Kumar v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1599

FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1599

GOPAL KRISHAN PARDEEP KUMAR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 427 OF 2003

MANSFIELD J
18 DECEMBER 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 427 OF 2003

BETWEEN:	GOPAL KRISHAN PARDEEP KUMAR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	18 DECEMBER 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. On 19 March 2003 the Migration Review Tribunal (the Tribunal) affirmed the decision of a delegate of the respondent that the applicant is not entitled to the grant of a Temporary Business Entry (Class UC) visa. It is a subclass of Class 457 Business (Long Stay) Visa (the visa) under Sch 2 to the Migration Regulations 1994 (Cth). As the Tribunal noted, the visa could be granted on a number of bases as there is a range of alternative criteria for the grant of the visa specified in cl 457 of Sch 2 to the Migration Regulations. The relevant criteria which the applicant claimed to meet are those specified in subcl 457.223(1) and (4). They relevantly provide:

   ‘(1)The applicant meets the requirements of subclause (2), (3), (4), (5), (7), (7A), (8) or (9).

   …

   (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)a pre-qualified business sponsor; or

   (ii)a standard business sponsor; and

   (c)the applicant is nominated, in accordance with approved

   form 1068, in relation to the activity by the employer;

   …’

2. The Tribunal found that the proposed employer was not a prequalified business sponsor or a standard business sponsor so as to satisfy subcl 457.223(4)(b).  It found that the proposed employer had made application for approval as a business sponsor under the Regulations but the application had been unsuccessful.  Consequently, the Tribunal found that the applicant's proposed employer had not been approved as a business sponsor.  The visa applicant, therefore, did not meet that criterion for the visa.  It affirmed the decision under review.

3. The applicant then applied to the Court for prerogative orders to set aside the Tribunal's decision for jurisdictional error.  The respondent has applied under O 20 r 2 of the Federal Court Rules that the application be dismissed as no reasonable cause of action is disclosed in the material before the Court.  That notice of motion has been listed for hearing today.

4. It is plain, as counsel for the applicant has contended, that summary judgment should only be given in the clearest of cases.  See generally Dey v Victorian Railways Commission A(1949) 78 CLR 62 at 91; General Steel Industries Ltd v Commissioner for Railways (1964) 112 CLR 125; Salemi v MacKellar (No.1) (1976) 137 CLR 388; Webster v Lampard (1993) 116 ALR 545.

5. Given the terms of the relevant clause of Sch 2 to the Migration Regulations, and the Tribunal’s uncontested findings, this would seem to be such a case. Counsel for the applicant contends it is not. He has presented a proposed amended application for review. It contains a series of assertions of jurisdictional error by the Tribunal, but in reality he identified only one issue. It is whether the Tribunal failed to accord the applicant procedural fairness in its decision-making process.

6. There is no dispute that the Tribunal was obliged to accord the applicant procedural fairness. Relevantly, it was required to provide him with an opportunity to be heard before making its decision. The obligation may arise at common law, or under s 360 of the Migration Act 1958 (Cth). It is accepted by the respondent that a failure on the part of the Tribunal to accord procedural fairness to the applicant may amount to jurisdictional error on its part: see Muin v Refugee Review Tribunal [2002] HCA 30, (2002) 190 ALR 601; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24.

7. It is claimed:

   ‘In this particular case, the Tribunal without hearing the Applicant, before makings its decision, made a decision affecting the interests of the Applicant.  Therefore the Tribunal breached the hearing rule of natural justice and did not accord the Applicant procedural fairness.’ 

8. In fact, the Tribunal proposed to conduct a hearing of the application for review on 27 February 2003.

9. The applicant, by his affidavit of 12 December 2003, asserts that he was aware of the proposed hearing before the Tribunal to take place on 27 February 2003.  He did not attend.  In those circumstances the Tribunal proceeded to make a decision on the basis of the material before it.  The applicant did not attend the hearing, not through any failure on the part of the Tribunal to accord him the opportunity to be heard.  As his affidavit shows, and I accept for the purposes of the present motion, the applicant did not attend the hearing because he requested his migration agent to attend the hearing and to request an adjournment of some weeks.  He expected his migration agent to do that.  His migration agent did not do that.  The proposed adjournment was to give the applicant further time to secure another business sponsor.  As the relevant criterion in cl 857.223(4) relates to the time of the Tribunal’s decision, an adjournment may have led to the applicant satisfying the criterion.

10. However, those circumstances do not give rise to an arguable case that the Tribunal itself failed to accord procedural fairness to the applicant.  As the material shows, it notified him of the hearing date and gave him the opportunity to attend.  He did not attend, either through some oversight on the part of his migration agent or through some misunderstanding between himself and his migration agent.  Whatever the reason, it is not indicative, even on an arguable basis, of a failure on the part of the Tribunal to accord procedural fairness to the applicant.  Consequently, even though a failure to accord procedural fairness by the Tribunal may demonstrate jurisdictional error on its part, there is no basis upon which I am satisfied that there is an arguable case of such a failure on the part of the Tribunal in this instance.

11. There is no other material which could demonstrate that the Tribunal's decision was arguably beyond its jurisdiction. It identified the correct criterion specified under the Migration Regulations. It applied that criterion. It did not misunderstand it. It did not misunderstand the evidence. There is no suggestion that there is any other finding which it might have made at the time.

12. In my view the application should be dismissed with costs.  I will do so on the respondent’s notice of motion of 24 October 2003.

13. The respondent seeks an order for costs also against the solicitor on the record for the applicant.  I will adjourn for further submissions the question of whether the applicant’s solicitor should also be ordered to pay the costs of the application.  I will give directions for the exchange of any material and submissions on that topic.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             19 January 2004

Counsel for the Applicant:	M W Clisby
Solicitor for the Applicant:	M W Clisby
Counsel for the Respondent:	K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 December 2003
Date of Judgment:	18 December 2003