Khan v Minister for Immigration
[2006] FMCA 843
•31 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 843 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal for a Cultural/Social (Temporary) (Class TE) Subclass 421 (Sport) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.359, 359A, 483A Migration Regulations 1994 (Cth), Schedule 2 reg.421.222, Schedule 8 condition 8101 |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Korovata v Minister for Immigration [2001] FCA 1446 SAAP v Minister for Immigration [2005] HCA 24 Susaki v Minister for Immigration [1999] FCA 196 |
| Applicant: | MOHAMMED JAMAL KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG2344 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 12 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person. |
| Advocate for the Respondents: | Ms D Watson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Migration Review Tribunal is joined as the second respondent.
The name of the first respondent is amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 25 August 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2344 of 2005
| MOHAMMED JAMAL KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 24 August 2005 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal decision was made on 20 July 2005, affirming a decision of the delegate of the first respondent made on 13 April 2004, refusing to grant the applicant a Cultural/Social (Temporary) (Class TE) Subclass 421 (Sport) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Bettina O’Neill, reference N04/02769 contains the following background information. Mr Mohammed Jamal Khan (“the applicant”), a national of Fiji, applied for a Cultural/Social (Temporary) (Class TE) Subclass 421 (Sport) visa on 29 January 2004. On 13 April 2004, a delegate of the Minister refused to grant the visa. On 11 May 2004, the applicant filed an application with the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 93)
The applicant had previously travelled to Australia on a number of occasions on different visas:
a)Subclass 456 (Business Short Stay) visa in November 1999;
b)Subclass 421 (Sport) visa in February 2003, May 2003, June 2003 and August 2003.
The applicant entered Australia again on a Subclass 421 (Sport) visa on 12 November 2003. He was granted a Subclass 686 (Tourist (Long Stay)) visa on 27 November 2003. He was the holder of that visa on the date he lodged an application for a further Subclass 421 (Sport) visa, the refusal of which is the subject of Tribunal review. The applicant’s Subclass 686 visa expired on 18 February 2004 and he has held bridging visas since then. He travelled outside Australia on a number of occasions on a Subclass 020 (Bridging B) visa.(CB 94)
As I have already indicated, the applicant applied for a Cultural/Social (Temporary) (Class TE) Subclass 421 (Sport) visa on 29 January 2004. The applicant advised the Department that the reason he was applying for that visa was to participate in a boxing competition on 14 February 2004 in Tasmania.(CB 12) At the same time his nominated sponsors were Ash and Maali Holdings Pty Ltd (trading as Mortgage Bazaar), who submitted an application for approval as sponsor for a temporary resident in Australia.(CB 13) The sponsorship form to the Department indicated that the applicant’s salary would not be paid by the sponsor, but would be paid by a boxing promoter.(CB 13) The type of employment offered was described as “boxing” with a proposed period of employment of 12 months. It was also indicated that the applicant’s salary package would include accommodation, boxing equipment and living expenses. The details of the sponsorship arrangement were detailed in a letter attached to the application form.(CB 21) A letter was also submitted by Billy Hussein of Liverpool Pro Gym.(CB 23) The letter stated that the applicant had been training at the gym for a couple of months and had contributed “time experience and talent” to other members of the gym and assisted in liaising with visiting boxers from Fiji. Mr Hussein hoped that the applicant could stay with the gym for 12 months.
The applicant’s sponsor’s application for approval was refused on
13 April 2004.(CB 24) In the decision record, the delegate stated that the relevant part of the Migration Regulations 1994 (Cth) (“the Regulations”) required a sponsor to “fully support their nominee”.(CB 26-28) It was noted that no provision had been made for payment of a salary but that boxing promoters would be responsible for this. It was also noted the sponsor had failed to provide financial records to demonstrate its capacity to honour the sponsorship undertaking and, as a mortgage company, it had no connection with sport. A decision was made at the same time to refuse the applicant’s visa application.(CB 29) The application was essentially refused on the basis that the applicant did not have an approved sponsor.(CB 31-33) The respondents concede that this decision is an error and that there is no requirement in the relevant regulations for the sponsor to be approved by the Minister.(Korovata v Minister for Immigration [2001] FCA 1446, written submissions of Ms Watson at [8]-[9])
The Tribunal’s Findings and Reasons
A convenient summary of the Tribunal’s ‘Findings and Reasons’ was contained in the respondents’ written submissions prepared by Ms Watson and I adopt paragraphs 11-21 of those submissions:
11.A submission was lodged on the applicant’s behalf to the MRT. It is noted that in that submission, the applicant’s agent states that the “sponsorship agreement required the applicant on a part time (honorary) basis to provide coaching, training and instruction to members of the gym and the sponsor’s quid pro quo was that he should carry (wear) their logo and generally promote their name in his aforesaid activities and in the boxing ring when boxing professionally”. It is also noted that the agent stated that the applicant “has earned some $15,000 this way (being paid prize money for fights) over recent months” (RD p. 36).
12.A notice under s. 359(2) was sent to the applicant, inviting him to provide information detailing the recent financial dealings and financial status of his proposed sponsor and details of the proposed salary or remuneration to be paid either by the sponsor or any other party during his proposed stay in Australia (RD p. 51. After some extensions were granted to provide the information, a letter was received by the MRT on 15 November 2004 enclosing various documents (RD p. 57-62)
13.The applicant attended a hearing which occurred on 7 February 2005. Following the hearing, the MRT wrote to the applicant, pursuant to s. 359(2) requesting that further information be provided concerning the financial position of his proposed sponsor, information establishing a strong connection between the proposed sponsor and boxing and documentation establishing the applicant’s reputation as a boxer (RD p. 69).
14.The MRT also issued a notice under s. 359A to the applicant (RD p. 71-2). The MRT raised an issue with the applicant that he had given evidence at the hearing that he had been assisting with training boxers at the Liverpool gym and that he was paid out of pocket expenses by boxing promoters and that he was training boxers at the present time. The applicant’s attention was drawn to the condition attached to his visa which prohibited him from working and also to item 421.228, a criterion for the grant of the visa sought by the applicant, that the applicant has complied substantially with the conditions applied to the last of any substantive visa held and any subsequent bridging visa. The applicant was advised “If the Tribunal finds that you have been working since the grant of your current Bridging B visa, it may also find that you have not complied substantially with the condition that applies to your current bridging visa and as such you may fail to meet criterion 421.228 which is an essential criteria for the grant of a Subclass 421 Sport visa.
15.Information was received by the MRT on 21 April 2005 (RD p. 77-87). No specific response was received to the issues raised in the notice issued under s. 359A, although it is noted that one of the documents provided to the MRT on 21 April 2005 was a statutory declaration by a relative of the applicant to the effect that he was wholly dependent upon him.
16.On 20 July 2005, the MRT handed down a decision affirming the decision under review. The MRT found that the applicant did not satisfy item 421.222(4)(a) and item 421.222(4)(c)(ii) of Schedule 2 to the Migration Regulations.
17. …
18.The MRT found on the basis of the financial material provided that it was not satisfied that the sponsor had the financial capacity to meet their sponsorship obligations (RD p. 102). In this regard, the MRT considered the policy guidelines on this issue. It noted that there was no material provided to indicate what the sponsor’s financial position was beyond 20 August 2004 and that the last financial statement indicated a balance of just over $50,000.00. This is a finding of fact which was open to the MRT.
19.The MRT was also not satisfied that the sponsor had a good professional status in relation to the sport of boxing. Having found that it was not satisfied about the sponsor’s financial status, it was not necessary for the MRT to consider its professional status as the two elements are independent and both are required to be satisfied.
20.Furthermore, the MRT made an independent finding that the applicant had breached a condition of the bridging visa he was holding. It based this finding on the applicant’s evidence that he was training boxers and had received some remuneration for this activity from boxing promoters. While, it noted other evidence provided to the contrary, the MRT was entitled to prefer the evidence of the applicant. It is noted that this evidence formed the basis of matters put to the applicant in the notice issued pursuant to s. 359A. The finding that the applicant had worked in breach of a condition of his bridging visa was a finding open to the MRT on the evidence.
21.Finally, the MRT found that the applicant had failed to satisfy item 421.222(4)(a). In this regard it is noted that the applicant does not claim to either be a player, coach or instructor in relation to an Australian team or organisation with which he has entered into an arrangement, nor does he claim that he was participating in a training program. Rather the applicant claimed that he wanted to fight in boxing tournaments, specifically identifying a tournament in February 2004. No further information regarding boxing events was provided (see para 33 of MRT decision). Therefore, putting aside any other issues which the applicant has with the MRT decision, the applicant simply does not satisfy this criterion.
Application for Review of the Tribunal’s Decision
On 24 August 2005, the applicant filed an application for review under s.39B of the Judiciary Act. The application was accompanied by an affidavit affirmed by the applicant on 23 August 2005 (“the applicant’s affidavit”). The applicant’s affidavit contains a recital of the circumstances surrounding the Tribunal’s decision and lists two grounds:
(a)I do not believe that Regulation 422.21(4)b) requires the sponsor to have a strong connection to the sport of the person being sponsored and that both DIMIA and the MRT applied a wrong interpretation to this regulation.
(b)I deny that I have not breached condition 8101 and there is no evidence that I have. (copied without alteration or correction)
I believe the wording of the second ground is a grammatical mistake by the applicant and does not express his intention. This can be corrected by the removing the words “I deny that”, or alternatively, removing the word “not”. I will read the ground in this form as I believe that is the applicant’s intention.
Reasons
The applicant is a self-represented litigant who appeared before me at first directions on 27 September 2005. On that date orders were made requiring the applicant to file an amended application and any supporting affidavit material, and the matter was adjourned to further directions on 16 February 2006. On 16 February 2006 there was no appearance by the applicant, nor an explanation provided to the Court or to the respondents’ solicitors. It was noted on that occasion that none of the orders made on 27 September 2005 had been complied with and the matter was dismissed for non-appearance of the applicant. On 22 February 2006, the applicant filed an application seeking to have those orders set aside and that matter was heard on 6 April 2006. On that date the matter was adjourned for a final hearing on 12 May 2006 and the orders of 16 February 2006 were vacated. The applicant was instructed to file written submissions 14 days prior to the hearing.
The original application filed on 24 August 2005 contains no grounds of judicial review. However although the applicant’s affidavit does not contain formal grounds, it does raise certain issues concerning the Tribunal decision. The first respondent addressed these issues in written submissions and the Court has treated that material as grounds of review, although they are not formally identified as such. The applicant’s affidavit contains the following statements:
1.I am the applicant in the proceedings.
2.I am a professional boxer from the Fiji Islands and have visited Australia many times to participate in boxing matches.
3.Late in 2003 my boxing promoter advised that he had organised a number of boxing matches and he invited me to participate.
4.On 29 January 2004 I applied to the Department of Immigration and Indigenous Affairs for a temporary visa to enable me to participate in referred boxing matches.
5.In preparing my application I refereed to immigration officiaSl who informed me that I should complete and submit a Form 147 and Sponsorship Form 55 with appropriate fee.
6.I read the instructions contained in both forms and I read the notes in regard to sponsorship which were brief: and gave no suggestion of the requited level of detail and I provide an invitation letter and sponsorship undertaking with my application form.
7.My applicant was refused by DIMIA and according to the decision record this was because “the department has made the final decision to refuse the application for sponsorship for temporary residence” and “as the applicant is no longer sponsored by an approved organisation the visa applicant failed to meet regulation 421.222.”
8.I am and have been in constant touch with the sponsor who was advised by DIMIA at the time that he did not meet sponsorship obligations because he had no properly evidenced his ability to meet financial requirements but he was given no opportunity to show that he was capable of doing so despite that he had the necessary financial capacity.
9.Another reason for refusal was that policy requires the sponsor to have a strong connection to (in my case) the sport of boxing and I submit that policy is not law and the actual law makes no such connection. Specifically the pertinent regulation states:
422.21(4) An applicant meets the requirements of this subclause if:
(a) The applicant seeks to enter Australia under an arrangement with an organisation in Australia to:
(i) Be a player, coach or instructor in relation to an Australian team or organisation; or
(ii) Participate in a training program; and
(b) the applicant is sponsored by an Australian citizen, an Australian permanent resident, an eligible New Zealand citizen or an organisation in Australia; and…
Notably, if it were the intention for the sponsor referred in clause (b) to be the organisation in clause (a) or that it be involved in the particular sport of the applicant, it would say so. Additionally there is no indication on the sponsorship form that this association should exist.
10.The matter was referred to the Migration Review Tribunal on 11 May 2004 and the DIMIA decision was upheld because:
a) It agreed that the connection between the sponsor and my sport did not exist. And
b) That the Bridging Visa B has the condition 8101 which precludes me from working and I have breached this condition.
Clause 9 above refers to reason a)
11.As regards item b) accusing me of working in breach of referred condition the tribunal cites statements made at the hearing where I freely admitted that I help the boxing promoter out settling the boys (boxers) that he brings from Fiji and that he meets my out-of-pocket expenses. The tribunal failed to enquire deeply into this. Had they done so, I would have explained that in the year or so that it has taken the MRT to hear my case, I have regularly trained (to keep fit) at the promoter’s gym and in doing so have met a few boxers (no more than four) who have come from Fiji. As fellow Fijians it is natural for me to welcome them and when necessary assist them to find accommodation and generally settle. Occasionally I expend small sums in doing this and the promoter has refunded these expenses to me.
I understand that “Work” is defined as “an activity that in Australian normally attracts remuneration” and I repudiate the suggestion that these duties, helping a few Fijian athletes to settle would normally attract remuneration in Australia or anywhere else.
12. In summary I therefore state that:
a) I do not believe that Regulation 422.21(4)b) requires the sponsor to have a strong connection to the sport of the person being sponsored and that both DIMIA and the MRT applied a wrong interpretation to this regulation.
b) I deny that I have not breached condition 8101 and there is no evidence that I have.
(copied without alteration or correction)
On 20 April 2006, the applicant filed a letter dated 18 April 2006 addressed to first respondent and the Court, claiming:
1.The DIMIA and Tribunal both made errors in considering my sponsorship thus failed in giving the right decision.
a) My primary sponsors [Liverpool Gym’ was not considered.
b) Ash & Maali Holdings were my secondary sponsors as they were brought in by Liverpool Gym to cover my living cost.
2.The Tribunal have miss judged the evidence given by myself on the hearing date on 7 February 2005.
a) Please note that the boxers were from Fiji on two occasions only. I had trained with them for a few days as they were brought in without their trainers, to minimise the promoters expenses.
b) The boxers would have come with their trainers at the expense of the promoters.
(copied without alteration or correction)
When the applicant was invited to make oral submissions, he said that it is difficult to determine the future income of a boxer as it is not possible to forecast when the boxer will be engaged to fight. The applicant stated that he was not paid a regular income but had been paid out of pocket expenses by the boxing promoter to assist in the training of visiting boxers from Fiji, who were without their regular managers. This submission appears to address the breach of condition 8101 (no work) of the Regulations, attached to the applicant’s Bridging visa. The Tribunal wrote to the applicant on 7 February 2005 under s.359A of the Act, inviting him to comment on evidence given at the Tribunal hearing about payment of his “out of pocket” expenses by boxing promoters in exchange for training boxers.(CB 71-72) I will return to this issue later.
The applicant also complained that in October 2004 he had been apprehended and placed in immigration detention without explanation. He claims that at that time, he held a valid visa and he was in compliance with its conditions. This is not within the scope of judicial review of the Tribunal decision and I make no further comment on this submission.
Ms Watson, appearing for the respondents, provided written and oral submissions to the Court in respect of the specific matters raised in the applicant’s affidavit and the letter of 18 April 2006. She submits that in respect of the complaint raised by the applicant that his sponsor was not given an opportunity to provide financial information to the delegate, the applicant cannot make the same complaint in relation to the Tribunal. The Tribunal, under s.359(2) of the Act, wrote to the applicant via his agent at “Visas AustraliaNZ”, inviting information in writing about his Tribunal application. That letter specified the information that the Tribunal wished him to provide and gave the applicant 28 days from the date of the letter to respond.(CB 69-70)
As I have mentioned above at [12], another letter was sent to the applicant via his agent, inviting comment on information provided at the hearing. The Tribunal set out the relevant criterion from the Regulations and the Regulations’ definition of “work”. It also required the applicant to give written comment within 28 days of the date of that letter. On 11 March 2005, the agent wrote to the Tribunal seeking an extension of time to respond to the letter of 8 February 2005.(CB 73) On 14 March 2005, the Tribunal granted the applicant an extension of time and that written comments should be provided to the Tribunal within 28 days from 14 March.(CB 75)
The applicant’s agent also forwarded a letter received by the Tribunal on 21 April 2005, attaching a number of documents requested in the
8 February 2005 letter.(CB 77-87) The documents included a statutory declaration by the applicant’s nephew, who provided financial support to the applicant since his arrival in Australia. They also included a letter from the Fiji Boxing and Wrestling Association with a profit and loss statement, a statement from the sponsor’s accountant and a statement from the Mortgage Bazaar saying that they were also sponsoring another boxer.
Ms Watson submits the applicant had ample opportunity to provide the material requested by the Tribunal and that he had done so. However, the fact that the Tribunal found such materials that were submitted did not adequately address the concerns of the Tribunal, is not a matter which can be the subject of a finding of jurisdictional error by the Tribunal.
Paragraph 9 of the applicant’s affidavit claims that the delegate incorrectly applied policy by requiring the sponsor to have a strong connection to the sport (in this case boxing). The applicant submits that this not correct law and refers to reg.422.21(4) of the Regulations. Ms Watson concedes that the delegate’s decision is in error and that there is no requirement in the regulations for the sponsor to be approved by the Minister: see Korovata v Minister for Immigration [2001] FCA 1446 at [39] per Emmett J:
That argument, it seems to me, ignores the terms of cl 421.222(4). There is no requirement that an applicant be sponsored by an organisation in Australia approved by the Minister. The only requirement is that the applicant is sponsored and that the sponsor has good financial and professional status in Australia. Regulation 1.20 has work to do in relation to subclass 421. That is to say, an applicant will not be sponsored by an organisation for the purposes of subcl 4B unless that organisation has undertaken the obligations of a sponsor in relation to that applicant as provided for in r 1.20(2)(b).
However, the Tribunal found the following (CB 103):
42.The Tribunal finds that the visa applicant is unable to satisfy clause 421.222(4)(a) and clause 421.222(4)(c)(ii).
Regulation 421.222(4)(c)(ii) states:
(4)An applicant meets the requirements of this subclause if:
…
(c) the applicant establishes:
…
(ii) that the sponsor has good financial and professional status in Australia; …
On the basis of the financial material provided by the applicant, the Tribunal was not satisfied that the proposed sponsor had the financial capacity to meet their sponsorship obligations.(CB 102) The Tribunal noted that there was no material provided which indicated what the proposed sponsor’s financial position was beyond 20 August 2004. Also that their last financial statement indicated a balance of just over $50,000. This is a finding of fact which was open to the Tribunal.
Ms Watson submits that the Tribunal made a finding in relation to the criteria relating to “professional status” in Australia and interpreted that requirement to mean professional status in a field relevant to the applicant. She submits that this interpretation was open to the Tribunal which is supported by the Department’s Procedures Advice Manual 3 (“PAM3”), Schedule 2 – Sport – Visas 421.
The Tribunal must be satisfied that the criteria of the relevant regulation are met: Susaki v Minister for Immigration [1999] FCA 196. The PAM3 can be of guidance only and must not dictate the outcome of the visa application.
The Tribunal, having found that it was not satisfied as to the proposed sponsor’s financial status, did not consider its professional status as the two independent elements need to be satisfied.
The Tribunal made an independent finding that the applicant had breached a condition of his bridging visa. It based this finding on the applicant’s evidence that he was training boxers and had received some remuneration for this activity from boxing promoters. While it noted other evidence to the contrary, the Tribunal was entitled to prefer the evidence of the applicant. It was noted that this evidence formed the basis of the notice issued to the applicant pursuant to s.359A of the Act. The finding that the applicant had worked in breach of a condition of his bridging visa was a finding open to the Tribunal on the evidence before it.
The Tribunal found that the applicant had failed to satisfy reg.421.222(4)(a) of the Regulations. In this regard, it noted that the applicant did not claim to either be a player, coach or instructor in relation to an Australian team or organisation with which he had entered into an arrangement, neither did he claim that he had participated in a training program. Rather, the applicant claimed that he wanted to fight in boxing tournaments, specifically one identified in February 2004. No further information regarding boxing events was provided. Therefore, putting aside any other issue which the applicant may have with the Tribunal decision, the applicant simply did not satisfy the criteria for grant of the visa.
A further assertion made by the applicant is that the Tribunal erred by failing to consider his primary sponsor, Liverpool Gym. Ms Watson submits that at no stage was Liverpool Gym nominated as a sponsor nor did that Gym provide assurances of support for that purpose. No material was provided to the Tribunal in relation to Liverpool Gym. All of the material in respect of sponsorship submitted by Visas AustraliaNZ to the Tribunal, referred to ASH & Maali Holdings Pty Ltd and their business operation, Mortgage Bazaar.
The balance of the submitted material is a statutory declaration from the applicant’s uncle, a copy of the applicant’s passport and a letter from the Professional Boxing and Wrestling Association of Fiji. The Tribunal decision records in paragraph 13 as follows (CB 95):
…An undated letter from Billy Hussein, co-owner and trainer of Liverpool Pro Gym, stating that he had extended an invitation to the visa applicant to train as a professional boxer with other athletes in his gym. The letter indicated that the visa applicant had been training at the gym for a couple of months and was contributing a lot of his time, experience and talent to the gym members and this was beneficial to those boxers who were training for a professional bout Mr Hussein was organising soon. They had approached Mortgage Bazaar to sponsor the visa applicant and they are willing to provide accommodation and training equipment and other support the visa applicant should require…
That letter sets out evidence before the Tribunal as to the goals of Liverpool Gym. There are further references to the applicant was training there and that he had significant involvement in the organisation. There was no other evidence before the Tribunal to indicate that the gym was to be a sponsor. This claim cannot be sustained.
The applicant also asserts that the Tribunal misjudged the evidence given by him in relation to the activities he undertook. Ms Watson submits that this is merely a complaint about the findings of facts of the Tribunal. The Tribunal clearly put in issue the fact that the applicant had provided evidence at the hearing which suggested that he was working in breach of a condition of his bridging visa. The applicant chose not to deal with that matter directly in the response submitted to the Tribunal. Ms Watson also brings the Court’s attention to paragraph 11 of the applicant’s affidavit, which seeks to adduce fresh evidence on remuneration:
11.I freely admitted that I help the boxing promoter out settling the boys (boxers) that he brings from Fiji and that he meets my out-of-pocket expenses…I have regularly trained (to keep fit) at the promoter’s gym and in doing so have met a few boxers (no more than four) who have come from Fiji. As fellow Fijians it is natural for me to welcome them and when necessary assist them to find accommodation and generally settle. Occasionally I expend small sums in doing this and the promoter has refunded these expenses to me.
Ms Watson objects to the admission of this material which appears to be an explanation of the payment of out-of-pocket expenses by boxing promoters to the applicant for his services. I accept the submission that this appears to be an attempt to bring forth fresh evidence. However I do not believe that this in any way alters the information already before the Tribunal, which was a result of the applicant’s submissions during its hearing. The Tribunal did consider the evidence given by the applicant in respect of payments received from boxing promoters.(CB103.43-103.44) The Tribunal found that the applicant had breached the “no work” provision of his bridging visa in light of information that he provided during its hearing. The material in the applicant’s affidavit does not materially change that finding. This is a finding of fact by the Tribunal and is not a jurisdictional error.
Conclusion
The applicant in these proceedings is a self-represented litigant, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Ms Watson, appearing for the respondents, assisted the Court with written and oral submissions prepared in response to the material filed by the applicant. As indicated in the reasons above, the applicant does not raise any grounds of review in his application. I have treated the points contained in the applicant’s affidavit as raising issues and therefore have treated them as grounds of review. I am satisfied that none of the grounds identified by the applicant in any of the documents can be sustained. Neither is it apparent that any other grounds of review exist which would suggest that the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 27 July 2006
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