Lee v Minister for Immigration - [2006] FMCA 1893

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1893

MIGRATION – Review of decision by Migration Review Tribunal – whether applicant’s nominator for occupational trainee visa should have been approved – whether Migration Review Tribunal should have made further enquiries of nominator.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.359; 360; 360A; 361; 362B; 474; pt.8 div.2
Migration Regulations 1994, rr.442.222; 442.223; sch.2

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32

First Applicant:

JUNG HWAN LEE

Second Applicant:

DAE HWAN LEE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG2178 of 2006

Judgment of:

Emmett FM

Hearing date:

12 December 2006

Date of last submission:

12 December 2006

Delivered at:

Sydney

Delivered on:

12 December 2006

REPRESENTATION

The First Applicant appearing on behalf of both Applicants

Counsel for the Respondent:

Ms R. Francois

Solicitors for the Respondent:

Ms Z. Brauer, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2178 of 2006

JUNG HWAN LEE

First Applicant

DAE HWAN LEE

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 6 June 2006 and handed down on 26 June 2006.
The first named applicant was born on 8 October 1985 and is from Korea (“the Applicant”). The second named applicant is the Applicant's brother and his application is dependent on the application of the Applicant.
On 21 April 2005, the Applicant lodged an application for an Educational Temporary (Class TH) Visa Sub-Class Occupational Trainee Visa 442 with the Department. In support of that application, a Nomination for Occupational Trainee form was completed by the Applicant's nominator in respect of details of the proposed training in Australia. The criteria to be satisfied at the time of the delegate's decision is set out in Sch.2 of the Migration Regulations 1994, relevantly, criterion 442.222 and 442.223 as follows:
“442.222 (1) Except in the case of an application made in relation to occupational training to be provided by the Commonwealth, a nomination in respect of the occupational training has been lodged and has been approved by the Minister.
(2) The reference in subclause (1) to occupational training to be provided by the Commonwealth includes occupational training to be provided by:
(a) a body corporate incorporated for a public purpose by an Act or regulations made under an Act; or
(b) an authority or body, not being a body corporate, established for a public purpose by, or under, an Act or regulations made under an Act.
442.223 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; and
(b) that occupational opportunities available to Australian citizens or permanent residents of Australia will not be adversely affected if the visa is granted.”
On 3 May 2005, a delegate of the first respondent (“the Delegate”) wrote to the Applicant's nominator requesting further information, including information about the nature and duration of the proposed training and provided particulars of the information required. Those particulars included a statement of the objectives of the proposed training and how it relates to the nominee’s occupation or area of expertise.
Material was provided by the nominator in response to that request. However, none of the material provided by the nominator addressed all of the information sought by the Delegate in its letter of 3 May 2005. In particular, no information was provided in relation to how the occupational training would give the Applicant additional or enhanced skills that the Applicant would be able to utilise in his employment. Nor was any information provided as to whether the occupational opportunities available to Australia citizens or permanent residents of Australia would be adversely affected if the visa was granted.
On 27 July 2005, the Delegate wrote to the Applicant informing him that his nomination for the occupational training of the nominator had been refused on the basis that the nominator had not been approved because the Delegate was not satisfied that the nomination met criterion 442.223(b).
The Delegate's decision had regard to criterion 442.222 of Sch.2 and noted that the nominator had not been duly approved. For those reasons, the Delegate refused the nomination for an Occupational Trainee Visa Sub-Class 422.
On 27 July 2005, the Department notified both the Applicant’s nominator of the refusal to approve the nomination and notified the Applicant that his application for an Educational Temporary (Class TH) Visa had been refused. The Department's refusal of the Applicant's application relied on the fact that, on 27 July 2005, the Applicant's nominator's nomination for occupational training had not been approved, that being a criteria required for the granting of the visa.
On 26 August 2005, the Applicant lodged an application for review of the decision of the Delegate with the Migration Review Tribunal.
On 8 February 2006, the Tribunal wrote to the Applicant inviting him to comment on adverse information and identifying that information as the Department's case file. The letter informed the Applicant that the information in the Department's file disclosed that a decision was made on 27 July 2005 not to approve the nomination for occupational training made by the Applicant's nominator.
The letter went on to inform the Applicant that this information is relevant to his review, because to be eligible for an Occupational Trainee Visa, the Applicant must have an approved nominator. The letter enclosed a Form 442 for the Applicant to complete in the course of inviting the Applicant to provide any additional information relevant to its review.
The Form 442 identified to the Applicant the nature of material that it was necessary for him to provide, including a statement by his nominator that the nominator continues the nomination and explains why occupational opportunities available to Australian residents will not be adversely affected if the nomination is approved. The Form 442 also identifies other information that may be relevant to the Applicant's application for review.
On 14 March 2006, the Applicant responded to that letter and completed the Form 442 with the following comment:
“I respond to your invitation to comment on the information that the sponsorship application was refused. But as far as I know, the nominating company has its own training facilities and internal programn (sic) for occupational training visa applicants. I think it has sufficient experience and training record which would prove that the company is eligible for providing an occupational trainee visa to people like me. Please review carefully the company’s nomination application and all the information submitted to DIMIA and make a more favourable decision for me. Thank you.
[signed]
[Applicant]”
On 21 March 2006, the Tribunal wrote to the Applicant at the address identified by him on his review application for correspondence inviting him to appear before the Tribunal to give evidence and present arguments. The letter identified the time, date and location of the hearing and informed the Applicant that if he failed to appear at the scheduled time, s.362B of the Act allowed the Tribunal to make a decision on the review without taking any further action to allow him to appear before it.
The Applicant did not attend the hearing before the Tribunal at the nominated time or place and the Tribunal, being satisfied that the Applicant had been sent a letter inviting him to attend the hearing in accordance with ss.360 and 360A of the Act, decided, pursuant to s.362B of the Act, to proceed to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it. The Applicant does not allege any error in the Tribunal's process in the exercise of its discretion under s.362B of the Act and none is apparent on the face of the decision record.
The Tribunal noted in its decision that it is the refusal to approve the nomination of the proposed occupational training that constituted the issue in dispute. In considering that issue, the Tribunal had regard to the requirements of criterion 422.222(1) that required 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 the occupational training has been lodged and has been approved by the Minister.”
The Tribunal noted that the nomination application lodged by the nominator was refused by the Department on 22 April 2005. The Tribunal however proceeded to review the nominator's application. It had regard to the Department's letter of 3 May 2005, when the Department wrote to the nominator seeking further information and it noted the nature of the material sent by the nominator in response. The Tribunal then identified in its decision the inadequacy in that material provided by the nominator to satisfy the relevant requirements identified in Sch.2 of the Migration Regulations 1994.
Because the Tribunal was not satisfied that the nominator had a supervised workplace base training program intended to add to or enhance the Applicant's skill level, that being a requirement of the grant of the visa sought by the Applicant, the Tribunal affirmed the Delegate's decision not to approve the nomination for occupational training made by the nominator. Because the nomination for occupational training made by the nominator was not approved, the Tribunal found that the Applicant did not meet criterion 442.222(1) and was therefore not entitled to the grant of a sub-class 442 visa.
The Tribunal noted that the second named applicant had no independent claims of meeting the prescribed criteria for the grant of a sub-class 442 visa and, accordingly, concluded that neither of the visa applicants is entitled to the grant of any of the visas contained in the sub-classes in the Educational Temporary (Class TH) Visa class. The Tribunal therefore affirmed the decision under review.
On 8 August 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal's decision, dated 26 June 2006. The application identified the following grounds:
“1. The Tribunal must have invited the nominator to make further inquiries in regard to my MRT application.
2. The nominator provided more information and document to satisfy the requirement but MRT stated the only material provide by the nominator was financial one.”
Ground 1 complains that the Tribunal should have made further enquiries of the nominator in regard to the Applicant's application for a visa. However, the Tribunal is not under a duty to obtain further material or make enquiries on behalf of an applicant, although, it may do so, in accordance with ss.361 and 359 of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 per Gleeson CJ at [1] and per Gummow and Hayne JJ at [43]).
Ground 2 alleges that the nominator provided more information and documents to the Tribunal. However, the ground does not contain any particulars of what those documents may be or how and when they were provided to the Tribunal.
The Applicant was unrepresented before me this morning, although had the assistance of an interpreter. The Applicant's grounds of his application were interpreted to him this morning and he was invited to make submissions in support of those grounds.
The Applicant submitted that the Tribunal should have notified his nominator of the outcome of its decision and that it was unfair if the Tribunal rejected his visa application because of information provided by the nominator. The Applicant stated that he confirmed that he believed he qualified for the visa. As referred to above in these Reasons, there is no duty by the Tribunal to seek further information from the nominator. However, whilst the Tribunal did not take any steps to seek any further information from the nominator, it did seek further information from the Applicant. The Tribunal drew the Applicant's attention, in particular, to further information by the nominator that would be relevant to his application. In the circumstances, the Applicant was presented with opportunities to provide to the Tribunal material in support of his visa application and the Tribunal had notified the Applicant of the difficulties with his application in relation to the failure by the Department to approve his nominator.
The decision of the Delegate made it clear that the failure to approve a nominator was because of inadequate information to address the relevant criteria and in those circumstances, neither of the complaints made by the Applicant in oral submissions this morning is capable of demonstrating any error on the part of the Tribunal. The Tribunal otherwise complied with its statutory obligations in giving to the Applicant information which would form part of the reason for affirming the decision under review, inviting the Applicant to comment upon it and explaining its relevance.
The Tribunal also complied with its statutory obligations in inviting the Applicant to appear at a hearing before it and properly exercised its discretion to proceed in the absence of the Applicant.
The findings and conclusions made by the Tribunal were open to it on the material before it and for which it gave reasons.
In the circumstances, the Tribunal's decision is not affected by jurisdictional error and is a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere and the proceeding, commenced by way of application filed on
8 August 2006 in this Court, is dismissed.

RECORDED : NOT TRANSCRIBED

The first respondent seeks costs fixed in an amount of $4200. I note that the amount is less than the amount provided under the Federal Magistrates Court Rules 2001.

ORDERS DELIVERED

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 19 December 2006