Lee v Minister for Immigration

[2007] FMCA 1822

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1822

MIGRATION – Review of decision of MRT – where nominator not permitted review – where Tribunal conducts review of nomination decision pursuant to direction of Principal member – whether Tribunal failed to provide nominator with procedural fairness – who is entitled to review.

Migration Regulations 1994
Migration Act 1956, ss.359(2), 338(9)

Tvarkovski v Ministerfor Immigration [2001] FCA 375

Applicant: TONGGYU LEE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG2329 of 2006

Judgment of: Raphael FM

Hearing date: 24 October 2007

Date of last submission: 24 October 2007

Delivered at: Sydney

Delivered on: 24 October 2007

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $2,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2329 of 2006

TONGGYU LEE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The application before me seeks review of a decision of the Migration Review Tribunal signed on 23 June 2006 and handed down on 14 July 2006 affirming a decision of a delegate finding that the visa applicant was not entitled to the grant of an Educational (Temporary) Class TH visa.

2. The applicant sought that visa under Subclass 442 (Occupational Trainee). In order to be granted such a visa the applicant must satisfy the criteria set out in Part 442 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”). As the Tribunal notes:

   In particular, clause 442.221 specifies that where an application is made in Australia and where the primary visa applicant does not hold a subclass 442 visa at the time of decision, the primary visa applicant must satisfy the criteria in clause 442.222 to 442.229. 

3. Clause 442.222 requires that a nomination in respect of the occupational training has been lodged and has been approved by the Minister.

4. On 13 July 2005 the applicant submitted his application for the class 442 visa. He stated in his form [CB 1] that the nominating organisation was AIOKO Pty Ltd. I do not appear to have in the court book a copy of the application for this nomination but I am quite satisfied that one was made because at [CB 42] there is a letter written to a Mr Kim of that company informing him that his nomination for the training of the present applicant had not been approved.

   “The reasons for this decision are set out in the attached decision record. 

   To be approved, a nomination must be assessed as supporting your nominee’s ability to satisfy certain criteria prescribed for the grant of an Occupational Trainee (subclass 442) visa. 

   Review Rights

   The decision not to approve a nomination is reviewable only as a part of a merits review of the decision to refuse an occupational trainee visa application.” 

   The attached decision record is found at [CB 43/44]. It provides the legislative framework, including an extract from reg.442.223 in the following form:

   “The Minister is satisfied:

   (a) that the occupational training that is proposed:

   (i)  is workplace-based; and

   (ii) will give the applicant additional or enhanced skills that the applicant will be able to utilise in the applicant’s employment after leaving Australia; and

   (b) that occupational opportunities available to Australian citizens or permanent residents of Australia will not be adversely affected if the visa is granted.” 

5. The delegate assessed the application with the assistance of a copy of the certificate of registration of the company and a copy of the constitution of the company. The delegate stated he was unable to find any evidence to satisfy him that the occupational training that was proposed is workplace based and that it would give the applicant additional or enhanced skills that he would be able to utilise in his employment after leaving Australia. The delegate concluded that based on that information he was not satisfied that the nominator satisfied the requirements to support the grant of an occupational training visa as set out in the Regulations.

6. Given the refusal of the nomination it is not surprising that when the applicant’s case came to be considered by a delegate it was refused on the grounds that the nominator had been refused and that he had therefore not fulfilled the requirements of the Regulations by having an approved nominator.

7. When the applicant applied to the Tribunal for a merits review of the decision the Tribunal wrote to him on 24 March 2006 [CB 71]. The letter was what is known colloquially as a “s.359A letter”. It provided the applicant with information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The two pieces of information in respect of which the applicant was asked to comment were as follows:

   “On 15 July 2005, AIOKO Pty Ltd lodged a nomination for occupational training.  On 17 August 2005 AIOKO Pty Ltd’s nomination for occupation training was refused. 

   This information is relevant to the review because reg.442.222 requires that except in the case of an application made in relation to occupational training to be provided by the Commonwealth, a nomination in respect of occupational training has to have been lodged and approved by the Minister. A copy of the Regulations is attached to this letter.”

8. The Tribunal then went on to request certain information from the applicant pursuant to the provisions of s.359(2) of the Migration Act 1956 (the “Act”). The information it requested from him was:

   “You are also invited to provide information concerning the occupational training that is proposed to be offered to you by AIOKO Pty Ltd. 

   This information is relevant because reg.442.223 requires that the proposed occupational training is workplace based, will provide the applicant with additional and enhanced skills that the applicant will be able to use in their employment after they leave Australia and that occupational opportunities available to Australian citizens or permanent residents of Australia will not be adversely affected if the visa is granted.”

9. The applicant was asked to respond to that letter and on 1 May 2006 he sent a fax to the Tribunal [CB 75].

   “I am writing this letter to respond to your invitation to comment on  information.  In my opinion, AIOKO Pty Ltd is very actively operating in Australia and trains Australian people for their new business venture.  Moreover I was supposed to receive training without any wage payment or financial assistance from that company because I support myself with a training fund coming from overseas, so financial capacity of the company should not the matter[sic] by which my application was refused.  Please carefully consider my case and make a reasonable decision again on my case.  Thank you.”

   The applicant was then invited to a hearing by way of a letter dated 9 May 2006. He did not attend the hearing.

10. At paragraph 17 of the Tribunal’s decision [CB 89] the Tribunal deals with a practice that has received the approval of the Principal Member of dealing with applications such as this where approved nominations are required.

    “The Principal Member has, based on the Federal Court determination in Tvarkovski, recommended that the Tribunal review the refusal of such nominations as part of the review of the visa decision.  ... the principal member has recommended that the Tribunal generally consider all types of nomination refusal decisions MRT reviewable.  In the case of the visa refusal decision under review, it is the refusal to approve the nomination of the proposed occupational training that constitutes the issue in dispute.” 

11. The Tribunal then proceeded to quote from the policy document issued to members known as PAM3 before stating at paragraph 20:

    “19. “The Tribunal has had regard to material provided by the nominator.  The Tribunal is not satisfied, on the material provided, that the proposed occupational training is a training program as required under the policy.  There is no evidence before the Tribunal to demonstrate how the occupational training would enhance skills that the visa applicant can then use in employment after leaving Australia. 

    21. Given the findings made in the preceding paragraph, the Tribunal has no alternative but to find that the Department’s refusal to approve the nomination was the right decision.  The Tribunal finds that at the time of its decision the nomination application by AIOKO Pty Ltd had not been approved by the Minister.  As the primary visa applicant does not have an approved nominator he does not meet clause 442.222.  As clause 442.222 is not satisfied  the visa applicant is therefore not entitled to the grant of a Subclass 442 visa.”

12. This part of the Tribunal’s decision raises an interesting question. It purports to be a review of a decision which is non-reviewable. It cites as authority for that the seminal decision of Goldberg J in Tvarkovski v Ministerfor Immigration [2001] FCA 375. Although that decision was given in respect of a slightly different type of application the reasoning has been accepted by the Tribunal. The essence of his Honour’s reasoning is found at [30]:

    “It is an accepted principle of administrative law that the jurisdiction given to a body to review an administrative decision generally extends to a consideration of the decision maker’s findings or conclusions which contribute to the final or operative decision:  see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338 per Mason CJ. The application of this principle to the Tribunal’s decision means that the Tribunal was entitled to review, and should have reviewed, the whole process of decision making in relation to the applicant’s visa, which included that part of the decision making process which determined that the applicant had not been nominated in accordance with reg.5.19.”

13. At first blush it would appear that the Tribunal has conducted a review but has not provided the person most directly affected by that review with any form of procedural fairness by asking it to attend the hearing or provide a statement in support of its reasons for alleging the decision was incorrect. The reasoning for this situation is that the decision itself is non-reviewable except as part of the reviewable decision on the application made by the visa applicant himself. The Tribunal is thus forced to put to the visa applicant the sort of questions that would more properly be put to the nominator. The questions contained in the letter under s.359A and the request for information that I have already extracted are far more likely to be properly answered by the nominating company than by the applicant himself. The onus is placed upon the applicant to find out this information from a company with which he may have very close associations or may have none at all.

14. It is difficult to criticise the decision of the Principal Member to ask the members of the Tribunal to review these nomination decisions at the same time as the substantive application is being reviewed. That is only fair. If the applicant can establish that a delegate should properly have granted the nomination then, where the failure to have such a nomination is the sole reason for refusing the visa, the whole matter can be cleared up by the Tribunal approving the nomination and then granting the visa; both of which he would appear to be entitled to do under the terms of the Act as standing in the place of the Minister.

15. Although the situation that now pertains has these confusing characteristics I am unable to say that the Tribunal fell into jurisdictional error in the manner in which it came to its decision by not providing a hearing to the nominator. This is because the only person who has a right to a hearing is an applicant. Section 347 of the Act relevantly states:

    “347(2)  An application for review may only be made by:

    (a)     if the MRT reviewable decision is covered by 338(2), (3), (3A), (4) or (7A) -- the non-citizen who is the subject of that decision.” 

16. There is provision for nominators to provide to seek review but this is only in respect of decisions covered by s.338(9) and that subsection limits reviewable decisions to those defined as MRT reviewable decisions, which this nomination decision was not.

17. If the nominator has no independent right to a review, even though the Tribunal is reviewing the decision on the nomination, then I cannot see how the Tribunal can be required to provide him with a fair hearing, which is what one might expect and what the rest of the Act prescribes. Perhaps justification for this state of affairs can be found in the passage extracted at [4] of these reasons indicating the responsibility for satisfying the criteria is that of “your nominee”. Clearly this nominee did not bring the Tribunal to the require state of satisfaction by his response to the s.359A letter and did not attend the review hearing.

18. In the light of the reasoning above I am unable to say that the Tribunal fell into jurisdictional error in the manner in which it dealt with this review. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $2,750.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: