Kang v Minister for Immigration - [2007] FMCA 1373

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KANG & ORS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1373

MIGRATION – Review of Migration Review Tribunal decision – refusal of an education visa – interlocutory dismissal of show cause application – no arguable case.

Migration Act 1958 (Cth), ss.359, 359A, 362B
Federal Magistrates Court Rules 2001 (Cth)

Kim v The Minister for Immigration [2007] FCA 138
Tvarkovski v The Minister for Immigration [2001] FCA 375

First Applicant:

HYE JONG KANG

Second Applicant:

MUN KYOUNG JANG

Third Applicant:

JUN YOUNG JANG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1815 of 2007

Judgment of:

Driver FM

Hearing date:

13 August 2007

Delivered at:

Sydney

Delivered on:

13 August 2007

REPRESENTATION

The first Applicant appeared in person

Solicitors for the Respondents:

Ms S Kantaria
Clayton Utz

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $2,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1815 of 2007

HYE JONG KANG

First Applicant

MUN KYOUNG JANG

Second Applicant

JUN YOUNG JANG

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 signed on 18 April 2007 and it was handed down on 2 May 2007. The Tribunal affirmed a decision of a delegate of the Minister that the principal applicant was not entitled to an Educational (Temporary) (Class TH) visa. There are three applicants, and it appears that the second and third applicants are children of the first applicant.
The first applicant was the review applicant before the Tribunal.

A critical issue in the review before the Tribunal was the rejection by the Minister's department of a nomination of the principal applicant.

A necessary criterion for the class of visa sought by the first applicant was that at the time of decision, except in the case of an application made in relation to occupational training to be provided by the Commonwealth, a nomination in respect of the occupational training has been lodged and has been approved by the Minister.
Because of the rejection by the Minister's department of the nomination in the case of the visa applicant she was sent a letter pursuant to s.359A of the Migration Act 1958 (Cth) (“the Migration Act”) on 22 December 2006. That letter invited comment on what appeared to be the determinative issue, namely the rejection of the nomination. The Tribunal also sought additional information pursuant to s.359(2) of the Migration Act relevant to the training proposed.
The first applicant responded to the latter request. On 5 February 2007 the first applicant was invited to a hearing before the Tribunal on 12 April 2007. It appears that she did not respond. The Tribunal elected to proceed to make a decision without taking any further action pursuant to s.362B of the Migration Act. The Tribunal found on the basis of the decision of the Federal Court in Kim v The Minister for Immigration [2007] FCA 138 that it could not review the nomination decision.
As a precaution the Tribunal went on to consider the issue of nomination in the terms set out in para.21 of the Tribunal decision[1] which I incorporate in this judgment.
However, if the Tribunal is wrong on that, it has turned its mind to the nomination assessment as part of its review of the visa decision. The visa applicant has asserted that there is sufficient experience and a training record for the company and there is no doubt the training is workplace based and will enhance her skills that she will be able to utilise in her future career after leaving Australia. Despite these assertions, no details of training have been provided in the visa application or nomination. The Tribunal is not satisfied as to how the nominator would provide the training or whether occupational training would enhance the visa applicant’s skills in her occupation. The Tribunal is therefore not satisfied that the nomination should be approved. The Tribunal therefore refuses the nomination. The Tribunal therefore finds that subclause 442.222(1) is not satisfied. The Tribunal accordingly finds the visa applicant does not meet clause 442.222.
[1] court book page 68
Essentially the Tribunal found that it had insufficient information to make a favourable decision on the issue of the nomination should it have had the power to do so.
These proceedings began with a show cause application filed on 8 June 2007. The first applicant asserts actual notification of the Tribunal decision on 28 May 2007. On that basis I find that the application was filed within time. The application contains three grounds of review. The first asserts jurisdictional error in that the Tribunal failed to make further enquiries of the nominator in relation to nomination issues. The second asserts an inability by the applicant to respond to the s.359A invitation. The third ground appears to suggest that the applicant was in some way inhibited from responding by being subject to an obligation of confidence.
The application is supported by an affidavit which repeats the first two grounds of review. I received that as a submission. I received as evidence the court book filed on 19 July 2007 and the affidavit of Miriam Mafessanti filed on 26 July 2007.
At the commencement of today's hearing the first applicant requested an adjournment. She told me that she was being assisted by someone associated with the nominator who had unexpectedly left Australia for about one month. She told me that she was, in effect, unable to make any submissions in support of her application in the absence of that person. The Minister opposed any adjournment. I refused the adjournment request because no person essential to today's hearing had previously been disclosed by the applicant, and no request for an adjournment had been made prior to today's hearing. The applicant confirmed from the bar table that the person assisting her is not a legal practitioner. Accordingly, that person would have no right to be heard. No one was identified as a witness for the applicant. In the result the applicant made no oral submissions.
It is clear from the Tribunal's decision that the outcome of the review before the Tribunal was dependent on the issue of the nomination. The Tribunal had properly raised that issue in its letter sent pursuant to s.359A of the Migration Act. The applicant's response failed to address that issue, although it did address a request for further information pursuant to s.359(2). The Tribunal noted inconsistent decisions of the Federal Court on the issue of whether the Tribunal could deal with the issue of the nomination. In 2001 in Tvarkovski v The Minister for Immigration [2001] FCA 375 the Federal Court had held that the nomination decision was reviewable by the Tribunal. The decision in Tvarkovski was considered by Goldberg J in Kim at [30].
His Honour found that the Tribunal in the case before him had no jurisdiction to review the nomination decision. The decision in Kim appears to be indistinguishable from this case. Neither the Minister's solicitor nor I am aware of any appeal against the decision in Kim. Judicial comity would require me to follow it. The Tribunal was entitled and probably obliged to find on the basis of the decision in Kim in this matter that it could not review the nomination. However as a precaution the Tribunal turned its mind to the nomination assessment. The Tribunal found that it had insufficient information to be satisfied that it should vary the nomination decision.
That outcome might hypothetically have been different if the applicant had responded to the s.359A letter and if she had attended the Tribunal hearing. She did neither. I accept on the basis of the material in the court book and the affidavit of Miriam Mafessanti that the Tribunal discharged its obligations to invite the applicant to a hearing. I also accept that the Tribunal was entitled to exercise its discretion against the applicant and to proceed in her absence when she failed to appear for the hearing.
The application fails to disclose any arguable case of jurisdictional error. Neither is any arguable case apparent to me from my own reading of the material. I therefore order that the application is dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,250. Scale costs would be $2,500. The first applicant expressed a wish to negotiate on costs. That is a matter that can be taken up with the Minister's department after the case. I will order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $2,250.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate:

Date: 17 August 2007