Lee & Ors v Minister for Immigration
[2007] FMCA 1917
•15 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1917 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a Business Long Stay (Class UC) (Subclass 457) visa – claim that the opportunity for a proper hearing was denied – claim of denial of natural justice and procedural fairness – no reviewable error – application dismissed. |
Migration Act 1958 (Cth), ss.357A, 359A, 360, 360A, 379A, 476
Federal Magistrates Court Rules2001 (Cth), r.44.12
Migration Regulations1994 (Cth), Schedule 1, item 1223A(3)(d)(i), Schedule 2, subclass 457.223
Minister for Immigration & Multicultural & Ingenious Affairs v Lay Lat [2006] FCA FC 61
Huang v Minister for Immigration & Anor [2006] FMCA 654
Kim v Minister for Immigration & Anor [2007] FMCA 166
SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCA FC 62
| Applicant: | CHANG YEOL LEE & ORS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 2609 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 15 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2007 |
REPRESENTATION
| Advocate for the applicants: | The first and second applicants appeared in person with the assistance of a Korean interpreter |
| Solicitors for the Respondents: | Ms M Palmer of Sparke Helmore |
ORDERS
The application filed on 23 August 2007 is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2609 of 2007
| CHANG YEOL LEE & ORS |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
This is an ex tempore judgment which has been edited and revised from the transcript. On 16 December 2005, the first applicant, Chang Yeol Lee (the visa applicant), a Korean citizen, applied to the Department of Immigration for a Business Long Stay (Class UC) (Subclass 457) visa nominating Shine World International Pty Ltd as his proposed business sponsor. Mr Lee’s wife and two sons, the second, third and fourth applicants, who are also Korean citizens, applied as members of his family unit. On the same date, Shine World International lodged an application with the Department for approval as a business sponsor. That application was refused on 4 March 2006.
The business visa application was then refused by the Department on 4 March 2006 on the basis that the visa applicant did not satisfy the requirements of any of subclass 457.223 of Schedule 2 of the Migration Regulations1994 (Cth) (“the Regulations”) as Shine World International, had been refused business sponsorship. The visa applicant did not satisfy the requirements for the grant of a Subclass 457 visa.
The visa applicant filed an application for review of the delegate’s decision with the Migration Review Tribunal (“the Tribunal”) on
31 March 2006. The Tribunal issued an “Invitation to Appear Before the Tribunal” on 28 February 2007 and the visa applicant subsequently appeared at the hearing on 26 March 2007.
On 24 April 2007, the Tribunal forwarded an “Invitation to Comment on Information” letter pursuant to s.359A of the Migration Act 1958 (Cth) (“the Act”) inviting the visa applicant to comment on the following information:
Information on this file discloses that a decision was made on 4 March 2006 to refuse an application by Shine World International Pty Ltd for approval as a business sponsor. On
18 April 2007, the Tribunal affirmed the Department’s decision not to approve Shine World International Pty Ltd as a business sponsor. (CB 41)
The Tribunal brought to the visa applicant’s attention that this information was relevant because without an approved business sponsor, the visa criteria could not be met. The visa applicant retained a migration agent who responded to the Tribunal’s s.359A letter indicating that the applicant intended to find a new business sponsor (CB 53).
A second “Invitation to Comment on Information” letter was forwarded to the visa applicant by the Tribunal on 22 June 2007. That letter set out the requirements of subclass 457.223(4)(b)(ii) and item 1223A(3)(d)(i) of Schedule 1 of the Regulations. The letter explained that even if the applicant found a new business sponsor who had been approved by the Department, that employer would not be the same employer who was nominated in the original visa application (CB 55-56). The applicant’s agent responded to the second letter on 16 July 2007 stating that the visa applicant had the letter explained to him but still wanted the Tribunal to consider his “difficult circumstances”.
The Tribunal handed down its decision on 1 August 2007 noting the applicant’s intention to find a new sponsoring employer but indicating that this action could not have assisted the applicants meet the visa criteria. A requirement of subclass 457.223(4)(b)(ii) is that the employer at the time of the decision must be “the employer mentioned in subparagraph 1223A(3)(d)(i)”. This item of Schedule 1 of the Regulations provides that the visa application must “specify the employer by whom the applicant proposes to be employed”.
Relevant legislation
Subclass 457.223(4)(b)(ii) of Schedule 2 of the Regulations states:
(4) Sponsorship – Australian business. 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; and
(ii) the employer mentioned in subparagraph
1223A(3)(d)(i).
Item 1223A(3)(d)(i) of Schedule 1 of the Regulations states:
(d)If an applicant seeks to satisfy the primary criteria for the grant of a Subclass 457 (Business (Long Stay)) visa on the basis that the applicant satisfies the requirements of subclause 457.223(4) of Schedule 2, the application must:
(i) specify the employer by whom the applicant proposes
to be employed for subclause 457.223(4).
Tribunal decision
The Tribunal decision, reference 0602903330, of S Durvasula signed on 19 July 2007 makes the following finding:
One necessary criterion of 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. The application for approval as a business sponsor made by Shine World International Pty Ltd was refused by a delegate and that decision was subject to a separate review by the Tribunal (MRT case number 060290918). On 18 April 2007, the Tribunal affirmed the delegate’s decision to refuse the application for approval as a business sponsor.
The primary visa applicant states that he intends to find a new business sponsor, but there is no evidence before the Tribunal
that he has an approved business sponsor at the time of decision. In any case, under the Regulations, the employer approved as a standard business sponsor must be the same employer nominated by the primary visa applicant at time of application (Items 1223A(3)(d)(i) of Schedule 1 and subparagraph 457.223(4)(b)(ii) of Schedule 2).
The Tribunal therefore finds that the primary visa applicant does not have an approved business sponsor as required by the relevant subclauses of clause 457.223. (CB 66-67)
Application for judicial review of the Tribunal Decision
On 23 August 2007, the applicants filed an application in this Court seeking an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Act in respect of the Tribunal decision on the grounds that:
1.The Tribunal has made a jurisdictional error by failing to give an opportunity for a proper hearing to present and explain my case fully and clearly.
2.I [was] denied natural justice and procedural fairness in not having a proper hearing to explain my circumstances and present evidence to the Tribunal.
The first respondent filed a response on 12 September 2007 stating:
1.The application for judicial review does not establish any jurisdictional error in the decision of the Migration Review Tribunal handed down on 1 August 2007.
2.The application for review does not raise an arguable case for review claimed pursuant to Part 44.12 of the Federal Magistrates Court Rules and accordingly the application should be dismissed.
After considering the application, response and the contents of the Court Book, being the only evidence filed in this matter, I set the matter down for a show cause hearing pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth).
Consideration
A review of the Court Book, and in particular the Tribunal decision, indicates that the applicants were given an opportunity to present oral arguments to the Tribunal. After the hearing, the Tribunal forwarded two “Invitation to Comment on Information” letters and, in the case of the first letter, an extension of time was granted for the applicants to retain a migration adviser and file a response.
There is no evidence before the Court to indicate that the following sections of the Act were not complied with:
(i)Section 360 – Tribunal must invite applicant to appear.
(ii)Section 360A – notice of invitation to appear.
(iii)Section 379A –Methods by which Tribunal gives documents to a person other than the Secretary.
At the first Court date, the applicants were given an information sheet which was translated by an interpreter. The information sheet contains the following information:
Hearing Tape – You can obtain from the Migration Review Tribunal a tape recording of the hearing in the Tribunal. If you do not have a copy, speak to the Minister’s solicitor who is in Court today. If it is intended to use the hearing tape as part of your application to the Court, a written transcript of the hearing should be obtained and certified by both parties to the proceedings.
There is no transcript of the Tribunal’s proceedings filed in this matter nor has there been any application to tender the hearing tapes. In the absence of such material, there is no evidence before the Court to suggest that the applicants were not provided with a fair hearing or not given an opportunity to present oral arguments.
The conduct of this hearing is subject to s.357A of the Act which states:
s. 357A – Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of
the requirements of the natural justice hearing rule in
relation to the matters it deals with.
(2) Sections 375, 375A and 376 and Division 8A, in so far as
they relate to this Division, are taken to be an exhaustive
statement of the requirements of the natural justice hearing
rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way
that is fair and just.
The effect of s.357A is to exclude the common law natural justice hearing rule, including any obligation on the Tribunal to put matters to the applicant at its hearing: SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCA FC 62; Minister for Immigration & Multicultural & Ingenious Affairs v Lay Lat [2006] FCA FC 61. There is no evidence before this Court to suggest that the provisions of the Act have not been complied with or that the Tribunal has acted in any way that was not fair and just.
At the time of the Tribunal’s decision, the absence of an approved business sponsor as required by subclass 457.223 of the Regulations meant that the Tribunal was correct to affirm the delegate’s decision: Huang v Minister for Immigration & Anor [2006] FMCA 654; Kim v Minister for Immigration & Anor [2007] FMCA 166.
I am satisfied that the grounds of review contained in this application cannot be sustained. Nor it is apparent from the material contained in the Court Book that the Tribunal made a jurisdictional error in its decision. In the circumstances, the application for judicial review does not raise an arguable case and is dismissed with costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 20 November 2007
0
1
0