Lee v Minister for Immigration
[2006] FMCA 1395
•6 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1395 |
| MIGRATION – MRT decision refusing occupational trainee visa – Korean applicant – no evidence supporting nomination of occupational training – jurisdiction of Tribunal to consider approval of nomination – no jurisdictional error found – judicial review application dismissed for absence from hearing – application to reinstate – explanation not accepted – application refused. |
| Migration Act 1958 (Cth), ss.359(2), 359A(1), 359C(1), 360(2)(c), 360(3), 363A, 463A Federal Magistrates Court Rules, rr.13.03A(c), 16(1)(c) |
| Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375 |
| First applicant: | HEA RAN LEE |
| Second applicant: | JIN KYUM KIM |
| Third applicant: | JANG KYUM KIM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3439 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 6 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2006 |
REPRESENTATION
| Counsel for the Applicants: | The first applicant in person |
| Counsel for the First Respondent: | Ms E Palmer |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The applicants’ application under r.16.05(2)(a) to set aside orders made on 6 June 2006 is refused.
The first applicant must pay the first respondent’s costs in the sum of $1,250 in addition to the costs ordered on 6 June 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3439 of 2005
| HEA RAN LEE & ORS |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 21 August 2006, seeking an order under the Federal Magistrates Court r.16(1)(c) to set aside orders I made on
6 June 2006. On that day the applicant failed to appear at a listing in this Court room for a final hearing in the matter, which I had appointed at a directions hearing on 22 May 2006. I dismissed the substantive application under r.13.03A(c) on the ground of her absence from the hearing.
The substantive application had been filed on 23 November 2005.
It sought orders by way of a judicial review of a decision of the Migration Review Tribunal made on 17 October 2005, which affirmed a finding that the applicant and her children were not entitled to the grant of Transitional (Temporary) (Class UA) visas. The principal claim for that visa was that of the first applicant, and I shall refer to her as “the applicant”.
The applicants’ substantive application to the Court was made returnable by the Registry at a first Court date on 20 December 2005 in my courtroom at John Madison Tower. The applicant did attend on that day and was assisted by a Korean interpreter. The Court's records do not disclose any difficulties the applicant had in attending. Directions were made allowing her to file an amended application and affidavits, and a further directions hearing was appointed for 22 May 2006. Although I do not have a transcript, it is reasonable to assume that I informed the applicant, through the interpreter, in my usual manner that her case would be dismissed if she did not attend the further listing in this Court room.
The applicant did attend on 22 May 2006. Again, she was assisted by Korean interpreter. Written orders were given to her on that day.
I explained them to her. Order 1 said:
The application is listed for final hearing on 6 June 2006 at 2.15 pm at Court 6D, Level 6, John Maddison Tower, 88 Goulburn Street, Sydney.
I also told the applicant that if she did not attend her case would be dismissed on that occasion. The applicant conceded today that I did tell her that. However, she would have me believe that she went to the wrong place on that day.
In a document headed "Affidavit", which was filed in support of her present setting aside application, it is written in English:
I could not attend the hearing because I was misinformed of the place where I should have had a hearing.
I waited at the wrong place and missed the opportunity to appear at the court.
The applicant recognised her signature on that document, but it carries no certificate that it was translated to the applicant in Korean and she says she does not read English. It is, therefore, an improperly sworn affidavit. However, it was read to her today in the witness box and she claimed that the statements in it were true. She has not identified in any evidence how she says she was misinformed of the place where she should attend.
Under cross-examination, she gave a series of different explanations for her absence, claiming that she was misdirected by people and suggesting that she went to the Queen’s Square Court building. However, I do not believe her. I do not accept that she has shown a satisfactory explanation for not attending at the time and place which I had so clearly told her. For that reason I would refuse to set aside my previous order.
A further reason for refusing to set aside my previous order is that I think her substantive application is without any arguable merit.
Her application for a visa was lodged by an agent, Julia Choi, on
23 March 2004. The application sought a temporary visa, which is described as Subclass 442 - Occupational Trainee. Under the criteria for that visa, the visa applicant must establish that a nomination has been made in respect of occupational training to be provided to the visa applicant, and that that nomination is approved by a delegate.
See Sch.2 item 442.222 of the Migration Regulations.
In the present case, a nomination was lodged with the visa application, by a company DNI Global Proprietary Limited. It was signed by its managing director, Paul Won. In answer to the question requiring "objectives of proposed training and any additional or enhanced skills to be acquired by nominee", it said: "To obtain enhanced skills of marketing and franchising management overseas." No details of the proposed training were provided in any respect. The only supporting documents were some financial documents in relation to DNI Global Proprietary Limited, which showed that it was a company with minimal financial resources and a business which was obscure.
A delegate refused to approve the nomination on 30 April 2004, and on the same day the same delegate refused the visa application. Both of these decisions drew attention to the absence of any material suggesting that there were grounds for approving the nomination.
An application for review was lodged by the applicant on 1 June 2004. This did not appoint any agent or authorised recipient for correspondence. In support of the application for review, all it said was:
I think DNI Global Proprietary Limited demonstrated that it provided training courses to company employee for more than 3 months. All the current staffs and employees were already gone under the training plan which was overlooked by DIMIA.
By letter dated 5 August 2005 addressed to the applicant at her address for service, the Tribunal invited the applicant to comment on the absence of an approved nomination, and to provide evidence which would be relevant to approving the nomination. I am satisfied that that invitation complied with the requirements of the Migration Act 1958 (Cth) in relation to notices and invitations under s.359(2) and s.359A(1) of the Act.
No response was received, and the Tribunal proceeded to determine the matter without inviting the Tribunal to a hearing, as it was entitled to do under s.359C(1). No hearing could be held, by reason of the provisions of ss.359C(1), 360(2)(c), and (3), and 363A.
In its statement of reasons, the Tribunal referred to the relevant criterion in relation to approval of a nomination of occupational training. It also referred to Goldberg J's decision in Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375. This concerned a different class of visa now repealed, where his Honour considered that it was within the review jurisdiction of the Tribunal to consider whether there had been an approval of an employer nomination in the course of deciding whether the visa applicant satisfied criteria requiring such an approval.
The Tribunal, in the present case, considered that this authority was applicable to its jurisdiction when reviewing a decision as to satisfaction of the criterion in sch2 item 422.222. It therefore accepted that it should consider whether the occupational training nomination should be approved, before considering the applicant’s visa entitlement. In that respect, I think the Tribunal was correct, since on my consideration of the regulations there does not appear to be any separate power of decision-making vested in the Minister independently of the visa criterion.
The Tribunal concluded:
21. It is appropriate that the nomination be assessed against the relevant criterion for the visa sought contained at clause 442.223 which prescribes those matters going to the proposed training program. These provisions essentially indicate the basis for the occupational trainee category of entry, noting that the occupational training that is proposed should be workplace-based and give the applicant additional or enhanced skills they will be able to utilise in their employment after leaving Australia and will not adversely affect occupational opportunities available to Australian citizens or permanent residents of Australia.
22. In this matter, there is extremely limited information available about the proposed training program. The nomination included reference to a one year program in Sydney but provided no further material apart from evidence of the registration of the business and its financial details.
23. The application for review includes an extremely brief statement indicating that the review applicant believes the company has demonstrated that it provides training programs to its current staff. The Tribunal has sought additional information about what the proposed training will comprise of and how it will give additional or enhanced skills to the primary visa applicant. No further information has been forthcoming.
24. In the Tribunal’s view, it is now appropriate to make a determination in this matter without taking any further action to obtain comments or information. The Tribunal has taken appropriate steps to do so and this included quite explicit material about the information which was required.
25. The available evidence at this time leaves the Tribunal unsatisfied that the proposed training will be workplace based, nor that it will give the primary visa applicant additional or enhanced skills that she will be able to utilise in the applicant’s employment after leaving Australia. The available evidence is simply too scant to reach the required level of satisfaction about the details and nature of the proposed training or the way it may be of benefit to the primary visa applicant.
26. Given these conclusions, the Tribunal would not approve the proposed nomination in respect of occupational training made by DNI Global Pty Ltd.
I am unable to identify any arguable error in the Tribunal's consideration of that issue. The Tribunal's consequential decision that the primary visa applicant was unable to meet visa criterion requiring approval was, therefore, undoubtedly correct.
Notwithstanding the directions which I have referred to above, which allowed more than ample time for the applicant to take legal advice and to file an amended application showing a good argument, she has filed no documents showing any ground of jurisdictional error which is alleged to vitiate the Tribunal's decision.
Her original application to this Court makes only factual contentions that DNI Global Proprietary Limited "has sufficient training facilities" however, it is not the function of this Court to address that issue of fact. The applicant's submissions to me today were of the same nature.
Considering the whole matter I consider that the substantive application in this matter is without merit. I would therefore not be persuaded to set aside my previous dismissal of that application, even if a satisfactory explanation for the applicant's absence from the hearing were found.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 21 September 2006
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