Kim v Minister for Immigration

[2020] FCCA 2213

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIM v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2213

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a business visa – applicant not having an approved sponsor – whether the applicant was denied procedural fairness considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359, 359A, 359B, 359C, 360, 363A, 379G

Migration Regulations 1994 (Cth)

Cases cited:

Dhillon v Minister for Immigration [2018] FCA 86

Hasran v Minister for Immigration (2010) 183 FCR 413

Minister for Immigration v SZLIX (2008) 245 ALR 501

Minister for Immigration v SZMTA [2019] HCA 3

Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1

Singh v Minister for Immigration [2017] FCAFC 105

SZBYR v Minister for Immigration [2007] 81 ALR 1190

SZFDE v Minister for Immigration & Anor (2007) 232 CLR 189

Applicant: HYUN JOONG KIM

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2807 of 2017

Judgment of: Judge Driver

Hearing date: 11 August 2020

Delivered at: Sydney

Delivered on: 11 August 2020

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Ms D Stone of Sparke Helmore by telephone

ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application filed on 11 September 2017 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2807 of 2017

HYUN JOONG KIM

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Kim, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Kim a temporary business entry visa.  There were four visa applicants, being Mr Kim, his wife and two children.  Only Mr Kim is an applicant in this proceeding.  Background facts relating to this matter are otherwise set out in the Minister’s outline of submissions, filed on 4 August 2020, which I adopt.   

2. Mr Kim, a citizen of the Republic of South Korea, applied for the visa on 25 August 2015. On 24 November 2015, the Minister’s Department refused the nomination application lodged by Mr Kim’s prospective employer GND Renderers Pty Ltd (sponsor).[1]  

   [1] Court Book (CB) 50

3. By letter dated 24 November 2015, the Minister’s Department invited Mr Kim to comment on information that he did not have an approved nomination. The letter explained that his visa application was unlikely to be successful in the absence of an approved nomination and invited him to:[2]

   a)comment on his intentions regarding the visa application (including the provision of evidence to the Minister’s Department that he was subject to an approved nomination),

   b)withdraw the application in writing, or

   c)provide any comment or information that he considered relevant in response to the adverse application.

   [2] CB 50

4. Mr Kim did not provide a response to this letter.

5. On 19 January 2016, the delegate refused the visa application. On 9 February 2016, Mr Kim applied to the Tribunal for review of the delegate’s decision. On the same day, the sponsor lodged a new nomination application in relation to Mr Kim. That application was refused on 8 September 2016.[3]

   [3] CB 100 [6]

6. On 16 August 2017, the Tribunal affirmed the decision under review.

Tribunal proceedings

1. By letter dated 21 July 2017 and emailed to Mr Kim’s agent, the Tribunal invited Mr Kim to a hearing.[4] By letter dated 26 July 2017 and emailed to Mr Kim’s agent, the Tribunal invited Mr Kim to comment on or respond to information under s.359A of the Migration Act 1958 (Cth) (Migration Act) and provide information under s.359(2). The information identified that Mr Kim did not have a nomination from an approved sponsor, and that there was no pending review of the decision to refuse the nomination application.[5] Mr Kim was asked to respond by 9 August 2017, informed that he could seek an extension, and cautioned that he might lose any entitlement to a hearing if he did not respond to the letter.

   [4] CB 75

   [5] CB 79

2. Mr Kim’s migration agent sent an email to the Tribunal on 8 August 2017 (purportedly in reply to the Tribunal’s email attaching the s.359A letter), attaching a response to the hearing invitation.[6] The email did not address the s.359A letter. The Tribunal found that as Mr Kim had failed to respond to the s.359A letter, he had lost the entitlement to attend a hearing. The Tribunal therefore cancelled the hearing and informed Mr Kim of this by letter dated 10 August 2017.[7]

   [6] CB 84

   [7] CB 88

3. Following an enquiry from Mr Kim’s representative regarding the hearing cancellation, the Tribunal invited Mr Kim “to provide any written submission to address his concerns”;[8] a Tribunal file note dated 16 August 2017 confirms that this was communicated to Mr Kim by telephone, but that he was told to provide any further information “as soon as possible as the Member is able to make a decision at any time (and does not need to take any further action to obtain his views on the information or to obtain it)”.[9] On the same day, the Tribunal received an email from Mr Kim’s son which purportedly set out a translation of a hand-written letter from Mr Kim.[10] The email set out a history of Mr Kim’s interactions with his migration agent, appeared to suggest incompetent or otherwise unsatisfactory conduct by the agent, and confirmed that Mr Kim did not have an approved nomination. The letter indicated that Mr Kim obtained all the files from his previous agent and was able to make an appointment with a new migration agent in the course of which, he discovered for the first time that the previous agent had not responded to the Tribunal’s request for information. The letter concluded that “if there is any chance” for the visa application, Mr Kim “strongly promise[d]” to “cooperate” with his agent and the sponsor’s president to provide any documents and answer all questions regarding the application.

   [8] CB 201 [17]

   [9] CB 93

   [10] CB 94

Tribunal decision

1. The Tribunal set out the procedural history of the matter including the email of 16 August 2017.[11] It noted that the August email did not address the issues specified in the s.359A letter.[12] The Tribunal proceeded to consider the application based on the material before it.[13] It identified the issue in the review as whether Mr Kim (who was the primary visa applicant) met the requirement in clause 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) that there be an approved nomination of an occupation relating to Mr Kim by a standard business sponsor that has not ceased.[14]

   [11] CB 100–102 [3]-[20]

   [12] CB 102 [20]

   [13] CB 102 [21]

   [14] CB 102 [23]-[24]

2. The Tribunal found that Mr Kim had not provided evidence to demonstrate that he met the said requirements.[15] It therefore found that Mr Kim did not meet the requirements for the standard business sponsor stream.[16] It noted that Mr Kim had not made any claims regarding the other streams in clause 457.223, nor was there any evidence that Mr Kim would meet the criteria for those streams.[17]

   [15] CB 102-103 [24]-[28]

   [16] CB 103 [30]

   [17] CB 103 [30]

3. The Tribunal also found that the secondary visa applicants did not satisfy clause 457.321.[18]

   [18] CB 103 [30]

The current proceedings

1. These proceedings began with a show cause application, filed on 11 September 2017, on which Mr Kim continues to rely. 

2. There is one particularised ground in that application:

   The second respondent denied the applicant procedural fairness.

   (a) The Tribunal failed to recognise that when on 16 August 2017, it made a decision to affirm the decision of the first respondent to refuse a subclass 457 Temporary Business Entry visa, it had failed  to fulfil its obligation to provide the applicant with an opportunity to give evidence and present arguments relating to the issues under review and consider the information in making the decision on the review, in that:

   (i) the Tribunal knew that the applicant only became aware of the Tribunal's invitation to attend hearing on 4 August 2017 when a Short Messaging Service (SMS) was sent directly to the applicant;

   (ii) the Tribunal knew that the applicant was unaware of the Tribunal's invitation to comment on or respond to information and to provide information dated 26 July 2016; and

   (iii) the Tribunal did not provide the applicant with a reasonable opportunity to respond when the Tribunal made its decision on 16 August 201 7.

   (b) Further, the Tribunal failed to consider whether the applicant had provided a reasonable explanation for his failure to respond to the invitation.

3. The application is supported by an affidavit filed with it, which I received as a submission.  I have before me, as evidence, the court book filed on 3 November 2017. 

4. This matter was originally docketed to Judge Barnes but, at a call over on 15 March 2019, she transferred the case to me.   

5. I invited oral submissions from Mr Kim this morning.  He acknowledged the general procedural history of the case before the Tribunal.  He indicated that he was relying on the assistance provided by his agent, and his agent had been at fault.  Mr Kim noted that his son had written to the Tribunal in an attempt to clarify the circumstances.  He was concerned to know what his options were beyond this point.  In my view, the issues raised by Mr Kim, both in his application and supporting affidavit and orally, do not point to any jurisdictional error by the Tribunal.  The Ministers submissions deal with the legal issues, I agree with those submissions. 

6. The sole ground of the application to show cause contends that the Tribunal “denied the applicant procedural fairness”. The particulars can be summarised as three contentions of error:

   a)the Tribunal failed to fulfil its obligation to provide Mr Kim with an opportunity to “give evidence and present arguments” relating to the issues in the review, in circumstances where the Tribunal “knew” that Mr Kim was not aware of the hearing invitation until 4 August 2017 when an SMS reminder was sent to him, and was unaware of the s.359A letter;

   b)the Tribunal did not provide Mr Kim with “a reasonable opportunity to respond”; and

   c)the Tribunal failed to consider whether Mr Kim had a reasonable explanation for his failure to respond to “the invitation”.

7. For the reasons set out below, these contentions reveal a misunderstanding of the statutory requirements and do not make out error.

8. First, by force of ss.360(2)(c) and 363A of the Migration Act, Mr Kim lost his entitlement to a hearing when he failed to respond to the s.359A letter and the Tribunal had no discretion to allow him to appear at a hearing.[19] There is no suggestion that the s.359A letter failed to comply with the statutory requirements.[20] Further, the letter was duly sent and apparently received by Mr Kim’s representative on the email address provided in the review application.[21] Thus, the Tribunal was correct to find that s.360(2)(c) operated.

   [19] Hasran v Minister for Immigration (2010) 183 FCR 413 at [27] and [34] cited with approval in Singh v Minister for Immigration [2017] FCAFC 105 at [59]

   [20] Migration Act, s.379G

   [21] CB 94

9. While Mr Kim has made complaints regarding his previous migration agent,[22] the complaints if accepted do not rise above “negligence or inadvertence”,[23] and cannot ground an error of the type identified by the High Court of Australia in SZFDE v Minister for Immigration & Anor.[24] This disposes of the contention set out at (a).

   [22] CB 94- 95

   [23] Minister for Immigration v SZLIX (2008) 245 ALR 501 at [30]

   [24] (2007) 232 CLR 189

10. Turning to (b), the complaint is that the Tribunal did not provide Mr Kim with “a reasonable opportunity” to respond to the s.359A letter. Contrary to Mr Kim’s assertion, the timeframe provided for a response complied with the 14-day prescribed period.[25] Further, the Tribunal informed Mr Kim on 16 August 2017, it was under no obligation to obtain further information from him, but indicated that he could provide his concerns in writing but that this must be done so “as soon as possible” and that the Tribunal may make a decision at any time and does not need to take any further action to obtain information from Mr Kim.[26] The Tribunal was correct in this regard. By virtue of s.359C(2) in circumstances where Mr Kim failed to respond to the s.359A letter, the Tribunal was entitled to make a decision on the review without taking any further action to obtain Mr Kim’s views on the information. Accordingly no error is made out by the contention in (b).

    [25] Migration Act, s.359B(2) and regulation 4.17 of the Regulations

    [26] CB 93

11. Finally, while Mr Kim did in fact provide a response explaining his failure to respond to the s.359A letter on 16 August 2017[27] (the same date as the Tribunal’s decision), nothing in that response made the Tribunal’s decision to refuse a further opportunity unreasonable. The response supported the finding that there was no approved nomination, provided no clear timeframe for addressing the issue, and did not request an extension of time to respond. In any event, I would decline to remit the matter because Mr Kim remains unable to satisfy the criterion for the visa without being the subject of an approved nomination. In those circumstances:

    a)no jurisdictional error arises because any errors of the Tribunal did not result in any practical injustice;[28]

    b)any error by the Tribunal is immaterial in circumstances where it could not realistically affect the Tribunal’s decision;[29] and

    c)it would be futile to remit the matter in circumstances where Mr Kim is still not the subject of an approved nomination.[30]

    [27] CB 94 - 95

    [28] Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1, 14 at [37]

    [29] Minister for Immigration v SZMTA [2019] HCA 3

    [30] Singh at [81]-[90]; SZBYR v Minister for Immigration [2007] 81 ALR 1190 at [27]-[29]; Dhillon v Minister for Immigration [2018] FCA 86 at [9]-[10]

12. I conclude that, Mr Kim is unable to demonstrate that the decision of the tribunal is affected by any jurisdictional error. The decision is, therefore, a privative clause decision and the application must be dismissed.

13. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 17 August 2020