Jin v Minister for Immigration and Citizenship
[2009] FMCA 540
•10 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JIN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 540 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a business visa – applicant not having an approved sponsor at the time of decision – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.359A, 359AA, 360 Migration Regulations 1994 (Cth) |
| SZBEL v Minister for Immigration (2006) 228 CLR 152 |
| First Applicant: | HAE SOOK JIN |
| Second Applicant: | MOON SOO CHUN |
| Third Applicant: | HYO JUNG CHUN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 139 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 10 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 10 June 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Mr G W H Seo Garry Seo & Associates |
| Solicitors for the Respondents: | Ms E Baggett DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 139 of 2009
| HAE SOOK JIN |
First Applicant
MOON SOO CHUN
Second Applicant
HYO JUNG CHUN
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was made on 30 December 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants temporary business entry (class UC) visas. These are a subclass 457 business (long stay) visas. Background facts are conveniently summarised in the Minister's submissions filed on 2 June 2009. I adopt as background, with minor amendments, paragraphs 2 through to 23 of those written submissions:
The applicant is a female citizen of Korea born on 8 February 1965.[1]
[1] court book (“CB”) 3
The applicant applied for a Subclass 457 Business (Long Stay) visa on 16 February 2006.[2] The application was refused on 28 June 2007.[3]
[2] CB 31-109
[3] CB 117-123
The applicant applied to the Tribunal for review of the original decision on 26 July 2007.[4]
[4] CB 124-131
The applicant gave oral evidence before the Tribunal on 27 August 2007. The Tribunal handed down its decision on 30 December 2008.
The applicant's claims
The primary applicant applied for a Subclass 457 (Business (Long Stay)) visa on the basis that she satisfies the requirements of subclause 457.223(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).[5] The legislation requires that the applicant specify an employer who they propose to work for, and that employer must be approved. The applicant nominated Lim's Charcoal BBQ.
[5] CB 31-109
The primary applicant has applied for and held business visas in Australia in the past. Her last application before the present application was refused because she had not complied with the conditions of her prior substantive visa[6].
[6] See CB1-28
In the decision of a delegate of the Department of Immigration and Citizenship (DIAC)[7] it was noted that on 3 June 2005 the Department approved Lim's Charcoal BBQ as a standard business sponsor and, on 6 September 2006, DIAC approved the company's application for an approved business nomination. The nominated activity was 'cook' and the applicant was the nominee.[8] At the time of the decision both the approved sponsorship and the approved nomination had expired.
[7] CB117-123
[8] CB119.5
The delegate refused the application because it found that the documents provided by the applicant in support of her application were counterfeit.[9] DIAC wrote to the applicant inviting her to comment on this information and warning that if she did not respond they would proceed to reject the application.[10] It received no response to correspondence and so found that there was no evidence to prove that the applicant had the skills of her nominated activity and breached clause 457.223(4)(e).[11]
[9] CB120.5
[10] CB112-113
[11] CB120
The applicant sought review of the decision in the Tribunal.[12]
[12] CB124-137
The decision of the Tribunal
The Tribunal wrote to the applicant on 18 April 2008 inviting her to comment or respondent to information in writing pursuant to s.359A[13]. The Tribunal indicated that it had received information that there was no record of the applicant's cook license at Kooru-gu Ward Office and the Boochun Cooking School was not established when the applicant claimed to have attended there.
[13] CB139-140
By fax dated 27 May 2008, the applicant conceded that her licence and graduation certificate were false and submitted a statement of her own and from her son and her daughter.[14]
[14] CB141-143
On 20 August 2008 the new agent of the applicant, Mr Seo, wrote to the Tribunal requesting an extension of time, as he had only just taken over the matter and the applicant's previous migration agent had fabricated documents, which needed to be investigated[15].
[15] CB148-149
By letter dated 21 August 2008, the Tribunal indicated that it would not grant an extension of time.[16]
The applicant sent a letter requesting additional time after the hearing and submitted a statutory declaration in support of the application.[17]
The Tribunal received a letter from the applicant's agent advising that Lim's Charcoal BBQ had 'pulled out'.[18] At the Tribunal hearing, the applicant confirmed that Lim's Charcoal BBQ was no longer an approved sponsor.[19]
The Tribunal advised the applicant at the hearing that this meant that the she no longer met the requirements of clause 457.223(4)(b), which was a necessary requirement. The Tribunal gave the applicant an extension of time to provide evidence that the sponsor had applied for another approved sponsorship.[20]
The Tribunal indicated that if the applicant did not provide evidence that she had a sponsor the Tribunal would have to affirm the decision without making an assessment on her skills and whether she met clause 457.223(4)(e).[21]
The Tribunal received evidence that an application had been made by Lim's Charcoal BBQ[22] however the Tribunal gained access to DIAC records shortly after that showed that application had been refused. The Tribunal wrote to the applicant on 26 November 2008 advising her of this information and inviting her to comment on the information. [23]
On 22 and 24 December 2008 the new agent of the applicant, Mr Park, wrote to the Tribunal requesting an extension of time, as the new agent had only just taken over the matter.[24]
The Tribunal was not willing to grant this extension given the amount of time that had passed since the application was made and the amount of time that the applicant had been without a sponsor.[25]
The Tribunal found that because the applicant did not nominate an approved sponsor she did not meet clause 457.223(4)(b) and therefore affirmed the decision.[26]
As the primary applicant did not meet the requirements for a Subclass 457 visa, the secondary applicants did not meet clause 457.321 of the Regulations.[27]
[16] CB152-153
[17] CB156-158
[18] CB162-163
[19] CB194 at [18]
[20] CB194 at [18]
[21] CB194 at [19]
[22] CB169
[23] CB177-178
[24] CB179, CB183-184
[25] CB195 at [24]
[26] CB195 at [25]
[27] CB195 at [26]
These proceedings began with a show cause application filed on 21 January 2009. The applicant continues to rely on that application, the grounds of which I incorporate in this judgment:
1. The delegate of the Minister for Immigration and Citizenship (DIAC) refused visa application as first named applicant did not satisfy cl.457.223(4)(e) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant has the skills necessary to perform the nominated activity of cook (ASCO code 4513-11).
2. The Member of Migration Review Tribunal (MRT) during the hearing held on the 27th August 2008, requested information pertaining to determining whether she has the relevant skills as a COOK but did not make a finding as to whether applicant satisf[ied] the cl.457.223(4)(e).
3. The Member of MRT by the letter dated 26th Nov 2008 invited applicant to make a comment on adverse information the MRT is going to rely on but the adverse information given by the MRT was information in relation to cl.457.223(a)&(b) not cl.457.223(4)(e).
4. The MRT Member’s failure to review the applicant’s eligibility under s.457.223(4)(e) amounts to denial of Natural Justice and Procedural Fairness to the applicant.
A short affidavit which accompanied that application was not read. I have before me as evidence the court book filed on 25 February 2009 and the supplementary court book filed on 17 March 2009.
The applicant contends that the Tribunal fell into jurisdictional error by failing to make a decision on whether the applicant met the visa criterion in clause 457.223(4)(e) of Schedule 2 to the Regulations. That was the criterion that the delegate decided the applicant failed to meet. It was the criterion in relation to which the Tribunal sought comments in the first of two letters written pursuant to s.359A of the Migration Act 1958 (Cth) (“the Migration Act”). It was also a criterion that was addressed at the hearing conducted by the Tribunal on 27 August 2008. There was, however, no obligation on the Tribunal to decide the case on the same basis as that dealt with by the delegate. Where, however, the Tribunal elects to determine a review application on a different basis to that dealt with by the delegate, the obligation on the Tribunal to provide a fair hearing pursuant to s.360 of the Migration Act requires that the Tribunal ensure that the applicant understands the essential and significant issue or issues upon which the review will turn[28].
[28] SZBEL v Minister for Immigration (2006) 228 CLR 152
In the present case the applicant had conceded that documents provided in support of her visa application which bore on the question of her compliance with clause 457.223(4)(e) had been fabricated. The assertion appears to have been made that the fault lay not with the applicant but with her then migration agent. The Tribunal conducted further inquiries and the applicant had the opportunity to persuade the Tribunal that she met that criterion notwithstanding the actions of her former migration agent. However, in the interim the applicant's sponsor had “pulled out”, which the applicant freely conceded. There was therefore a new issue before the Tribunal of whether the applicant met the criteria in clause 457.223(4)(a) and (b). If the Tribunal was to determine the review on that issue, it needed to be squarely raised at the hearing. It was at [18] and [19] of the Tribunal's reasons[29]:
At the hearing, the applicant confirmed that the sponsor (Lim’s Charcoal BBQ) specified by the applicant in her visa application was no longer an approved sponsor. The Tribunal advised that the withdrawal of the specified sponsor meant that the applicant did not meet cl.457.223(4)(b), a necessary condition of sl.457.223(4) of Schedule 2 to the Regulations. The applicant’s representative indicated that Lim’s Charcoal BBQ may be willing to again sponsor the applicant. The Tribunal agreed to provide a limited time for the applicant to obtain the agreement of her sponsor to apply for another approved sponsorship to enable her to be employed as a cook.
The Tribunal also took evidence from the applicant and her representative at the hearing regarding the applicant’s skills, experience and personal attributes in relation to her claims to meet the requirements of the nominated activity of cook. The Tribunal sought additional evidence in support of her claims to meet cl.457.223(4)(e) of the Regulations. The Tribunal also advised that if the applicant was unable to obtain the requisite approved sponsor, the Tribunal would proceed to affirm the decision under review on that basis, without proceeding to make a finding on cl.457.223(4)(e).
[29] CB 194
The Tribunal also wrote to the applicant after the hearing by letter dated 26 November 2008 to invite comment on the issue that the applicant may fail to meet the criteria in clause 457.223(4)(a) and (b) because a fresh sponsorship application by the visa applicant's sponsor had been rejected by the Minister's Department. The applicant contends that the Tribunal also needed to confirm the Tribunal's intention not to deal with the criterion in clause 457.223(4)(e) in the event that the Tribunal was not satisfied that the applicant met the criteria in either 457.223(4)(a) or (b). I reject that contention because that was part of the Tribunal's reasoning process. In any event that reasoning process had been disclosed at the Tribunal hearing, which may have met any requirement of disclosure orally pursuant to s.359AA of the Migration Act.
Even if the Tribunal had fallen into error in regard to any obligation to consider the criterion in clause 457.223(4)(e) or to disclose an intention not to determine the case on the basis of that criterion, I would be inclined to refuse relief on the basis that the applicant conceded before me today (through her solicitor) that she could not meet a new necessary criterion for the class of visa sought in relation to English language ability. A further review by the Tribunal would in the circumstances be futile.
In other respects I agree with and adopt for the purposes of this judgment, with minor amendments, paragraphs 26 to 28 of the Minister's written submissions:
The first respondent submits that the Tribunal was not required to consider subclause 457.223(4)(e) as it had already found that the applicant did not meet one of the key criteria, namely subclause 457.223(4)(b). There is no denial of natural justice or procedural fairness in the Tribunal not proceeding to consider a superfluous issue.
Further, the applicant was put on notice at the hearing that if she did not meet subclause 457.223(4)(a) and (b) by being able to obtain the requisite approved sponsor, then the Tribunal would proceed to affirm the decision under review without considering subclause 457.223(4)(e).
In relation to the assertion that the Tribunal failed to invite the applicant to comment under s.359A of the Migration Act, the first respondent submits that the Tribunal does not have any obligation to invite an applicant to comment pursuant to s.359A on the fact that it was not going to consider subclause 457.223(4)(e) as this is a thought processes or subjective appraisal of the evidence and not "information".
I reject the grounds in the show cause application. I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
The application having been dismissed, costs should follow the event. The Minister seeks a costs order fixed in the sum of $4,000. The first applicant does not dispute those costs. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 June 2009
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