Lee v Minister for Immigration

[2007] FMCA 1802

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1802

MIGRATION – Review of Migration Review Tribunal decision – 457 visa refused – Tribunal’s discretion did not miscarry when it refused request for extension of time to respond to s.359A notice – Tribunal was not required to give reasons for refusing request for extension of time to respond to s.359A notice – Tribunal exceeded its jurisdiction by holding hearing but no denial of procedural fairness resulted.

Migration Act 1958, ss.348, 359A, 359C, 360, 360A, 362, 363, 363A, 474
Migration Regulations 1994, sch.1, cl.1223A, sch.2, cl.457

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
Sam v Minister for Immigration & Citizenship [2007] FMCA 1217
Fernandez v Minister for Immigration& Anor [2005] FMCA 960
M v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 333
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162

Applicant: LEE SANG BONG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1554 of 2007

Judgment of: Cameron FM

Hearing date: 10 October 2007

Date of Last Submission: 10 October 2007

Delivered at: Sydney

Delivered on: 30 October 2007

REPRESENTATION

Solicitors for the Applicant: Garry Seo & Associates

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1554 of 2007

LEE SANG BONG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 20 September 2005, the applicant lodged an application for a (Class UC) Temporary Business (Long Stay) visa (Subclass 457). This was refused by the Minister’s delegate on 2 March 2006. The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The criteria for the subclass 457 visa sought by the applicant are set out in pt.457 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant sought a visa on the basis of having been sponsored by an Australian business pursuant to cl.457.223(4) which relevantly provides:

   The applicant meets the requirements of this subclause if:

   (a)       …

   (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); …

2. Subparagraph 1223A(3)(d)(i) of sch.1 to the Regulations provides:

   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).

3. The facts alleged in support of the applicant’s claim for a Temporary Business (Long Stay) visa (Subclass 457) are set out on pages 4 – 5 of the Tribunal’s decision (Court Book (“CB”) pages 54 – 55). Relevantly, they are in summary:

   a)the applicant’s employer sponsor was KT Entertainment Pty Limited (“KT”). On 1 March 2006 the Minister’s delegate refused to grant KT approval as a standard business sponsor. KT applied for review of that decision but on 20 December 2006 the Tribunal affirmed the delegate’s decision not to approve KT as a standard approved business sponsor;

   b)on 10 January 2007 the Tribunal wrote to the applicant inviting his comments on KT’s failure to obtain approval as a standard business sponsor. On 16 February 2007 the applicant replied, saying that he was seeking a new sponsor and sought further time in which to do so;

   c)the Tribunal declined to grant the extension requested and advised the applicant of this on 20 February 2007; and

   d)the matter was listed for hearing before the Tribunal on 26 March 2007. The applicant attended that hearing.

The Tribunal’s decision and reasons

1. The Tribunal found that the applicant did not meet the visa criteria set out in cl.457.223(4) because the proposed employer nominated by the applicant, KT, had not been approved as a business sponsor.

2. The Tribunal considered other criteria which the applicant might have alternatively satisfied but found that he did not satisfy any of them.

3. Consequently, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa he sought.

Proceedings in this Court

1. The grounds of the application can be summarised as follows:

   a)the Tribunal’s discretion miscarried by not granting the applicant an extension of time within which to apply for a second sponsorship;

   b)the Tribunal’s discretion miscarried in that it did not invite the applicant to provide more detailed information in relation to the proposed sponsors;

   c)the Tribunal erred by proceeding to a hearing on the basis that it was unable to make a favourable decision based on the information before it, in circumstances where the applicant had sought to put further information before it; and

   d)the Tribunal should have given reasons for its refusal of the applicant’s request for an extension of time.

2. Dealing with each of these grounds in turn:

The Tribunal’s discretion miscarried by not granting the applicant an extension of time within which to apply for a second sponsorship

1. The particulars of the first asserted ground of review were that:

   a)on 16 February 2007 the applicant wrote to the Tribunal seeking further time to respond to the Tribunal’s s.359A letter;

   b)the basis of the request was that the applicant was seeking a new sponsor and he identified two potential sponsors, who would take a little further time to make their decision on his possible employment given the seniority and pay level of the positions he sought;

   c)on 20 February 2007 a Tribunal officer advised the applicant that the extension of time would not be granted; and

   d)by its letter dated 20 February 2007 the Tribunal made no specific comment on the reason why the Tribunal did not grant the requested extension but did say:

   The Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone.

2. This ground of review is misconceived. It confuses the applicant's request for an extension of time to reply to the s.359A notice with the Tribunal's invitation to the applicant to attend a hearing. It can also be noted that although in his letter of 16 February 2007 (CB 40) the applicant requested approximately two additional weeks in which to respond to the s.359A notice, in fact the hearing before the Tribunal did not take place until 26 March 2007. Consequently, although the applicant's request was, strictly speaking, refused, he nevertheless had more than the time he sought in which to put before the Tribunal the comments which the s.359A notice invited.

3. The Tribunal was under no obligation to permit the applicant further time to respond to the s.359A notice and given that the terms of the relevant regulations are intractable, such comments as the applicant might have made could not have affected how the Tribunal was required to apply those regulations. But in any event, no error in the exercising of the discretion has been demonstrated by the applicant.

4. To the extent that the applicant complains that the Tribunal's letter of 20 February 2007 made no specific comment concerning why the request for extension of time was refused, this submission misunderstands the nature of that letter, which was one intended to satisfy the requirements of ss.360 and 360A of the Act. It is a standard form letter and one which features in most proceedings in this Court where judicial review is sought of decisions of the Tribunal or the Refugee Review Tribunal. Its purpose was to invite the applicant to a hearing. As to its failure to also contain reasons for the decision not to extend time to answer the s.359A notice, no error is disclosed in this regard because there was no duty to give reasons for that decision, either at common law (Public Service Board (NSW) v Osmond (1986) 159 CLR 656) or under the statute.

The Tribunal’s discretion miscarried in that it did not invite the applicant to provide more detailed information in relation to the proposed sponsors

1. Once it was clear that the applicant's visa application was not supported by the standard business sponsor upon whom the applicant had been relying, this having become clear on 20 December 2006 when the Tribunal had affirmed the department's decision not to approve KT as a standard business sponsor, cl.475.223(4)(b)(ii) meant his application was bound to fail because a vital criterion was not satisfied. Neither of the two potential sponsors identified by the applicant in his letter to the Tribunal dated 16 February 2007 could have satisfied the relevant criterion for the grant of the subclass 457 visa which the applicant sought. In turn, this meant that no amount of additional information in relation to the proposed alternative sponsors could have affected the decision which the Tribunal ultimately made. The applicant has not demonstrated that the relevant discretion miscarried.

The Tribunal erred by proceeding to a hearing on the basis that it was unable to make a favourable decision based on the information before it, in circumstances where the applicant had sought to put further information before it

1. For the reasons expressed in relation to the previous ground, this ground, too, is not made out.

The Tribunal should have given reasons for its refusal of the applicant’s request for an extension of time

1. For the reasons given above at [15], this ground is also not made out.

Generally

1. At the hearing the applicant's solicitor emphasised as the Tribunal's error the fact that it had failed to give reasons for not allowing the extension of time sought by the applicant. He also submitted that, on occasions, the Tribunal does permit extensions of time in order that applicants may get their sponsorship arrangements in order. He queried what the point of the review in this case was given that its outcome appeared to be inevitable and he also queried why the Tribunal had not told the applicant prior to the Tribunal hearing that his application was hopeless as it had in Sam v Minister for Immigration & Citizenship [2007] FMCA 1217.

2. In relation to these matters raised by the applicant's solicitor, as has already been observed the Tribunal was under no obligation to provide reasons for its decision to decline the applicant's request for an extension of time to answer the s.359A notice. That the Tribunal, differently constituted, might take a different approach in different circumstances can have no bearing on whether jurisdictional error has been demonstrated in the circumstances of this case. As to the point of having the review at all, once the applicant had properly sought review, the Tribunal was obliged to conduct the review: s.348 of the Act. Lastly, once the applicant had lost his sponsor, under the Regulations as they stood at the relevant time, the application for review was bound to be unsuccessful: Sam's case;Fernandez v Minister for Immigration& Anor [2005] FMCA 960 and, in answer to the query why the Tribunal had not told the applicant that his claim was hopeless, as Emmett FM said in Sam's case at [35], there is no requirement that the Tribunal refer an applicant to the relevant statutory provisions.

3. No jurisdictional error on the part of the Tribunal has been demonstrated by the applicant in relation to these matters.

Did the Tribunal err in holding a hearing?

1. The Minister's submissions raised the issue of whether a jurisdictional error might be identified in the fact that the Tribunal had held a hearing at all. This arose in circumstances where the Tribunal was not obliged under s.360 to invite the applicant to a hearing because he had failed to respond to the s.359A notice. The interaction of ss.362 and 363 and 359C(2) have this effect. Significantly, s.363A provides:

   If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.

   Consequently, the Tribunal had no power to hold the hearing to which it invited the applicant: M v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 333 at 345-346 [46].

2. The Tribunal exceeded its jurisdiction by holding that hearing, but, in doing so, it did not deny the applicant procedural fairness. Indeed, this is a case where, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound to affirm the delegate’s decision. As a consequence, the applicant suffered no injustice by reason of the Tribunal's action in excess of jurisdiction when it gave him an opportunity to give evidence and put arguments as to why the decision of the delegate should not be affirmed. Consequently, notwithstanding that jurisdictional error has been demonstrated by reason that the Tribunal held a hearing when it had no power to do so, relief will nevertheless be refused in the exercise of the Court's discretion: Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162; M v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 333.

Conclusion

1. Although jurisdictional error on the part of the Tribunal has been demonstrated, relief will be refused in the exercise of the Court’s discretion.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date:  30 October 2007