenlam, the hearing was rescheduled to 1.30 pm on 20 January 2005.[4]
[4] court book, pages 135‑141.
Jenlam’s representative attended the hearing before the MRT scheduled on 20 January 2005 at 1.30 pm and at that hearing provided the MRT with further documents.[5]
[5] court book, pages 171‑172, [13] and [15].
At paragraphs 8 -11 and 13 and 15 of its reasons for decision, the MRT outlined the documentary evidence provided by Jenlam and the oral evidence given by its representative.[6]
[6] court book, pages 171‑172.
The MRT made the following findings and comments:
a)to be approved as a business sponsor, the applicant must meet the criteria set out in Regulation 1.20D, including paragraph 1.20D(2)(f); [7]
b)at the hearing Jenlam’s representative confirmed that it planned to pay a proposed employee (and visa applicant) a salary of $36,000. Jenlam’s representative also confirmed that the financial information provided to the MRT was the most recent information on the financial position of the company and that the company currently employed four people;[8]
c)the most recent profit and loss statement for Jenlam is for the financial year ended 30 June 2003. The profit and loss statement indicated Jenlam made a net pre‑tax loss of $45,881.86 in 2002/03 and paid no income tax for that year, made a significant pre‑tax loss and had a net liability position in the previous financial year (2001/02) and that Jenlam’s total expenditure on wages in 2002/03 and 2001/02 were respectively $22,050 and $17,050;[9]
d)Jenlam's representative made reference to the company's property assets in Australia which he claimed to be valued at several million dollars. The MRT attached no weight to the documents provided to it regarding the property assets of Jenlam and noted that there is no indication of property assets valued at several million dollars in the balance sheets or accompanying notes provided by Jenlam to the MRT;[10]
e)the MRT was not satisfied that Jenlam was able to comply with its sponsorship undertakings. The financial statements for 2002/03 and 2001/02 indicate that Jenlam incurred significant net operating losses and maintained a significant net liability position. The profit and loss statements also indicate that Jenlam's aggregate expenditure on wages for its employees in each financial year was substantially less than the nominated salary of Jenlam. The MRT found that Jenlam did not meet paragraph 1.20D(2)(f) of the Regulations.[11]
[7] court book, page 172, [12].
[8] court book, page 171[13].
[9] court book, page 171, [14].
[10] court book, page 172[15] and [16].
[11] court book, page 173[17].
The application for judicial review
On 9 June 2005 Jenlam filed an application for judicial review in this Court. Jenlam subsequently served on the first respondent an amended application dated 28 October 2005. Those grounds of review are as follows:
1.At paragraph 15 of the decision (at CB172) the Tribunal stated "The review Applicant passed to the Tribunal the following documents" and proceeds to list and describe the documents that was handed up. The Tribunal proceeds to make decision on the documents without allowing the Applicant opportunity to further substantiate these documents. The Tribunal states at paragraph 16 of the decision (at CB172) that "The Tribunal has attached no weight to the document ... because it is unable to determine its legal status, given that it is an uncertified photocopy of the handwritten, undated lease agreement. The Tribunal has also attached no weight to the other documents referred to above ....
Particulars/Comments
The Applicant submits that the Tribunal denied the applicant procedural fairness and/or or natural justice in not allowing the applicant opportunity to further substantiate and explain these documents. The applicant submits that the Tribunal ought to have allowed it opportunity to further substantiate the applicant's interest/claim as per the document submitted if the Tribunal was not willing to accept the documents as submitted.
This is in breach of 345A and the High Court's decision in SAAP v Minister for Immigration [2005] HCA 24 where the High Court considered a similar provision pursuant to 424A of the Migration Act.
2.In the alternative, the applicant says that the Tribunal breached the rules of natural justice in connection with the making of the decision. The Tribunal states at CB172, paragraph 16:
The Tribunal is unable to determine its legal status ... the Tribunal also notes that there is no indication of property assets valued at several million dollars in the Balance Sheet .....
Particulars/Comments
(a) The applicants were not given opportunity to comment on the financial information forming the basis of the Tribunal's decision;
(b)Failed to provide the applicant opportunity to clarify or provide further information and were not given proper opportunity to present their case;
(c)The Tribunal failed to properly consider the material provided.
3.The Tribunal's decision involved jurisdictional error affecting the decision which is subject to this application in that:
(a)it asked itself the wrong question and applied the wrong test.
Particulars/comments
The Tribunal misinformed itself of the particular circumstances of the applicant and incorrectly proceeded to assess the financial circumstances of the applicant.
4.The Tribunal failed to take into account relevant considerations and/or misconstrued the evidence.
Particulars
(a)The Tribunal misconstrued the evidence as to the extension plans and failed to consider the additional income to be generated from the expansion of the operation;
(b)The Tribunal failed to correctly identify the income constituent from the activities of the restaurant from the other activities;
(c)The availability of the training courses in the area;
(d)The Tribunal misunderstood and misconstrued the evidence as to why the applicant was in need of additional employ;
(e)Erroneously only considered the current income.
5.Erred in law in arriving at a decision to affirm the Respondents to refuse the Applicant's approval as a business sponsor.
Particulars/comments
(a)The Migration Tribunal did not comply with the Migration Act 1958, namely sections 349, 359 and 359A in that it looked at the decision without engaging in its own factual finding;
(b)The Tribunal acted in the excess of its jurisdiction pursuant to section 349 of the Act.
Jenlam was represented by Dr Jyoti Bharati until 6 April 2006 when he filed a notice of ceasing to act in accordance with this Court’s rules. Dr Bharati filed an affidavit with his notice of ceasing to act explaining that he had lost contact with the applicants and attaching letters sent to the three applicants. At the trial of this matter on 26 April 2006 Mr Salinder S Salindera, who described himself as the sole director of Jenlam, sought an adjournment on behalf of Jenlam to obtain alternative legal representation, or alternatively sought leave to appear on behalf of the company. I refused the adjournment but granted the leave.
Mr Salindera made oral submissions in support of the application by Jenlam. He submits that the MRT proceeding was unfair for a number of reasons. He submits that he was led to believe that the MRT had received all documents from the Minister’s Department’s file but that it appears to him that in fact not all documents were before the MRT. In particular, he submits that documents proving asset ownership by Jenlam were not before the MRT, although they had been put before the delegate. I accepted as an exhibit[12] correspondence from Coffs Harbour City Council to a company called GHD Pty Ltd, the first pages of which appear on pages 55 and 56 of the court book. The remaining pages of that correspondence have not been reproduced but it does not follow that they did not appear on the Department’s file or that they were not before the MRT. That correspondence does not on its face point to asset ownership by Jenlam.
[12] exhibit A1
Secondly, Mr Salindera submits that, at the end of the hearing conducted by the MRT, the presiding member assured him that he would be contacted if there were any matters of doubt which the MRT needed to clarify. He says that there was no further approach from the MRT and that there should have been prior to the MRT making its decision because of apparent misunderstandings held by the presiding member about Jenlam’s financial position. I reject that submission on the basis that it is not apparent from the MRT decision that the presiding member entertained any doubts about the factual matters leading to his decision. If an undertaking to seek clarification about doubtful matters had been made (about which there is no evidence) I do not accept that the circumstances arose enlivening such an undertaking.
Mr Salindera asserted from the bar table that other documents had been put before the Minister’s Department which are not reproduced in the court book but there is no evidence to support that assertion.
Mr Salindera further asserts that the presiding member did not understand the material submitted to the MRT by Jenlam and that he should have made further enquiries so that he could have understood them. Mr Salindera submits that it should have been apparent from the documentation submitted that Jenlam owned substantial assets because of the rates and land tax it was paying. He further submits that the presiding member misunderstood the financial position of Jenlam because he placed undue emphasis on the depreciation claimed by Jenlam for taxation purposes. He submits that this misunderstanding would have been overcome if the MRT had made further enquiries, for example, by doing title searches.
There are a number of answers to these submissions. First, there is no general duty on the MRT to make its own enquiries. Secondly, the MRT did in fact make enquiries of Jenlam[13]. Jenlam sought and was granted additional time to provide the further information sought and did provide it[14]. That financial information provided by Jenlam painted anything but a rosy financial picture of the company. Mr Salindera submits that the MRT needed to look beyond the mere figures but he cannot escape the fact that that was the information provided to the MRT. Jenlam could have provided different or additional information had it so wished. The financial circumstances of Jenlam, based upon the material provided by it, were at best mysterious. At worst, the company appeared to be insolvent.
[13] court book, pages 114 to 117
[14] court book, pages 123 to 134
In my view, the findings and conclusions reached by the MRT were open to it on the material before it. I see no jurisdictional error in the decision of the MRT and no error based on procedural unfairness in the proceeding before the MRT. I otherwise agree with and adopt the Minister’s submissions in relation to this application, as follows.
Ground 1
The First Respondent submits that there is no merit to this ground of review. The Tribunal is not required to seek further comment from an applicant in relation to documents provided by an applicant to the Tribunal. The onus is on an applicant to establish its case.[15]
[15] See Tide Sequences Industries Pty Limited and Mengquin Chu v Minister for Immigration [2005] FCA 751 per Conti J at [40].
The Applicant was invited by letter dated 22 September 2004 from the Tribunal to provide additional information in support of his application and on 20 January 2005 was invited to and did attend a hearing before the Tribunal. In the circumstances, the Tribunal complied with the requirements of the Migration Act 1958 (the "Act") and accorded the Applicant procedural fairness in accordance with the Act.
The Applicant asserts, also under ground 1, that there was a breach of section 345A of the Act and refers to the decision in SAAP. The First Respondent assumes that it is the Applicant's intention to refer to section 359A of the Act.
There was no requirement for the Tribunal to provide the Applicant with particulars of the documents handed up to the Tribunal at the hearing by the Applicant as:
a)the Tribunal attached no weight to any of those documents such that they did not form the reason, or a part of the reason, for affirming the decision under review. Accordingly, section 359A of the Act was not engaged;[16]
[16] See VEAL of 2002 v Minister for Immigration [2005] HCA 72.
b)the documents were provided by the Applicant to the Tribunal and accordingly fall within the exception provided by section 359A(4)(b) of the Act.
Ground 2
Except for subparagraph 16(a), the Respondent refers to and repeats paragraphs 13 to 16 above.
Ground 3
In applying Regulation 1.20D(2)(f), the Tribunal is required to determine whether the applicant for approval is able, in relation to each visa holder, to comply with the undertakings given and consider the evidence before it which points to the competency of an applicant to comply. The satisfaction of the Tribunal as to an applicant's ability to comply with the relevant undertaking is a finding of fact and degree for the Tribunal based on the circumstances of the case.[17]
[17] See Lace Holdings Pty Limited v Minister for Immigration [2002] FCA 254 per R D Nicholson at [27] and [34].
The Tribunal relied on the balance sheet and profit and loss statement of the Applicant for the period ending June 2003 in determining that it was not satisfied that the Applicant was able to comply with its sponsorship undertakings. In assessing that information, the Tribunal noted:
a)the balance sheet indicated that at ending June 2003 the Applicant had net liabilities of $199,308.70 reflecting total assets of $313,391.65 and total liabilities of $510,430.35;
b)the Applicant made a net pre‑tax loss of $45,888.86 in 2002/03 and paid no income tax for that year;
c)the Applicant made a significant pre‑tax loss and had a net liability position in the previous financial year;
d)the Applicant's total expenditures on wages in 2002/03 and 2001/02 was respectively $22,050 and $17,050.
The Tribunal's reasons for decision disclose that it:
a)correctly assessed the most recent financial statements of the Applicant. This evidence was relevant to the Tribunal's consideration of the Applicant's ability to comply with the undertakings given;
b)correctly applied the law to the facts as found by the Tribunal.
Ground 4
The Tribunal refused the Applicant's application for review on the basis that it found that the Applicant did not meet the requirements of paragraph 1.20D(2)(f) of the Regulations. The matters the Applicant asserts that the Tribunal was required to consider are not relevant to consideration of the requirements of paragraph 1.20D(2)(f) of the Regulations.
Further, the weight to be attached to evidence is a matter for the Tribunal and it is not required to make an express finding on each and every piece of evidence provided by the Applicant.[18]
On its face, the Tribunal's decision addressed the critical aspects of the Applicant's evidence and there is no suggestion that it failed to understand the facts and circumstances of the matters before it. In essence, the Applicant appears to be seeking, by this ground of review, a review of the merits and the Court cannot undertake such a review.[19]
Ground 5
The First Respondent refers to and repeats paragraphs 13 to 17 above and otherwise submits that, in the absence of particulars, the Applicant's assertion that the Tribunal acted in excess of its jurisdiction pursuant to section 349 of the Act is without merit and meaningless.
No reviewable error
The Tribunal's decision does not otherwise disclose any reviewable error.
The conclusions reached by the Tribunal were open to it on the material before it. It was clearly open to the Tribunal to find that the Applicant did not satisfy the criteria for approval as a business sponsor.
The Applicant has not demonstrated any error that would lead to the conclusion that the Tribunal failed to exercise or exceeded its jurisdiction, or that it breached any of the Hickman provisos.[20] The Applicant has not therefore demonstrated any entitlement to relief.
[18] See Re Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405 at [65] and Lace Holdings Pty Limited.
[19] See A v Minister for Immigration (2002) FCAFC 238.
[20] See R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.
The application by Gurjit Singh Banwat
Although Mr Banwat’s application is related to that of Jenlam, the outcome of his application does not depend upon the outcome of the application by Jenlam. He was also represented by Dr Bharati until 6 April 2006 but represented himself at the trial of the matter on 26 April 2006. He conceded in his oral submissions that he had no complaint about the MRT decision concerning his visa application. His real complaint is with the decision of the MRT on the sponsorship application by Jenlam. I agree with and adopt the Minister’s written submissions relating to this application, with minor amendments.
On 10 June 2003, Mr Banwat applied for a temporary business entry (class UC) visa.[21] His nominated business sponsor was Jenlam.
[21] court book, pages 1 - 9
Legislation
At the time Mr Banwat’s application was lodged, class UC contained subclasses 456 ((business) (short-stay) visa) and subclass 457 ((business) (long-stay) visa). Subclass 456 is not relevant as the applicant sought a visa for longer than three months.[22]
[22] court book, page 4
Subclass 457 visas can be obtained on a number of grounds. Mr Banwat made his application on the basis of sponsorship by a business operating in Australia and no claims were made in respect of any other grounds.[23]
[23] court book, page 5
The criteria for subclass 457 visas are set out in Schedule 2 of the Regulations.
Clause 457.223(1) of the Regulations provides that, at the time of decision, the applicant must meet the requirements of subclause (2), (3), (4), (5), (7A), (8), (9) or (10).
Relevantly, clause 457.223(4) provides that the applicant meets the requirements of this subclause if 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 the employer is either a pre-qualified business sponsor or a standard business sponsor approved under Regulation 1.20D of the Regulations.
Clause 457.111(1) of the Regulations provides that an approved business nomination means a nomination approved under Regulation 1.20H of the Regulations.
The MRT’s decision
By facsimile dated 28 February 2005 the MRT invited Mr Banwat to comment on information that it considered would be the reason or a part of the reason for affirming the decision under review, namely that information on the Departmental file indicated that a decision was made to reject the application made by Jenlam for approval as a business sponsor and that the MRT had affirmed the delegate's decision.[24]
[24] court book, pages 37 - 38. A request for an extension of time had been sought by the applicant but refused by the MRT. See court book, pages 39 - 40.
By letter dated 26 April 2005 the MRT invited Mr Banwat to attend a hearing scheduled 25 May 2005 at 3pm. By response to hearing invitation signed 23 May 2005 he indicated:
a)that he did not wish to appear before the MRT; and
b)requested the MRT to hold the conference by phone because he was unable to attend personally and to allow Mr Salindera to appear as a witness.[25]
[25] court book, pages 47 - 49.
Mr Banwat attended the hearing by telephone on 25 May 2005 with Mr Salindera.[26]
[26] court book, page 55.
The MRT noted that:
a)the principal of Jenlam had informed the MRT that it intended to lodge an appeal in the Federal Court of the MRT’s decision to affirm the Department's decision refusing Jenlam's application for business sponsorship approval;
b)Mr Banwat and Jenlam's representative asked it to defer its decision in the present case until the outcome of the Federal Court appeal was determined.[27]
[27] court book, page 55 [4].
The MRT considered that request but determined to proceed with its decision having regard to:
a)the statutory obligation of the MRT to conduct a mechanism that is fair, just, economical, informal and quick;
b)the absence of any expressed statutory obligation on the MRT to grant adjournments for the purpose of obtaining business sponsorship approval;
c)its view that in the present case Mr Banwat had had ample opportunity to arrange the necessary Regulation 1.20D approval.[28]
[28] court book, page 56[8].
The MRT made the following findings and comments:
a)the ground on which the visa application was made was sponsorship by a business operating in Australia and no claims were made in respect of the other grounds. The material before the MRT did not suggest that Mr Banwat met any of the other grounds;[29]
b)a necessary criterion for a subclass 457 visa on the basis of a sponsorship by a business operating in Australia is that the proposed employer is approved as a pre-qualified business sponsor or as a standard business sponsor. The application for approval of the business sponsor, Jenlam, was refused by a delegate of the Minister and that decision was subject to a separate review by the MRT at which the MRT affirmed the delegate's decision;[30]
c)Mr Banwat's proposed employer had not been approved as a business sponsor as required by clause 457.223 and the MRT found that Mr Banwat did not meet essential criteria for a subclass 457 visa.[31]
[29] court book, page 55[6].
[30] court book, pages 55-56[7].
[31] Court book, page 56[9].
The application for judicial review
On 18 July 2005 Mr Banwat filed an application for judicial review in this Court seeking review of the MRT’s decision. He filed an amended application on 4 November 2005.
The grounds of review raised by Mr Banwat in his amended application are as follows:
1.At paragraph 9 of the Decision, the Tribunal stated in "the Tribunal finds that the visa Applicant's proposed employer has not been approved as a business sponsor as required by the relevant subclauses of clause 457.223. The Tribunal therefore finds that the visa Applicant does not meet essential criteria for subclass 457 visa. It follows that the Tribunal must affirm the decision under review.
Particulars
a)The Applicant submits that the Tribunal ought to have found that there was failure to take into account documents as enumerated in the Amended Application of the applicant's sponsor.
b)Erred in law in not applying the provisions of law as enumerated in the Amended Application of the Applicant's sponsor, namely sections 349, 359 and 359A.
2.The applicant was thus denied procedural fairness and natural justice.
Particulars
a)The applicant submits that the Tribunal ought to have found that there was failure to take into account documents as enumerated in the Amended Application of the Applicant's sponsor.
b)The sponsor was not provided opportunity to explain the documents.
By his amended application Mr Banwat appears to be seeking a review of the decision of the MRT relating to the MRT’s review of the delegate's decision refusing Jenlam’s application for approval as a business sponsor. Mr Banwat has no standing to make such an application for review[32] and the grounds of review raised by the amended application do not otherwise apply to the decision the subject of this application for review.
[32] see ss.478, 479 and 486C of the Migration Act and Regulation 4.02(5)(a) of the Migration Regulations
The first respondent submits that Mr Banwat's amended application for review is meaningless and without merit. I agree.
No reviewable eror
The MRT’s decision does not otherwise disclose any reviewable error.
It is apparent on the face of the MRT’s decision that it had regard to all of the evidence before it and determined that it could not grant the business visa as Mr Banwat did not have an approved business sponsor and could not satisfy any of the other clauses of subclause 457.223 of the Regulations. Once a business sponsor is not approved by the Minister and that decision affirmed by the MRT then an applicant is never in a position to satisfy the requirements for the grant of a subclass 457 visa. [33]
[33] In the those circumstances the applicant is unable to satisfy the relevant visa criterion for the grant of a Sub-class 457 visa (see visa criterion 457.223(4) of schedule 2 of the Migration Regulations.). See: Lachmi v Minister for Immigration [2002] FMCA 19 at paragraph 19 in which Federal Magistrate Driver said "… It is apparent from recent decisions of the Federal Court: Zhou v Minister for Immigration [2000] FCA 1523, Zhou v Minister for Immigration [2000] FCA 1833 and Yan v Minister for Immigration [2001] FCA 819, that the failure of a business sponsor to obtain approval of business sponsorship and approval of a nominated business activity is fatal to a sub‑class 457 visa application based upon that sponsorship …".
The conclusion reached by the MRT on the facts was open to it on the material before it. It was clearly open to the MRT to find that Mr Banwat failed to satisfy the criteria for a subclass 456 visa or the criteria for a subclass 457 visa.
Mr Banwat has not demonstrated any error that would lead to the conclusion that the MRT failed to exercise or exceeded its jurisdiction, or that it breached any of the Hickman provisos.[34] Mr Banwat has not therefore demonstrated any entitlement to relief.
[34] See R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
The application by Balwant Singh
Mr Singh was also represented by Dr Bharati. In his case, Dr Bharati filed a notice of ceasing to act on 31 March 2006. Mr Singh failed to appear at the trial of the matter on 26 April 2006. I accepted a submission from Mr Salindera that I refrain from dismissing the application on account of Mr Singh’s non appearance and I deal with it in conjunction with the other two applications.
Mr Singh is in the same position as Mr Banwat. I agree with and adopt with minor amendments the Minister’s written submissions in relation to his application.
On 11 June 2003, Mr Singh applied for a temporary business entry (class UC) visa.[35] His nominated business sponsor was Jenlam.
[35]court book, pages 1-10
Legislation
At the time Mr Singh’s application was lodged, class UC contained subclasses 456 ((business) (short-stay) visa) and subclass 457 ((business) (long-stay) visa). Subclass 456 is not relevant as the applicant sought a visa for longer than three months.[36]
[36] court book, page 5
Subclass 457 visas can be obtained on a number of grounds. Mr Singh made his application on the basis of sponsorship by a business operating in Australia and no claims were made in respect of any other grounds.[37]
[37] court book, page 6
The criteria for subclass 457 visas are set out in Schedule 2 of the Regulations.
Clause 457.223(1) of the Regulations provides that, at the time of decision, the applicant must meet the requirements of subclause (2), (3), (4), (5), (7A), (8), (9) or (10).
Relevantly, clause 457.223(4) provides that the applicant meets the requirements of this subclause if 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 the employer is either a pre-qualified business sponsor or a standard business sponsor approved under Regulation 1.20D of the Regulations.
Clause 457.111(1) of the Regulations provides that an approved business nomination means a nomination approved under Regulation 1.20H of the Regulations.
The MRT’s decision
By facsimile dated 28 February 2005 the MRT invited Mr Singh to comment on information that it considered would be the reason or a part of the reason for affirming the decision under review, namely that information on the Departmental file indicated that a decision was made to reject the application made by Jenlam for approval as a business sponsor and that the MRT had affirmed the delegate's decision.[38]
[38] court book, pages 36 - 37. A request for an extension of time had been sought by the applicant but refused by the MRT. See court book, pages 38 - 39.
By letter dated 26 April 2005 the MRT invited Mr Singh to attend a hearing scheduled 31 May 2005 at 3pm. By response to hearing invitation signed 23 May 2005 Mr Singh indicated:
a)that he did not wish to appear before the MRT; and
b)requested the MRT to hold the conference by telephone because he was unable to attend personally and to allow Mr Salindera to appear as a witness.[39]
[39] court book, pages 42-43.
Mr Singh attended the hearing by telephone on 31 May 2005 with Mr Salindera.[40]
[40] court book, page 44.
The MRT noted that:
a)the principal of Jenlam had informed the MRT that it intended to lodge an appeal in the Federal Court of the MRT’s decision to affirm the delegate's decision refusing Jenlam's application for business sponsorship approval;
b)Mr Singh and Jenlam's representative asked it to defer its decision in the present case until the outcome of the Federal Court appeal decision was determined[41].
[41] court book, page 50,[4].
The MRT considered that request but determined to proceed with its decision having regard to:
a)the statutory obligation of the MRT to conduct a mechanism that is fair, just, economical, informal and quick;
b)the absence of any expressed statutory obligation on the MRT to grant adjournments for the purpose of obtaining business sponsorship approval;
c)its view that in the present case Mr Singh had ample opportunity to arrange the necessary Regulation 1.20D approval.[42]
[42] court book, page 51[8].
The MRT made the following findings and comments:
a)the ground on which the visa application was made was sponsorship by a business operating in Australia and no claims were made in respect of the other grounds. The material before the MRT did not suggest that Mr Singh met any of the other grounds;[43]
b)a necessary criterion for a subclass 457 visa on the basis of sponsorship by a business operating in Australia is that the proposed employer is approved as a pre-qualified business sponsor or as a standard business sponsor. The application for approval of the business sponsor, Jenlam, was refused by a delegate of the Minister and that decision was subject to a separate review by the MRT at which the MRT affirmed the delegate's decision;[44]
c)Mr Singh’s proposed employer had not been approved as a business sponsor as required by clause 457.223 and the MRT found that Mr Singh did not meet essential criteria for a subclass 457 visa.[45]
[43] court book, page 50[6].
[44] court book, pages 50-51[7].
[45] court book, page 51[9].
The application for judicial review
On 20 July 2005 Mr Singh filed an application for judicial review in this Court seeking review of the MRT’s decision raising the following grounds of review:
1.[The MRT] (e)rred in law in arriving at the decision to affirm the Respondents to refuse to the Applicant as a business sponsor.
Particulars
a)The Tribunal incorrectly applied the Act and the Regulations;
b)The Migration Tribunals did not comply with the Migration Act 1958, namely sections 349, 359 and 359A;
c)The Tribunal acted in the excess of its jurisdiction pursuant to section 349 of the Act.
2.The Tribunal's decision involved jurisdictional error affecting the decision which is subject to this application in that:
(a)it asked itself wrong question and applied the wrong test.
Particulars
The Tribunal misinformed itself of the particular circumstances of the Applicant and incorrectly proceeded to assess the financial circumstances of the Applicant;
3. The Applicant was not accorded procedural fairness.
Particulars
(a)The Tribunal failed to give the Applicant the proper opportunity to present any further relevant financial information;
(b)The Tribunal raised a new issue at the hearing, namely issues relating to financial information that was not an issue at the DIMIA review stage.
(c)The Tribunal failed to inspect my DIMIA file and make proper follow up concerning the properties owned by the Applicant or allayed organisation.
4.The Tribunal breached the rules of natural justice in connection with the making of the decision.
Particulars
(a)The Applicants were not given an opportunity to comment on the financial information forming the basis of the Tribunal's decision.
(b)Failed to provide the Applicant an opportunity to clarify or provide further information and were not given proper opportunities to present their case;
(c)The Tribunal failed to properly consider material provided.
5.The Tribunal misconstrued the evidence of the business sponsor.
Particulars
(a)The Tribunal misunderstood and misconstrued the evidence as to why the Applicant was in need of an additional employee;
(b) erroneously only considered the current income;
(c) misconstrued the evidence as to the extension plans.
6.The Tribunal failed to take into account relevant consideration.
Particulars
(a)The Tribunal failed to consider the additional income to be generated from the expansion of the operation;
(b)On 31 May 2005 the [sponsor] principal in the visa applicant's sponsoring company, (Jenlam Pty Limited), informed the Tribunal that the Company intended shortly to lodge an appeal in the Federal Magistrate Court of the Tribunal's decision to affirm the Department decision to refuse the company's business sponsorship application. The company lodged an appeal in the Federal Magistrate Court on 9 June 2005.
(c)The visa applicant asked the Tribunal to defer its decision in the present case until the outcome of the Federal Magistrate Court appeal is determined.
(d)The Tribunal did not take it as a relevant consideration.
(e)The Applicant claimed that he was denied procedural fairness.
7.The Tribunal acted inflexibly in applying Procedures Advice Manual PAM-3.
Particulars
(a)The Tribunal failed to consider the impact of regulations 1.20A to 1.20D in its application for procedures advice manual PAM-3 thus failing to apply the law."
Subject to ground 6, by his application Mr Singh appears to be seeking review of the decision of the MRT relating to the MRT’s review of the delegate's decision refusing Jenlam’s application for approval as a business sponsor. Mr Singh has no standing to make such an application for review and the grounds of review raised by the application do not otherwise apply to the decision the subject of this application for review.
Ground 6
There is no requirement under the Migration Act 1958 (Cth) ("the Migration Act") by which the MRT must, or must consider whether to, grant adjournments for the purpose of enabling an applicant to obtain an approved business sponsor.
Further, it is apparent from the MRT’s reasons for decision that the MRT considered Mr Singh’s request to defer the determination of his review of the delegate's decision. However, having regard to the MRT’s statutory obligation to conduct a mechanism that is fair, just, economical, informal and quick and the absence of any express statutory obligation on the MRT to grant adjournments, the MRT decided not to defer its decision. In proceeding in this manner it is apparent that the MRT had regard to Mr Singh's request, considered that request but decided, as it was entitled to do, not to defer its decision in his case. There is no error disclosed in the decision and procedure adopted by the MRT.
No reviewable error
The MRT’s decision does not otherwise disclose any reviewable error.
It is apparent on the face of the delegate's decision that it had regard to all of the evidence before it and determined that it could not grant the business visa as Mr Singh did not have an approved business sponsor and could not satisfy any of the other clauses of subclause 457.223 of the Regulations. Once a business sponsor is not approved by the Minister and that decision affirmed by the MRT then an applicant is never in a position to satisfy the requirements for the grant of a subclass 457 visa.[46]
[46] In the those circumstances the applicant is unable to satisfy the relevant visa criterion for the grant of a Sub-class 457 visa (see visa criterion 457.223(4) of schedule 2 of the Migration Regulations.). See: Lachmi v Minister for Immigration [2002] FMCA 19 at paragraph 19 in which Federal Magistrate Driver said "… It is apparent from recent decisions of the Federal Court: Zhou v Minister for Immigration [2000] FCA 1523, Zhou v Minister for Immigration [2000] FCA 1833 and Yan v Minister for Immigration [2001] FCA 819, that the failure of a business sponsor to obtain approval of business sponsorship and approval of a nominated business activity is fatal to a sub-class 457 visa application based upon that sponsorship …".
The conclusion reached by the MRT on the facts was open to it on the material before it. It was clearly open to the MRT to find that Mr Singh failed to satisfy the criteria for a subclass 456 visa or the criteria for a subclass 457 visa.
Mr Singh has not demonstrated any error that would lead to the conclusion that the MRT failed to exercise or exceeded its jurisdiction, or that it breached any of the Hickman provisos.[47] He has not therefore demonstrated any entitlement to relief.
[47] See R v Hickman, Ex parte Fox and Clinton (1945) 70 CLR 598
Conclusion
There is no reviewable error in any of the three MRT decisions. Each application should therefore be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 18 May 2006
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