Kim v Minister for Immigration

[2005] FMCA 1699

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KIM v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1699

MIGRATION – Employer Nomination (Residence) (Class BW) visa – the Tribunal complied with statutory requirement of s.379G of the Act – employer nomination refused – nomination was a prerequisite for approval of visa – clause 856.222 not fulfilled – summary dismissal – no reasonable cause of action disclosed.

Migration Act 1958, ss.362B, 379G, 379G(2), 477(1A).
Federal Magistrate Court Rules 2001, rr.13.10(a), 21.02(2)(a)
Migration Regulations 1994, Regulations.5.19(2).
Migration Regulations 1994, Schedule 2 Clauses 856.213(a), 856.221, 856.222

Applicant A163 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 677
Xie v Immigration Department [1999] FCA 365
Applicant A135 of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 708
Ebber v The Human Rights and Equal Opportunity Commission (1995) 129 ALR 455

Applicant: DAE-JUNG KIM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1407 of 2005

Judgment of: Nicholls FM

Hearing date: 25 November 2005

Date of Last Submission: 9 November 2005

Delivered at: Sydney

Delivered on: 25 November 2005

REPRESENTATION

Counsel for the Applicant: Mr. D. Knaggs

Solicitors for the Applicant: Cross Law

Counsel for the Respondent: Ms. A. Alex

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent to these proceedings.

2. The application is dismissed in upholding the respondent’s notice of motion.

3. The applicant to pay the first respondents costs set in the amount of $3200, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1407 of 2005

DAE-JUNG KIM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised)

1. I have before me an application filed in this Court on 31 May 2005 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 29 September 2004 to affirm the decision of a delegate of the respondent Minister made on 5 December 2002 to refuse Employer Nomination (Residence) (Class BW) visas to Mr. Kim (“the applicant”) and his wife and two children. Only Mr. Kim has made the application to this Court. The Tribunal is joined as the second respondent in these proceedings.

2. The application made to the first respondent's Department is at Court Book (“CB”) 1 to CB 15. The applicant was notified by letter dated
   5 December 2002 that this application was refused (CB 46 to CB 47). The decision record is at CB 48 to CB 52 and a copy was enclosed with this letter. It is clear from the delegate’s decision record that the applicant (before me) had been nominated by “Bunny Jewellery and Watches” for employment with that firm. However, the nomination submitted by that company in relation to the applicant's application was refused by the first respondent’s Department on 23 October 2002. An approved employer nomination was a prerequisite for approval of the application for the visas. The applicants applied to the Tribunal for review of the decision to refuse them the visas. That application is reproduced at CB 53 to CB 57. The application was received by the Tribunal on 3 January 2003.

3. Relevantly, in the application to the Tribunal, the applicants nominated their representative (Abdul Hamid Atiz of Bridge Port International), who was a registered migration agent, to be authorised to receive correspondence in respect of their application (CB 54). The applicant was on notice of the affect of this nomination. In the application form the Tribunal provided the following:

   “The following details should be provided if you wish to have a representative assist you with this application and you wish them to receive all correspondence in relation to your application. As an authorised recipient, pursuant to section 379G(2) of the Migration Act 1958, any correspondence given to your representative by the Tribunal will be taken to have been given to you.”

4. The applicant before me signed the declaration at the end of the application for review form (CB 57), and further (at CB 56), provided the address of his migration agent/representative as the address for correspondence. The form clearly states:

   “If you wish the Tribunal to send all documents to an address other than the first residential address advised in Section 1 (this is the applicant's home address) please indicate below:”

   The form then shows that the applicant provided an address which was the address for his agent/representative.

   Further, the form stated:

   “Please Note: If you have nominated a representative in section 4, (which the applicant had done) all correspondence will be sent to that person and a copy of all correspondence will be sent to you.”

   The Tribunal acknowledged receipt of the application by letter dated 6 January 2003 (CB 58), sent to the authorised recipient with a copy to the applicant’s home address.

5. By letter dated 18 May 2004 (CB 59) the applicant advised the Tribunal:

   “I refer to the above named matter and in particular the rejection my employer nomination sponsor (Bunny Jewellery -- file number: N02-08492). I wish to advise that I’m in the process of finalising arrangements with a new sponsor, it is anticipated that this application will be lodged with DIMIA [the respondent’s Department] within the next seven days. I will forward to you a copy of the lodgement receipt.

   I wish to confirm that the MRT will await the determination of DIMIA before proceeding to make a determination on my application.

   I look forward to your earliest advices.”

   By letter dated 9 June 2004 (CB 60) the applicant again wrote to the Tribunal and provided a receipt issued by the first respondent's Department relating to, as he stated in his letter, confirmation that his new sponsor had lodged an application under the Employer Nomination Scheme.

6. On 12 August 2004 the Tribunal wrote to the applicant by letter sent to his authorised recipient and migration agent/representative, with a copy sent to the applicant, inviting the applicant to attend a hearing before the Tribunal on 8 September 2004. The letter noted that if the applicant failed to appear before the Tribunal at the scheduled time, then s.362B of the Migration Act 1958 (“the Act”) would allow the Tribunal to make a decision on the review without taking any further action to allow the applicant to appear (CB 62 to CB 63). The applicant did not respond to this invitation and did not appear at the hearing before the Tribunal. The Tribunal then proceeded without taking any further action, to make its decision on 29 September 2004. Its decision record is copied at CB 70 to CB 73. The Tribunal notified, and invited, the applicant to the handing down of the decision on 29 September 2004, by a letter dated 9 September 2004 (CB 65 to CB 66). This letter was sent to the authorised recipient for correspondence with a copy sent to the applicant’s home address as advised in the application for review (see below for other possible home address).

7. By letter dated 10 April 2005 the applicant wrote to the Tribunal (CB 75) advising:

   1)That it came “as a great shock” to him that his application before the Tribunal had been determined in September 2004. His reasons were that he had advised the Tribunal of his change of address, yet had not received any correspondence from the Tribunal.

   2)That Mr. Andrew Kim (a “family friend”) had contacted the Tribunal to notify of the change of address “as early as June 2004”. The applicant enclosed a letter from Mr. Kim (the “family friend”) claiming that he had contacted the Tribunal to advise of the applicant’s new residential address.

   3)That his “representatives” previously handling the matter had “ceased acting” in early 2004 and he had been “in the process of selecting a new agent/representative, and was likely to appoint the solicitor acting on behalf of my new spouse.”

   The Tribunal’s responded by letter dated 22 April 2005 (CB 78). The Tribunal’s advice was that while he claimed that his “representatives” had ceased acting in his case in early 2004 he had not advised the Tribunal of this and therefore the Tribunal had continued to send correspondence to the authorised recipient (as it was required to do by statute). The Tribunal noted that the correspondence copied to the residential address was sent “out of courtesy”. The Tribunal also noted that he had “provided a different residential address” in the correspondence of 9 June 2004.

8. Only Mr. Kim (the principal applicant to the Tribunal) has made the application to this Court. The application states as the grounds of review:

   “1)That the Migration Review Tribunal committed an error in law in the interpretation of the Migration Act and Regulations relating to notification to the applicant of its decision.

   2)That the applicant never received the letter from the Tribunal advising of the hearing date notwithstanding he had notified the Tribunal of the change of his address and this error was admitted by the Tribunal in the second letter of 22 April 2005.”

9. The matter has come before me by way of Notice of Motion filed by the first respondent seeking summary dismissal pursuant to Rule 13.10(a) of the Federal Magistrate Court Rules 2001 on the grounds that there is no reasonable cause of action disclosed in relation to these proceedings. I also have before me the affidavit, in support of the Notice of Motion, of Adele Alex, a solicitor in the employ of the respondent’s solicitors, sworn on 13 July 2005. Further, I have before me, filed by the first respondent, a Notice of Objection to Competency on the basis that the respondent objects to the jurisdiction of this Court to try the matter on the ground that s.477(1A) of the Act provides that an application for review must be lodged within 28 days of the notification of the decision. It asserts that the applicant was notified by letter of the Tribunal's decision dated 29 September 2004 and filed an application for judicial review on 31 May 2005, outside the 28 days period following notification, as required by s.477(1A) of the Act. This notice is also supported by way of the affidavit of Adele Alex, affirmed on 15 July 2005.

10. Relevantly, the history of this matter before this Court is:

    1)The application for judicial review was filed on 31 May 2005. This was filed by the applicant, and no solicitor appeared on the record.

    2)The first Court date in this matter was on 10 June 2004. The respondent was represented by solicitors Phillips Fox who were on the record. Solicitor Mr. Douglas Knaggs appeared on behalf of the applicant and gave an undertaking to the Court that he would file a Notice of Appearance within seven days. Amongst others, orders were also made that the applicant was to file and serve any affidavit containing additional evidence relied upon, and that the applicant had to file and serve an amended application giving complete particulars of each ground of review relied upon by 2 September 2005 (Orders 3 and 4).

    3)On 20 June 2005 the respondent’s solicitors contacted Mr. Knaggs and noted that no Notice of Appearance had been filed. Mr. Knaggs confirmed that he was still the legal representative for the applicant and that he would file such a notice (this letter was tendered by Ms. Alex to the Court on 18 November 2005 and I marked it Respondent's Exhibit 2 (“RE2”))

    4)On 14 July 2005 the respondent’s solicitors wrote to Mr. Knaggs and enclosed by way of service the Notice of Motion and affidavit in support which was the subject of the proceedings before me on 18 November 2005 (this was subsequently marked as Respondent's Exhibit 1 (“RE1”)).

11. As matters stood on the morning of the hearing before me on
    18 November 2005, Mr. Knaggs and indeed no other legal representative, had filed any Notice of Appearance on behalf of the applicant. In anticipation therefore of the applicant appearing personally an interpreter in the appropriate language had been booked to assist the applicant. Ms. Alex appeared for the respondents. In any event, Mr. Knaggs did appear and sought to file his Notice of Appearance in Court. In all the circumstances I granted leave for this. However, I note that Mr. Knaggs provided no real explanation for his failure to comply with an undertaking given to the Court over five months earlier. The only explanation offered by Mr. Knaggs  was that he was aware that he needed to file a Notice of Appearance and claimed that it is often in the legal profession that one obtains late instructions which means that a notice has not been filed by the time of the first Court date. But this does not explain a situation where the issue was that Mr. Knaggs gave an undertaking to a Registrar of this Court at the first Court date. Subsequently, it appears (from what he said to me) that he simply forgot and took no action in relation to the undertaking. I noted Mr. Knaggs’s apology for his failure to act on his undertaking.

12. Mr. Knaggs sought an adjournment on the basis that he claimed that although he had contact with his client in June 2005 he had only subsequently had contact again with his client on the morning of the hearing (18 November 2005). Mr. Knaggs submitted that he had prepared an affidavit relating to the circumstances of his difficulty in contacting the applicant and that in fact he was only able to contact his client through the intervention that morning of another person who Mr. Knaggs submitted was a former migration agent whom Mr. Knaggs advised was still “representing these people”. He further advised that the affidavit made reference to another sponsor who had offered to be the sponsor for the applicant. As I understood him no action had been taken as yet to seek nomination and approval as a sponsor by any other party. While the affidavit may have been relevant to the issue of whether an adjournment should be granted or not, I pressed Mr. Knaggs as to the relevance now of a new sponsor, or a proposed new sponsor, in showing jurisdictional error on the part of the Tribunal's decision. I put to Mr. Knaggs that on a preliminary view, given the state of the applicable statute and regulations, that even if some error could be found in the Tribunal's decision relating to the date of notification of the hearing before the Tribunal (which as I set out below is not the case in my view) that in any event the application before this Court would fail. A new sponsor would not assist the applicant in showing jurisdictional error on the part of the Tribunal because the approved sponsor at the time of the Tribunal's decision needed to be the same sponsor as at the time of application, and this was not evident in the case as it had come before the Tribunal. He conceded that he could not see any such error in the Tribunal's decision

13. Nonetheless Mr. Knaggs pressed that his client had told him that he had left everything to the “agent” and that he was “blissfully unaware” as to the agent’s deregistered status, and that this contributed to the failure of the applicant to contact Mr. Knaggs. I found all of this to be most unsatisfactory. Mr. Knaggs, although he had failed to comply with an undertaking to put himself on the record, clearly had some involvement with the applicant at the time of the making of the orders at the first Court date (10 June 2005). It is clear that the conduct of this case before this Court by the applicant has not been satisfactory in a number of ways (for example in that Mr. Knaggs, who on his own admission, has “represented” the applicant for at least five months, has taken no action on behalf of the applicant to prosecute this matter, and an applicant who appears, from what Mr. Knaggs put to me to have, continued to deal with a person said to be an unregistered migration agent, instead of his solicitor in a matter that was no longer before a Tribunal, but had come before a Court). Mr. Knaggs submitted that his reasons for seeking the adjournment were so that he could obtain “final instructions” from his client, particularly in circumstances where it “seems to be the case that there is no merit in his application”. Ms. Alex indicated that she was inclined to press the hearing of the Notice of Motion and oppose the adjournment, but left it in the Court’s hands. Nonetheless, in all of the circumstances I was persuaded by the fact that the applicant in the matter before me was from a non English-speaking background, and I felt it appropriate that I give Mr. Knaggs a one week adjournment to obtain proper instructions from his client.
    I adjourned the matter until 25 November 2005 at 10:15 a.m.

14. When the hearing re-commenced on 25 November 2005, Mr. Knaggs advised that again he had been unable to speak to his client until the morning of this hearing and stated that the reason that his client told him that he did not contact him during the week was because the former migration agent (who appeared to be still assisting the applicant) allegedly told him “don't worry I’m fixing everything”. In any event, Mr. Knaggs advised that his current instructions were to oppose the Notice of Motion on the basis that the applicant wanted a final hearing rather than resolution at an interlocutory stage. Mr. Knaggs’s submission was that the Notice of Motion should be struck out on the basis that there was a lack of procedural fairness in that the Tribunal conceded it did not send notification of the invitation to the hearing to the applicant's correct address. Mr. Knaggs conceded that the Tribunal was not wrong in sending notification to the agent (authorised recipient) and further was unable to assist with the impact of s.379G of the Act on the circumstances in this case. However, his argument was that at CB 56 (being part of the application form for review to the Tribunal) the Tribunal form states:

    “…all correspondence will be sent to that person [the authorised recipient] and a copy of all correspondence will be sent to you.”

    His argument was that although it was discretionary on the part of the Tribunal as to whether to send a copy to the applicant, that the Tribunal’s practice at the time was to do so. In this case the Tribunal had sent the letter to the applicant's wrong residential address.

15. I also sought submissions from Mr. Knaggs on the respondent’s argument (and ultimately the issue on which the Tribunal’s decision turned) that regardless of any application by a new sponsor (and there was no evidence before the Tribunal that any such new sponsor had been approved) that the relevant statutory, and in particular regardless that the approved nominator at the time of decision on the application for the class of visa applied for by this applicant, must be the same nominator put forward at the time of the application for the visa. Mr. Knaggs’s submission was that the applicant had obtained an alternative sponsor during the course of the review before the Tribunal as shown by the letter from the applicant to the Tribunal reproduced at CB 59 and the documents reproduced at CB 60 and CB 61. Mr. Knaggs submitted that the applicant had been told by the Tribunal that it was possible to provide an alternative nominee, and the applicant had acted on that basis. However, Mr. Knaggs was unable to point to anything, and particularly did not refer to any evidence that he would be able to put before the Court, to support this assertion. In any event, as he himself conceded at the hearing before me, strictly “on the letter of 856.21 it wouldn't matter perhaps even if the Tribunal had said something like that because in strict law it wouldn't work”.

1. For the applicant's benefit in particular, I note that an application for summary dismissal should be approached with caution, and that an order summarily dismissing proceedings on the basis that the application for review fails to disclose a reasonable cause of action should only be made where there is no real question to be tried or where the claims are clearly untenable and cannot succeed: Applicant A163 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 677 at [1] per Selway J., Xie v Immigration Department [1999] FCA 365 at [20] per Carr J., and Applicant A135 of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 708 per Finn J. at [3]-[6]. I also note the respondent's reference to Ebber v The Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 Drummond J., at 468:

   “A complainant must therefore have at the outset of the inquiry into his complaint sufficient material … to show that he has more than a remote possibility of a well-founded claim, if he is to defeat an application for the summary dismissal of the case that can be made at the start of the inquiry.”

2. The respondent submits that this particular application discloses no reasonable cause of action, as there is no dispute as to the facts found by the Tribunal, or to the plain words of the legislative requirement that the applicant was required to satisfy. As the Tribunal found in its decision record at CB 73, Clause 856.222 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”), provides relevantly that at the time of decision, amongst the criteria to be satisfied is:

   Clause 856.222: “The Minister is satisfied that the appointment mentioned in paragraph 856.213(a) will provide the employment referred to in the relevant employer nomination”

   Clause 856.213(a) provides that one criterion to be satisfied at the time of application is:

   (a)“The applicant has been nominated by an employer in accordance with sub regulations 5.19(2) for an appointment in the business of that employer”

   Regulation 5.19(2) sets out the criteria to be met in respect of an employment nomination. The visa applied for by the applicant was dependant on an approved employer nomination.

3. The Tribunal found (CB 72.7) that a necessary requirement (to be satisfied at the time of application for the visa) for the visa applied for is that the applicant must be nominated by an employer in respect of an appointment in the business of that employer (clause 856.213), and that at the time of decision that appointment must be approved (clause 856.221). It found that the application for appointment by Bunny Jewellery and Watches had been refused and that this had been affirmed on review by a differently constituted Tribunal.

4. The Tribunal noted (CB 72.9) that the applicant had written to the Tribunal on 18 May 2004 and advised that he was in the “process of finalising arrangements with a new sponsor” and that subsequently had sent confirmation that a new Employment Nomination Scheme application (involving another employer) had been made to the first respondent’s Department. The Tribunal noted that there was no evidence before it that this had been approved (CB 73.1).

5. But notwithstanding this new nomination application the Tribunal found that the effect of clause 856.222 of Schedule 2 to the Regulations (when looked at in conjunction with clause 856.213) is that an approved nomination at the time of the making of the decision in the visa application must be the same nomination made by an employer in respect of an appointment in the business of that employer at the time of the making of the application for the visa. The Tribunal found (CB 73.3) that Bunny Jewellery and Watches was the nominating employer at the time of the visa application and therefore had to be the approved nominating employer at the time of decision. As Bunny Jewellery and Watches was not an approved nominator and the applicant did not (at time of decision) propose to be employed by that business clause 856.222 was not satisfied. The Tribunal noted that the applicant’s proposed second employer did not nominate him at the time of application and could not satisfy clause 856.222 (CB 73.4).

6. I cannot see any error in the Tribunal’s understanding of the relevant regulations nor in its application to the circumstances before it. The situation regarding clause 856.222 is simply that the employer in relation to the job nomination, put forward as at the time of the application for the visa, must also be the approved nominating employer relating to that job at the time of the making of the decision in relation to the visa. The Tribunal’s finding as to the affect of this clause, in my view, is correct. The applicant himself provided information to the Tribunal by way of letter of 18 May 2004 (CB 59) that the nominating employer at the time of application, namely Bunny Jewellery and Watches, had not been approved as a nominating sponsor and that he was not seeking that Bunny Jewellery and Watches would be the proposed employer. The effect of this is that Bunny Jewellery and Watches could not be the approved nominating employer at the time of decision, and given the effect of 856.222 no other sponsor could fulfil this requirement. In the circumstances of this application, I agree with the respondent’s submissions in this regard. Therefore, on that basis, the application to the Court now is futile and must fail. Even if the applicant could establish some error in some other aspect of the Tribunal's decision it is inevitable that the applicant could not satisfy this necessary criterion for the grant of the visa applied for. The applicant does not address this issue. Nor, other than conceding the point, did Mr. Knaggs on his behalf.

7. The sole complaint now brought forward by the applicant by way of the application and pressed by Mr. Knaggs, is that the Tribunal committed error in that the applicant did not receive the letter from the Tribunal inviting him to the hearing before the Tribunal, and that this was done in circumstances where the applicant had notified the Tribunal of the change of his address (by letter of a June 2004- CB 60). The applicant further claims that this error was admitted by the Tribunal in its subsequent letter of 22 April 2005 to the applicant (CB 78 to CB 79). However, in the circumstances of the case before me, this complaint must fail for two reasons.

8. The first is as I have already set out above, that the applicant, in his application to the Tribunal, had clearly nominated an agent/representative to act on his behalf, and who was also the nominated “authorised recipient” of all correspondence in relation to his application. The applicant confirmed that all documents in relation to his case were to be sent to the address of his authorised recipient and agent/representative. I have already noted that the Tribunal's notice (in the application form) to the applicant is that if he were to authorise a recipient to receive correspondence on his behalf, then pursuant to s.379G(2) of the Act any correspondence given to the agent/representative by the Tribunal would be taken to have been given to the applicant. Further, the Tribunal had notified the applicant that all correspondence would be sent to that person, at the address provided for that person, which in the circumstances of the case before me the applicant additionally confirmed originally as his own mailing address (CB 56). In these circumstances, the applicant could only have an expectation, at best, that he would receive copies only of the correspondence. While the applicant's letter of 9 June 2004 to the Tribunal (CB 60), (which was written to the Tribunal for the purpose of confirming that a new sponsor had lodged an application with the first respondent's Department pursuant to the “Employer Nomination Scheme”), shows a different address for the applicant, it makes no mention of any change in the circumstances of his representation previously advised to the Tribunal, that is, that the applicant wanted all correspondence sent to his authorised recipient. Nor does it make any reference to any change in the status or address of that authorised recipient or agent/representative. The Tribunal's letter of 12 August 2004 (the invitation to a hearing letter) was sent to the address as provided for by the applicant, that is, to the address of his authorised recipient. In these circumstances the applicant was clearly on notice that all correspondence would be sent to that address, and to the authorised recipient, and pursuant to s.379G(2) that all correspondence given to the authorised recipient by the Tribunal would be taken to have been given to the applicant. Section 379G of the Act provides that once a person who applies for review gives the Tribunal written notice of the name and address of another person authorised by the applicant to do things on behalf of the applicant, and that this includes receiving documents in connection with the review, the Tribunal must give this authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Section 379G(2) of the Act, as the Tribunal noted to the applicant in the application form, provides that if the Tribunal gives a document to the authorised recipient the Tribunal is taken to have given the document to the applicant. That subsection further provides that this does not prevent the Tribunal giving the applicant a copy of the document.

9. Critically, the Tribunal complied with its statutory requirement, given that the applicant had nominated an authorised recipient, and sent the letter, as it had to have sent the letter, to the authorised recipient. There is nothing in the material before me, nor does the applicant assert, that he personally advised the Tribunal of any change in relation to his authorised recipient. In this regard the letter from Mr. Kim (the “family friend”) dated 10 April 2005 and sent to the Tribunal (after it had made its decision) as an enclosure to the applicant’s letter of 10 April 2005, also does no assert that Mr. Kim (the “family friend”) made any reference to a change in the status of the applicant’s agent/representative on the occasions when he says he contacted the Tribunal. While Mr. Kim (the “family friend”) claimed (on 10 April 2005) that the applicant “was not represented by any agent” “by early June 2004”, he only claimed to have told the Tribunal of the “development” (that a “new application had been lodged to the Department”) and that “Mr. Kim” (the applicant) had moved. There is nothing to assert any notification to the Tribunal that the applicant’s agent/representative and authorised recipient for correspondence was no longer acting for him and no longer authorised to receive correspondence. Any error by the Tribunal in recording, or noticing the change in residential address of the applicant, (given that the letter at CB 60 was not even sent for the purposes of advising a change of residential address) does not affect the situation that there was no attempt by the applicant to notify the Tribunal that his authorised recipient was no longer acting for him. In fact, it appears from the material before me that the Tribunal was only advised of this after its decision had been made and handed down. Nor is the mere statement of the address below the applicant's name in his letter of 9 June 2004 sufficient to infer that the applicant no longer employed the services of his authorised recipient. The letter makes absolutely no mention of any change in the status of the authorised recipient and does not even make any mention of any requirement that further communication should be directed to the applicant at his new residential address. The applicant’s letter is totally silent in this regard. Further, Mr. Kim’s (the “family friend”) account of his telephone communication with the Tribunal (noting that there is no detail of whom he spoke to at what time or date etc) but even on its face, makes no mention of any advice of any change in the situation as to where correspondence should be sent. Even if the Tribunal’s officers did fail to record the change in the residential address, the best that Mr. Kim (the “family friend”) claims is:

   “… specifically notified the Tribunal that Mr. Kim had moved, and proceeded to give his new address.”

   This does not amount to any advice as to a change as to where correspondence should be sent, let alone a change in the status of the agent/representative. Further, given that the applicant had written to the Tribunal on at least two occasions, and claims that a friend also rang on his behalf, the failure to notify the Tribunal of the change in the status of his agent/representative remains, in these circumstances, unexplained.

10. It was open to the Tribunal in the circumstances, and indeed appropriate in the absence of anything contrary by the applicant, to continue to deal with the authorised recipient, who as far as the Tribunal was aware, remained the appropriate person to whom correspondence should be sent. Any error on the part of the Tribunal in relation to the sending of any copies of correspondence does not affect the situation that the Tribunal complied with the statutory requirement, of which the applicant was on notice, that all correspondence must be sent to authorised recipient, and that anything sent to the authorised recipient would be taken to have been received by the applicant. The applicant's correspondence of 9 June 2004 (CB 60), and the mere setting out of another residential address, does not affect this situation. Nor does the claimed involvement by Mr. Kim (the “family friend”) assist the applicant now in this regard.

11. But notwithstanding the above and as I have said, even if the applicant could show some error on the part of the Tribunal in this regard, ultimately the application before the Tribunal must fail because the applicant, as he himself had notified the Tribunal, did not have, at the time of decision, an approved nomination from Bunny Jewellery and Watches, the employer put forward with the proposed “appointment” at the time of application. He was unable to show that the sponsor at the time of application was an approved sponsor for the purposes of the nomination for employment at the time of the Tribunal's decision. Further the situation is that his letters of 18 May 2004 and 9 June 2004 made it clear that he was pursuing another nominator. I agree with the respondent’s submission that the application to the Court is therefore futile and must fail. No reasonable cause of action has been, or can be made out, and it would be futile for the matter to be allowed to go on to a substantive hearing. I dismiss the application on this basis and in the circumstances do not find it necessary therefore to consider the Notice of Objection to Competency. The application is dismissed.

12. I should also note that when Mr. Knaggs first appeared before me on 18 November 2005, I expressed my serious concern at his failure to honour an undertaking that he had given to a Registrar of this Court that he would file a Notice of Appearance. I have already discussed this matter above but note that at the conclusion of the hearing on 25 November 2005 I indicated to Mr. Knaggs that I was not proposing to take this particular matter any further.

13. Ms. Alex for the first respondent made an application for costs and in this regard, given the way the litigation had proceeded, sought that the applicant pay a component of the costs, and that the remainder of the costs be borne by the applicant’s solicitor Mr. Knaggs. Ms. Alex tendered two affidavits in support of this application. The first was sworn by her on 24 November 2005, and the second by Emilia Ramos, an employee of the respondent’s solicitors, affirmed on 24 November 2005. Leave was granted for both affidavits to be read into evidence. In essence, these affidavits provided evidence of three attempts at communication with Mr. Knaggs and reports of two actual communications in the week between the two hearing dates of the respondent’s Notice of Motion. The affidavits assert that Mr. Knaggs had indicated on 18 November 2005 that the applicant may withdraw from this matter and indicated that he would contact the respondent’s solicitors as to progress in this regard. No such attempt appear have been made. In any event I was not satisfied that a costs order should be made personally against Mr. Knaggs. Mr. Knaggs asserted from the Bar table, and I note that he is an officer of the Court, that there had been considerable difficulty in obtaining instructions from his client. In the absence of anything to the contrary I accept this explanation. In relation to the need for the second hearing date, I am of the view that this flowed out of the same issue (that is the difficulty in contacting the client or more accurately what appeared to be the client’s preference for dealing with a former migration agent rather than his solicitor). In all the circumstances I do not believe it appropriate to make a costs order against Mr. Knaggs. Nonetheless, costs follow the event and I can see no reason to depart from this in the circumstances of this case. A costs order against the applicant is appropriate in the circumstances. Given the amount of work that has been done $3200 is a reasonable and appropriate amount in this regard, and I will make the order accordingly.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date: 9 February 2006