Kim & Ors V Minister For Immigration & Anor
[2007] FMCA 166
•6 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KIM & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 166 |
| MIGRATION – MRT decision – jurisdiction to review refusal of business (long stay) subclass 457 visas – employment sponsorship withdrawn before delegate’s decision – delegate’s decision was not a MRT‑reviewable decision – application dismissed. |
| Acts Interpretation Act 1901 (Cth), s.15AB(1)(b) Legislative Instruments Act 2003 (Cth), s.13(1)(a) Migration Act 1958 (Cth), ss.29, 45, 46, 47, 65, 140D, 338, 338(1), 338(2), 338(2)(d), 347(1), 348(1), 476 Migration Legislation Amendment (Sponsorship Measures) Bill 2003 (Cth) Migration Regulations 1994 (Cth), Sch.1 item 1223A(3)(d)(i), Sch.2 items 457.223(4), 457.223(4)(b)(ii), 457.223(4)(i), 457.321 |
| First Applicant: | IN SOOK KIM |
| Second Applicant: | CHOUN YOUNG AN |
| Third Applicant: | HEE JOO AN |
| Fourth Applicant: | HEE WON AN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2981 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 6 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2007 |
REPRESENTATION
| Counsel for the Applicants: | First applicant in person |
| Counsel for the First Respondent: | Mr G Kennett |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The first applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2981 of 2006
| IN SOOK KIM |
First Applicant
| CHOUN YOUNG AN |
Second Applicant
| HEE JOO AN |
Third Applicant
| HEE WON AN |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 16 October 2006, which has been set down for a final hearing on whether the applicants are entitled to remedies under s.476 of the Migration Act 1958 (Cth), (“the Migration Act”) in respect of a decision made by the Migration Review Tribunal, (“the Tribunal”) on 4 September 2006. The Tribunal decided that it did not have jurisdiction to entertain an application for review which was lodged by the applicants on 12 December 2005.
In that application Ms Kim, with her husband and daughters, applied for review of a decision made by a delegate on 11 November 2005. The delegate refused to grant them visas in response to an application lodged on 9 February 2005. In the visa application, Ms Kim was the primary visa applicant, and sought to satisfy primary criteria under a sponsored employee subcategory of subclass 457 class UC visas. Her spouse and two daughters sought visas as secondary applicants in the same subclass.
Under Migration Regulations Sch.2 item 457.223(4), the primary visa subcategory claimed by Ms Kim was available to a person proposing employment in Australia by an employer approved by the Minister both as a “standard business sponsor” and in relation to a particular nominated activity in which the visa applicant would be employed. There were essential criteria that the employment sponsorship originally proposed in the visa application was still on foot at the time of decision, and that the employer had achieved the necessary approvals by that time.
In her visa application Ms Kim identified her sponsoring employer as “BDS Recruit Pty Ltd” (“the company”). I infer that, contemporaneously or prior to the lodgement of the visa application on form 1066, there was submitted by the company the appropriate sponsorship and nomination applications in support of the visa application. Unfortunately, the Court Book has been compiled not to include those documents, but I am ready to infer that the proposed employer had appropriately presented itself as sponsor at the time of visa application.
The Court Book does contain a communication from the company to the Department of Immigration by way of email. On 4 October 2005 the manager of the company informed the Department:
Could you please cancel In Sook Kim’s application for a 457 visa due to prior breaches of obligations and unreliable addresses of sponsored employees from this source.
An officer of the department responded:
Please confirm within 7 days that BDS Recruit no longer wishes to sponsor Ms In Sook Kim as a nominee under subclass 457 visa arrangement.
On 10 October 2005 the company manager responded:
BDS no longer wishes to sponsor this applicant.
There is a note confirming that the officer then spoke to the manager, who orally confirmed:
Ms In Sook Kim is aware that BDS no longer wishes to sponsor her. He spoke to her last week through an interpreter.
The delegate therefore refused the visa application, giving the ground:
457.223(4) The applicant has not been nominated by an employer who is an approved business sponsor. The applicant, therefore, does not meet the criteria of this subclause.
At the time of application, the applicant was nominated by an approved business sponsor, BDS Recruit Pty Ltd. However, in an email message of 10/10/2005 (folio 44), the business sponsor advised that BDS Recruit Pty Ltd no longer wishes to sponsor the applicant.
The delegate also addressed other subcategories of subclass 457, which the applicant had not sought to qualify for, and was unable to do so.
As a result of Ms Kim being unable to satisfy primary visa criteria, the delegate found that none of the secondary applicants:
is a member of the family unit of a person who has satisfied the primary criteria. I find that none of the applicants meets the secondary criteria at regulations 456.311 or 457.321.
I refuse the grant of a Temporary Business (Class UC) visa to the secondary applicants listed above.
As I have indicated, all members of the family are listed as review applicants in relation to the delegate’s decision in an application for review lodged with the Tribunal on 12 December 2005.
The reason for the Tribunal declining jurisdiction was put to the applicants in writing, before a decision was made. Ms Kim responded, suggesting that she wished an opportunity to present a new employment nomination through a new sponsor. She also presented this desire in her application to the Court. However, even if the Tribunal had jurisdiction to consider the merits of the visa application, the presentation of a new sponsoring employer could not have assisted her to qualify. This is because it was a requirement of item 457.223(4)(b)(ii) that the employer presented at the time of decision must be “the employer mentioned in subparagraph 1223A(3)(d)(i)”. This is a reference to that paragraph in Sch.1 to the Migration Regulations, which provides a condition going to the validity of the application for visa for this subcategory, that it must “specify the employer by whom the applicant proposes to be employed”. The applicant’s hopes that she could keep her visa application alive by finding a new employer were, and are, therefore misconceived. Unfortunately, the applicant’s submissions to me today suggest that she still labours under this misconception.
As I have indicated, the Tribunal never reached the point where it could have pointed this out to the applicant, because it held that her application for review failed at its threshold. This was at the point where the Tribunal was obliged to consider whether the decision which was sought to be reviewed was an “MRT-reviewable decision or decisions” (see ss.347(1) and 348(1)). The Tribunal had no jurisdiction to review a decision which could not be so characterised.
In its decision of 4 September 2006, the Tribunal decided that the present delegate’s decision was not an MRT-reviewable decision, and explained its reasons. The correctness of that opinion raises a jurisdictional question, which it is for the Court to answer for itself.
The relevant provisions of s.338 were:
338(1) A decision is an MRT-reviewable decision if this section so provides, …
(2)A decision … to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:
(a) the visa could be granted while the non-citizen is in the migration zone; and
…
(d) where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i)the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii)an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
The Tribunal in the present case considered that its jurisdiction was excluded from entertaining the application for review in relation to the delegate’s decisions affecting both the primary applicant and the secondary applicants, because:
The Tribunal finds that at the time of lodgement of the application for review on 12 December 2005, the primary applicant was not sponsored by an approved sponsor, and that the proposed sponsor had not lodged an application for review with the Tribunal in respect of a decision not to approve the sponsorship.
Accordingly, the Tribunal finds that the delegate’s decision of 11 November 2005 is not an MRT-Reviewable decision pursuant to s.338(2)(d).
There is no suggestion in the papers that any other avenue of jurisdiction was open to the primary applicant, if she could not satisfy s.338(2)(d). Whether the secondary applicants needed also to satisfy that provision, will be considered further below.
The reference in the opening words of s.338(2) to a “decision … to refuse to grant a non-citizen a visa” refers back to the definition of “visa” which has the meaning given by s.29. This gives a general power to the Minister to “grant a non-citizen permission, to be known as a visa, to do either or both of the following: (a) travel to and enter Australia; (b) remain in Australia”. The section then allows visas to be categorised by reference to their definite or indefinite duration. Other sections allow visas to be categorised according to whether they are permanent or temporary, and according to classes, categories, subclasses, and subcategories of visas which are found in the Migration Regulations 1994 (Cth) (“the Migration Regulations”).
Under s.47, the primary decision-maker, the Minister, has a duty to consider the merits only of a “valid application for a visa”, where the conditions of validity are found in provisions of subdivision AA of Division 3 of Part 2 of the Act and in the Regulations. Under s.45 a visa applicant “must apply for a visa of a particular class”, and under s.46(1)(a) the visa application must be for a visa “of a class specified in the application”. However, the approved forms of application steer applicants into nominating not only a relevant class of visa, but require them to identify which subclasses and subcategories of subclasses of visas they claim to be qualified.
The decision-maker under s.65 is obliged to be satisfied in relation to a “valid visa application for a visa” that “the other criteria for it prescribed by this Act or the regulations have been satisfied”. If so satisfied, the Minister is to grant the visa; if not, he or she is “to refuse to grant the visa”. Plainly, the references in this section to “a visa” and to the prescribed criteria “for it” are to such of the visa criteria prescribed in the Regulations as are relevant to the class, subclass and subcategory of subclass identified in the visa application. In my opinion, it is doubtful whether the Minister is obliged to address criteria for subclasses or subcategories of visas which are not relied upon by a visa applicant in the visa application, although I note that it is the usual practice of delegates to do this.
In the above legislative context, I consider that the reference in s.338(2)(d) to “a criterion for the grant of the visa” is a reference to a criterion found within such criteria as are relevant to the particular application which was sought and refused, that is, to the particular subclass or category which the applicant presented in his or her application as the type of visa which that person claimed to be entitled to. On this construction, the question arising under this provision is whether one of the criterion for the visa sought by an applicant for review is a criterion requiring that “the non-citizen is sponsored by an approved sponsor”.
The reference to the “non-citizen” in these words plainly encompasses a primary applicant who is required to meet a criterion requiring sponsorship. However, the position of a secondary visa applicant is less clear, since such a person will often, if not always, not directly face a sponsorship criterion, but will face a criterion of being related to “a person … who, having satisfied the primary criteria, is the holder of” the relevant subclass visa (c.f. item 457.321).
On one view, the words in s.338(2)(d): “where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor” in relation to a delegate’s decision encompassing both primary and secondary visa applicants requires separate examination of the criteria directly applicable to each of them. On this interpretation, a primary visa applicant faces the jurisdictional test in that paragraph, but the secondary applicants may not. This reading would take the reference to “the non-citizen” to be a reference to each applicant for review.
However, this interpretation would clearly produce an anomalous effect in relation to joint applications for review where the sponsorship criterion is a primary criterion but not a secondary criterion. In a situation where the primary applicant had lost his or her sponsor and could not appeal, the family members would have a right of appeal, but no prospects of success whatsoever. I cannot think that the regulations could have intended to confer such a futile right of appeal.
For this reason, I accept the submissions of counsel for the Minister that s.338(2)(d) should be construed so as to apply as if it said: “it is a criterion for the grant of the visa to the primary visa applicant that the non-citizen is sponsored”. Although this requires the reference to “the non-citizen” to be read as a reference to a person who is not necessarily the applicant for review or each of them, I consider that this is required to give the intended meaning to the provision. The consequence is that s.338(2)(d) will apply to the application for review in relation both to a primary visa applicant and also to each secondary applicant, whose qualification for the visa depends upon a primary applicant meeting a sponsorship criterion.
I was referred by counsel for the Minister to extrinsic material, being the explanatory memorandum to the Migration Legislation Amendment (Sponsorship Measures) Bill 2003, which explains the introduction of introducing the s.338(2)(d) limitation on the Tribunal’s jurisdiction. Its stated purpose was:
to prevent abuse of the merits review process by refused visa applicants, who have no sponsor, and therefore no ability to meet the criteria for grant of the visa, seeking to extend their stay in Australia by lodging a review application.
I consider that this extrinsic material confirms the interpretation which I have taken (c.f. Acts Interpretation Act 1901 (Cth), s.15AB(1)(b) and Legislative Instruments Act 2003 (Cth), s.13(1)(a)).
The issue in the present case, therefore, is whether there was such a criterion attaching to the visa sought by Ms Kim in the present case and which was refused by the delegate. This appears to be clearly the case. The category of subclass 457 “Business (Long Stay)” visa which she sought had a time-of-decision criterion in item 457.223(4)(i) that:
(i)the applicant is sponsored by an approved sponsor within the meaning of section 140D of the Act.
Section 140D, which was inserted into the Act at the same time as the limitation on the Tribunal’s jurisdiction as part of a general package of amendments concerning sponsorship, provides:
140DA person is an approved sponsor of another person for a visa at a particular time if:
(a)the first person has consented in writing to sponsor the second person for the visa and that consent has not been withdrawn by notice in writing to the Minister; and
(b)the first person has been approved by the Minister before that time as a sponsor of the second person for the visa, whether the second person is named in the approval or otherwise described; and
(c)the approval has not been cancelled by the Minister before that time; and
(d)a bar of a kind mentioned in paragraph 140L(c) or (d) that would affect the sponsorship of the second person is not in force at that time; and
(e)the terms on which the sponsorship was approved are satisfied at that time.
It is plain, therefore, that in the present case there was a criterion such as referred to in s.338(2)(d) applicable to the grant of the visa sought by the primary applicant in her visa application and in her application to the Tribunal.
On the evidence which was before the Tribunal and is now before me, it is also plain that the applicant no longer had an “approved sponsor” , after the consent of the sponsoring company had been “withdrawn by notice in writing to the Minister” within s.140D(a). This situation was satisfied both at the time of the decision which was sought to be reviewed and at the time of lodgement of the review application. It is therefore unnecessary for me to decide which of these dates is relevant for the purposes of s.338(2)(d), but I am inclined to consider that it is the time of review application which is to be addressed, since this is suggested by the language of s.338(2)(d)(ii).
The Tribunal, therefore, in my opinion, was correct in deciding that the decision sought to be reviewed by each of the review applicants was not an MRT decision, by reason of the exclusion in s.338(2)(d). I find that it did not have jurisdiction to conduct a review of the delegate’s decision in response to the application lodged on 12 December 2005.
The applicants were unrepresented before me and, understandably, were unable to present any arguments which addressed the above points. They argued that “the original sponsor withdrew its nomination without any proper reason or explanation”, and that the Tribunal should have given them an opportunity to find a new sponsor. However, these points are irrelevant to the question of jurisdiction raised by s.338(2)(d), and the second point is also misconceived as I have explained above. Ms Kim’s affidavit also claimed that the Tribunal “did not provide any chance to hear my case”. However, it did invite submissions on the question of jurisdiction, and was not required to invite the applicants to a hearing in circumstances where it was not obliged to conduct a review of the merits of the delegate’s decision. Moreover, any defect in the procedures followed by the Tribunal could not support an order that the Tribunal perform that review, in circumstances where the Court itself has determined that it lacked jurisdiction.
For the above reasons, I have concluded that the applicants are not entitled to relief by way of a writ of mandamus to compel the exercise of that jurisdiction, nor are they entitled to a writ of certiorari to quash the Tribunal’s decision declining jurisdiction. I must therefore dismiss the application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 26 February 2007
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