Kumar v Minister for Immigration
[2005] FMCA 865
•30 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KUMAR & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 865 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a Temporary Business Entry (Class UC) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), subclause 457.22
Migration Act 1958 (Cth), ss.65, 341, 357A, 359A, 422B, 474, Part 5 Division 5
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
SRFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 252
VEAJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 291
Huo v Minister for Immigration & Multicultural Affairs [2002] FCA 617
| Applicants: | JATINDER KUMAR SHASHI BALA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3289 of 2004 |
| Delivered on: | 30 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 June 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The primary applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Mr B Cramer of Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3289 of 2004
| JATINDER KUMAR & SHASHI BALA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the New South Wales District Registry of the Federal Court of Australia on 1 September 2004 for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 6 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 31 July 2002 to refuse to grant the applicant a Temporary Business Entry (Class UC) visa. On 29 September 2004 His Honour Madgwick J transferred the matter to the Federal Magistrates Court.
Background
Mr Jatinder Kumar (the primary visa applicant), a national of India, born on 15 April 1973, together with his wife, Shashi Bala, lodged an application for a Temporary Business Entry (Class UC) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) on 20 June 2002 under the Migration Act 1958 (Cth) (“the Act”) (Court Book pp.1-31) (“CB”). On 31 July 2002 the delegate’s refused to grant the visa (CB pp.33-38) and on 22 August 2002 the applicants lodged an application with the Tribunal for a review of the delegate’s decision (CB pp.39-44).
The visa application was made on the basis that the primary applicant would be employed as a cook by an Australian business known as Durbanna Holdings Pty Limited (“Durbanna”). According to the Department records, the sponsorship application was refused on
31 July 2002. The delegate stated that the visa was not granted on the basis that the proposed employer had not been approved as a business sponsor (CB p.36). The application for approval as a business sponsor made by Durbanna was refused by a delegate of the Department and that decision was the subject of a separate review by the Tribunal. However, Durbanna withdrew its application before the scheduled Tribunal hearing (CB p.78).
The primary applicant subsequently attended the hearing before the Tribunal and sought additional time to have considered an application by Hugo’s at Pymble Pty Limited (“Hugo’s”) which was proposing to employ him as a chef. An extension of time was granted. The application by Hugo’s for approval as a business sponsor was refused by the Department. The primary applicant was advised of the refusal and its relevance upon his visa application in that the primary applicant could not satisfy the visa criteria as a proposed employee of an Australian business sponsor unless his proposed employer had been approved as a business sponsor (CB p.67).
The Tribunal’s findings and reasons
On 25 July 2003 the Tribunal sent the primary applicant a letter in accordance with s.359A of the Act, inviting him to comment on information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The information related to the refusal of a sponsorship application of the primary applicant’s business sponsor (Durbanna) and further notified the applicants that Durbanna had, on 23 July 2003, informed the Tribunal that it wished to withdraw its application to the Tribunal for a review of the Department’s decision to refuse its sponsorship application
(CB pp.53-54). The primary applicant did not reply to that invitation to comment.
On 12 November 2003 the primary applicant attended a Tribunal hearing and sought additional time to have considered an application by Hugo’s as a business sponsor. The Tribunal allowed approximately six months for the application of Hugo’s to be dealt with by the Department. The application of Hugo’s was refused by a delegate and the refusal decision was affirmed by the Tribunal on 24 April 2004 (CB p.77.6).
On 11 May 2004 the Tribunal sent a further letter under s.359A to the primary applicant inviting him to comment on information which the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision (CB p.67). The information related to the refusal of the sponsorship application of Hugo’s and notified the applicants that the Tribunal had affirmed the refusal decision. The Tribunal, therefore, noted that it was unable to find that the primary applicant satisfied the requirements of paragraph 457.223(4)(a) of the Migration Regulations 1994 (Cth) (“the Regulations”) (CB pp.65-66).
By letter dated 8 June 2004 the applicants’ representative wrote to the Tribunal seeking an extension of 28 days in which to respond to the Tribunal’s letter of 11 May 2004 (CB p.69). The extension of time was sought on the basis that the primary applicant was in the process of negotiating with a new proposed employer and there was an intention to lodge an application for approval as a business sponsor as soon as possible (CB p.69). On 11 June 2004 the Tribunal refused the primary applicant’s request for an extension of time and gave the primary applicant until 18 June 2004 to provide any further information (CB p.71). The primary applicant did not provide any further information in support of his review application to the Tribunal.
A necessary criterion for a Subclass 457 visa on the basis of a sponsorship by a business operating in Australia is that the proposed employer is approved as a pre-qualified business sponsor or as a standard business sponsor (paragraph 457.223(4) of the Regulations).
The Tribunal found that there was no proposed employer of either visa applicant which had been approved as a business sponsor as required by subclause 457.223(4). Neither was the Tribunal satisfied that either applicant met the alternate prescribed criteria set out in clauses 457.223(2), (3), (5), (7), (7a), (8) or (9). Accordingly, the Tribunal found the applicants did not meet criteria for either subclass 456 or 457 visas.
Application for review of the Tribunal’s decision
On 1 September 2004 the primary applicant filed in the Federal Court of Australia an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.The decision involved an error of law being either an incorrect interpretation of the applicable Law and/or an incorrect application of the law to the facts as found by the Migration Review Tribunal
Particulars
a)The MRT had not accorded procedural fairness to the Appellant.
b)The procedures that were required by law to be observed in connection with the making of the Decision were not observed by MRT.
c)The MRT decision did involve an error of law, whether or not the error appears on the record of the Decision.
d)Making of the MRT decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
e)The decision was otherwise contrary to law.
2.Procedures required by the Migration Act to be observed in connection with the making of the MRT decision were not observed.
The Law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s submissions
The primary applicant was a self represented litigant and appeared before the Court with the assistance of a Punjabi interpreter. The primary applicant confirmed that although he had attended a directions hearing before Registrar Hedge on 29 September 2004 and had agreed to a timetable for the filing of an amended application giving complete particulars of each ground of review being relied upon and the filing and serving of written submissions prior to the hearing, he had not complied with those orders.
At the hearing, the primary applicant indicated that he would rely on his original application and would make oral submissions in support. He then addressed the Court giving a brief summary of his stay in Australia, his current circumstances and the problems he was experiencing in attempting to locate a business sponsor. The primary applicant advised the Court that he was able to obtain employment but none of the prospective employers were able to provide business sponsorship to him.
Submissions
Mr B Cramer, Solicitor appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
Error of Law
a)The Tribunal did not make an error of law in coming to its decision in this matter. For the grant of a subclass 457 Business (Long Stay) visa, at the time of the grant of the visa, the primary applicant was required to meet the requirements of subclause 457.223(1), which in turn requires that the primary applicant meet the requirements of subclauses 457.223(2), (3), (4), (5), (7A), (8), (9) or (10). Subclause 457.223(4) at the time of the Tribunal’s decision required, relevantly that:
(a) the activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer; and
(b) the employer is:
(i) either:
(A)a pre-qualified business sponsor; or
(B)a standard business sponsor approved under regulation 1.20D as in force before, on or after 1 July 2003; and …
b)In the present case, on the evidence before the Tribunal, neither of the applicants had a pre-qualified business sponsor or a standard business sponsor. Therefore, the applicants did not satisfy subclause 457.223(4) and, in turn, did not satisfy subclause 457.223(1). The Tribunal could not therefore be satisfied that the applicants met the criteria for subclass 457 Business (Long Stay) visas and the only course open to the Tribunal was to refuse the grant of the visas and affirm the delegate’s decision.
Procedural Fairness
c)The Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) (“Procedural Fairness Act”) applies to the Tribunal’s decision as the applicants applied to the Tribunal on 22 August 2002, after the Procedural Fairness Act commenced (4 July 2002). Accordingly, s.357A of the Act applies to the decision and is an exhaustive statement of the natural justice hearing rule. Its equivalent provision, s.422B, has been held to be a “statutory enactment of the basic rules of natural justice” (SRFB v Minister for Immigration & Multicultural & Indigenous Affairs at 52; see also VEAJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at 305).
d)There was nothing to suggest and it was not claimed that Part 5 Division 5 of the Act was not complied with by the Tribunal. The respondent submitted that the Tribunal, having complied with the requirements of Part 5 Division 5 of the Act thereby satisfied the requirements of procedural fairness in this case. In any event, the Tribunal was under no obligation to postpone its decision-making, merely because the primary applicant sought a further adjournment because he wished to attempt to meet a statutory criterion found not as yet to have been fulfilled: Huo v Minister for Immigration & Multicultural Affairs (“Huo”) per Conti J at [31].
e)The primary applicant had been in Australia for approximately two years when the Tribunal made its decision, but had not been able to find a sponsor who satisfied the criteria in subclause 457.223(4). The Tribunal had already granted the primary applicant an adjournment to allow him to meet that criterion and he was not able to do so. Based on the Court’s decision in Huo, the Tribunal did not deny the applicants procedural fairness or make a jurisdictional error by refusing the primary applicant an adjournment and going on to make its decision, in circumstances when the applicants had sought a further adjournment to find a business sponsor.
Reasons
The primary applicant was seeking a Class UC Subclass 457 (Business (Long Stay)) visa. The ground on which he sought his visa was by sponsorship of a business operating in Australia other than in relation to a labour agreement or a regional headquarters agreement. The application was limited to this single ground and no other form of visa was sought. The essential criteria for a subclass 457 visa based on business sponsorship are that the business operates within Australia and is either a pre-qualified business sponsor or a standard business sponsor. The criteria to be met to qualify for a Business (Long Stay) visa contained in Schedule 2, Reg.457.22 of the Regulations is as follows:
457.22Criteria to be satisfied at time of decision
457.221If the applicant is in Australia at the time of application, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.
457.223(1) The applicant meets the requirements of subclause (2), (3), (4), (5), (7A), (8), (9) or (10).
Sponsorship — Australian business
(4) The applicant meets the requirements of this subclause if:
(a) the activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer; and
(b) the employer is:
(i) either:
(A)a pre-qualified business sponsor; or
(B)a standard business sponsor approved under regulation 1.20D as in force before, on or after 1 July 2003; …
On 10 February 2002 the primary applicant lodged his application with the Department for a Class UC Subclass 457 visa to commence on
26 June 2002 for a period of two years (CB p.4). In that application the Australian business nominated as the applicants’ sponsor was Durbanna. The visa application was accompanied by an application from Durbanna seeking approval as a business sponsor operating in Australia. That application by Durbanna was rejected by the Department. Consequently, at the time of the delegate’s decision on
31 July 2002 the applicants did not have a pre-qualified business sponsor or a standard business sponsor. The applicants, therefore, did not satisfy the requirements of subclause 457.223(4) and 457.233(1) of the Regulations. Under s.341 of the Act the delegate is bound by the Act and the Regulations to consider the application only in the terms of the criteria of a visa granted which is prescribed in the Regulations. The delegate is given the power to refuse a visa application under s.65 of the Act.
Although the Tribunal granted the applicant a period of grace to substitute the nominated sponsor this did not occur and the situation remained unchanged at the time of the Tribunal hearing and at the time of the hearing before this Court. I am satisfied that the Act and the Regulations in respect of this application have been correctly applied and the applicants’ ground of review claiming a jurisdictional error cannot be sustained. The suggestion that the Tribunal’s decision involved an error of law or an improper exercise of the power conferred on the delegate under the Act and that the final decision was contrary to law, has not been particularised or identified in any way to suggest where that error may lie.
The primary applicant in these proceedings was a self represented litigant which places an obligation on the Court to independently consider whether an arguable case based on the material before the Court could have been made out: Yo Han Chung v University of Sydney & Ors (“Yo Han Chung”). In the absence of any particularisation of suggested error, a fair reading of the decision does not disclose any error in the application of the Act or the Regulations.
The applicants’ other claim was a denial of natural fairness. Again this claim was not particularised or specified. I accepted the respondent’s submissions in respect to the operation of s.357A of the Act, which is an exhaustive statement of the natural justice hearing rule and is the relevant Part and Division of the Act to which the Tribunal must comply in its decision-making process. To comply with the requirements of Yo Han Chung, and in the absence of any particulars that identify the alleged denial of natural fairness, this Court must rely on a fair reading of the decision to identify any possible breach of this Division of the Act. None are immediately apparent. However, the Tribunal did decline the request to grant the primary applicant a further extension of time to enable him to locate an organisation that was willing to offer him a sponsorship and was qualified as a business sponsor within the Act and Regulations. The Tribunal was under no obligation to grant a further adjournment of the proceedings to enable the primary applicant to make these arrangements: Huo per Conti J at [31]:
“I am therefore of the opinion that the application for review of Mr Huo made to this Court must fail. The Tribunal was entitled in the exercise of its discretion to withhold from awaiting the Tribunal's decision on the JNZ application, assuming that the Act allows room for the application of conceivably relevant rules of natural justice additional to what the legislation already stipulates. As Senior Counsel for the Minister rightly contended, there was no error of law apparent or manifest in the conduct of the Tribunal below. It was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled. As Senior Counsel further pointed out, Mr Huo had been in Australia since 1997, and had had more than ample time to satisfy the regulatory criteria.”
During the hearing, in a response to a question from me, the primary applicant indicated that he had not been able to locate an employer who was in a position to be able to act as his sponsor. The primary applicant indicated he was able to locate a number of employers willing to employ him but none of those employers were in a position to be able to act as a sponsor. This was the position 23 months after the date of the delegate’s decision.
Conclusion
For the reasons set out above, I have been unable to identify any jurisdictional error in the Tribunal’s decision. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicants to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 30 June 2005
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