Kim v Minister for Immigration
[2006] FMCA 1206
•18 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KIM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1206 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of educational visas – application requiring an approved sponsor – sponsorship application rejected – applicant failing to attend MRT hearing – whether the MRT gave sufficient notice of the hearing considered – futility of further review. |
| Migration Act 1958 (Cth), ss.359A, 362B, 427 Migration Regulations 1994 (Cth) |
| Abebe v Commonwealth (1999) 197 CLR 510 Azzi v Minister for Immigration (2002) 195 ALR 166 Luu v Renevier (1989) 91 ALR 39 M17 v Minister for Immigration [2003] FCA 1364 Prasad v Minister for Immigration (1985) 6 FCR 155 Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 Tvarkovski v Minister for Immigration [2001] FCA 375 |
| First Applicant: | YOUNG MI KIM |
| Second Applicant: | KIL HONG CHOI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG2789 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 18 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2006 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Ms K McNamara Phillips Fox |
ORDERS
The judicial review 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 $3,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2789 of 2005
| YOUNG MI KIM |
First Applicant
KIL HONG CHOI
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
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 MRT”). The MRT affirmed a decision of a delegate of the Minister not to grant the applicant and her husband educational temporary class TH visas. The background facts relating to this matter are adequately set out in the Minister’s written submissions filed on 8 August 2006. I adopt as background for the purposes of this judgment paragraphs 3 to 12 of those written submissions:
The primary applicant is a female citizen of the Republic of Korea who applied for an Educational (Temporary)(Class TH) visa on 29 July 2004. The secondary applicant is the primary applicant's husband who makes no independent claims and relies on the success of the primary applicant's claims. The primary applicant is referred to as 'the applicant'.
The application was refused by a delegate of the first respondent on 25 January 2005.[1] The applicant applied to the MRT for review of the original decision on 24 February 2005[2] but the MRT affirmed the delegate's refusal in a decision handed down on 24 August 2005.[3]
[1] court book, pages 10-15.
[2] court book, pages 16-21.
[3] court book, pages 33-4.
The applicant's claims
The applicant only made claims against the subclass 442 Occupational Trainee visa[4] (the Trainee visa). The applicant made no claims against any other subclass in the visa class.
[4] court book, pages 1-9.
The applicant applied for the Trainee visa to study Japanese Restaurant Management for one year in Australia.[5] It is a criterion of the Trainee visa that the applicant has a nomination from an approved nominator unless the training is provided by the Commonwealth: Clause 444.222(1) of the Migration Regulations 1994 (Cth) (the Regulations).
[5] court book, page 6.
The applicant 's nomination was from Shark Australia Pty Ltd (Shark Australia).[6] However, Shark Australia's own application to become an approved nominator was refused by the Minister on 25 January 2005.
[6] court book, page 10.
In her MRT review application, the applicant claimed that the financial capacity of the nominating company was not relevant as she was not being paid by the company.[7]
[7] court book, page 20.
Section 359A letter
By letter dated 13 April 2005, the MRT invited the applicant to comment on the refusal of Shark Australia's application for a nomination.[8]
[8] court book, pages 24-26.
a)Importantly, the applicant was informed that this information meant that "the Member may be unable to find that you meet Regulation 442.222 which requires you have a valid nomination at the time of decision".
b)The MRT was conveying the fact that it had the power to review (and approve) the nomination of Shark Australia as part of the present application for review.
c)The applicant replied on 19 May 2005 that 'Shark Australia Pty Ltd is a qualified company to provide occupational training for me and other candidates'.[9]
[9] court book, pages 27-28.
Hearing
The applicant was invited to a hearing on 5 August 2005 at 10.30am by letter dated 27 June 2005 inviting the applicant to attend a hearing.[10] On the 15 July 2005, the MRT wrote to the applicant and rescheduled the hearing to 12.00pm.[11] The applicant did not reply to either invitation nor attend the hearing. Consequently, the MRT proceeded to make its decision on 24 August 2005 pursuant to s.362B of the Act.
[10] court book, pages 29-30.
[11] court book, pages 30-31.
The MRT decision
The MRT set out the relevant parts of clause 442.222 of the Regulations:
(1)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.
(2)The reference in subclause (1) to occupational training to be provided by the Commonwealth includes occupational training to be provided by:
(a)a body corporate incorporated for a public purpose by an Act or regulations made under an Act; or
(b) an authority or body, not being a body corporate, established for a public purpose by, or under, an Act or regulations made under an Act.
The MRT found that the applicant failed to satisfy clause 444.222 of the Regulations because the applicant did have an approved nomination or was involved in training provided by the Commonwealth. The MRT found that the applicant, whose nomination by Shark Australia had already previously been refused by the delegate, did not provide the MRT with any evidence as requested in its letter of 19 March 2005 to persuade the MRT to approve that nomination.
The applicants rely upon their judicial review application filed on 30 September 2005. I adopt paragraph 16 of the Minister’s submissions which sets out those grounds:
The applicant seeks to impugn the MRT decision on three grounds:
(1) MRT made an (sic) mistake in that the Tribunal did not take into account relevant considerations. (Refer to the Migration Regulation (sic) clause 442.222.
(2) MRT did not make further inquiries with the nominator, which is considered as an improper exercise of the relevant power. Therefore the Tribunal's decision is not valid.
(3) MRT did not review the information about the company which was supposed to provide occupational training for me as I requested on my application.
The primary applicant, who is the only applicant who appeared before me today, was unable to usefully expand upon the asserted grounds for review. She faces the insuperable obstacle that it was not open to the MRT to grant the class of visa she sought at the time the MRT decided the matter. I agree with and adopt for the purposes of this judgment the Minister’s written submissions dealing with the grounds advanced by the applicant. I adopt with minor amendments paragraphs 17 to 24 of those written submissions:
Ground (1) cannot be sustained because the MRT specifically referred to, excerpted and applied clause 442.222 in the Regulations.[12] The MRT found that the applicant did not meet clause 442.222.
[12] court book, pages 39-40.
Ground (2) must fail because it is predicated on the MRT having a duty to inquire into the nomination. It is well established that it is for an applicant to make their case and there is no duty on the MRT to independently seek information from the nominator except in exceptional circumstances. North J set out these principles in M17 v Minister for Immigration [2003] FCA 1364 at [28] to [30]:
[28] The appellant put forward evidence of her dealings with Padmi, her instructions to her migration agent concerning membership of the JVP, and of the people seeking her out in Sri Lanka. It was open to the appellant to bring forward further evidence if she desired. It was her application and the Tribunal had no obligation to make her case for her: Abebe v Commonwealth (1999) 197 CLR 510, per Gummow and Hayne JJ at 576; Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277, per French J at par 29. The application of this approach can be seen particularly in relation to the alleged obligation of the Tribunal to make inquiries from the appellant’s migration agent. It was open to the appellant to bring forward evidence from the migration agent herself.
[29] The failure of the Tribunal to make its own inquiries, for instance by use of its power under s 427(1)(d) of the Migration Act, will rarely amount to legal error: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; Luu v Renevier (1989) 91 ALR 39; Azzi v Minister for Immigration & Multicultural Affairs (2002) 195 ALR 166.
[30] In Prasad, Wilcox J held that a Tribunal may [only] fall into legal error if it fails to make inquiries where it is obvious that material, which was centrally relevant to the decision, was readily available. (emphasis added)
In this case, there is no duty to inquire by contacting the nominator to discuss the visa criteria. If the applicant wanted evidence presented about the nomination, the applicant was entitled to do so.
In any event, the MRT specifically requested information about the nomination in the s.359A dated 13 April 2005.
In the reply to the s.359A letter, the applicant made bald claims that Shark Australia Pty Ltd:
is a qualified company to provide occupational training for me and other candidates. I has sufficient occupational training for me and other candidates.
The applicant did not further particularise her claim, nor did she appear at the MRT hearing to elaborate. The applicant did not otherwise refer to the refusal of the nomination and suggest there was any error in that decision made on 25 January 2005. On the information provided by the applicant about the nomination, there was no reviewable error in relation to the nomination.
The MRT did not fail to examine the information the applicant provided. Instead, on examining the information provided, the MRT was not satisfied that nomination (and consequently the visa application) should be approved.
a)It is clear that, consistently with Tvarkovski v Minister for Immigration [2001] FCA 375, the MRT proceeded on the basis that it had the power to consider the nomination at the time of the decision. This is evidenced by the terms of its s.359A letter, stating that the "Member may be unable to find that you meet Regulation 442.222 … at the time of decision". (emphasis added)
The MRT had no choice but to affirm the delegate's refusal in circumstances where the applicant clearly did not meet a criterion of the Trainee visa.
The only other issue is one not raised by the applicants. That is, whether the applicants were given sufficient notice of the MRT hearing to which they were invited. I received as evidence the court book filed on 21 November 2005. That discloses that two hearing invitations were issued to Ms Kim dated 27 June 2005[13], and 15 July 2005[14]. On the assumption that the letter dated 15 July 2005 was despatched within three days of that date Ms Kim would be taken to have received that letter on 26 July 2005. Pursuant to regulation 4.21(b)(i) of the Migration Regulations the MRT needed to give at least seven working days notice from the date of receipt of the invitation. The seven working days would have expired on 4 August 2005. The re-scheduled hearing was to be the following day. I do not have any evidence of when the second hearing invitation was in fact despatched. If it was not despatched within three days of the date it bore then an issue of insufficient notice would exist. Nevertheless, I do not consider it necessary to pursue that issue further. That is because even if an error exists in terms of the notice provided it would be futile to require further consideration of this matter by the MRT.
[13] court book, page 29
[14] court book, page 31
That issue of futility arises because the applicants still lack an approved sponsor. In the absence of an approved sponsor or anything new to put before the MRT about that issue (of which there is no evidence) the applicants do not meet an essential criterion for the grant of the visa they seek. It follows that the outcome of any further consideration by the MRT would be the same.
I will order that the judicial review application be dismissed.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $3,700. I note that the Minister has been represented on four occasions in this matter including today. In addition a court book has been prepared as well as detailed written submissions. I have no difficulty in accepting the sum of $3,700 as a proper award of costs on a party and party basis. The principal applicant, Ms Kim, asserts an inability to pay costs but that is not a reason for the Court to refrain from making an order.
I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $3,700.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 24 August 2006
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