Martinez v Minister for Immigration - [2008] FMCA 1514

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MARTINEZ v MINISTER FOR IMMIGRATION

[2008] FMCA 1514

MIGRATION – Application for skilled occupation visa – Alleged failure to consider response to s.57 letter – letter withdrawn – no response given – no failure to consider – not required to consider material unless the Act requires it.

Migration Act 1958 (Cth), ss.57, 58, 338, 474, 476
Migration Regulations 1994 (Cth), regs.136.2, 136.21, 136.210, 136.212, 136.213, 136.3

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Applicant:

FERDINAND MARTINEZ

Respondent:

MINISTER FOR IMMIGRATION &

CITIZENSHIP

File Number:

MLG459 of 2008

Judgment of:

Turner FM

Hearing date:

29 September 2008

Date of Last Submission:

29 September 2008

Delivered at:

Melbourne

Delivered on:

14 November 2008

REPRESENTATION

Solicitor for the Applicant:

Mr Hone

Solicitors for the Applicant:

Hymans Solicitors

Counsel for the Respondent:

Ms Burchell

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG459 of 2008

FERDINAND MARTINEZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(As Corrected)

The applicant filed an application with the respondent for a reg.136 Visa on 30 March 2006. He sought visas for himself, his wife and two children. A third child was added to the application by Notification of Changes in Circumstances filed on 31 October 2006 (Court Book 89).
The primary criteria for a Subclass 136 visa under the

Migration Act 1958
(Cth) (the “Act”) must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this Subclass need satisfy only the secondary criteria (Migration Regulations 1994 (Cth) reg.136.2).
The criteria to be satisfied at the time of application are set out in reg.136.21:
“136.210      The application must be made before 1 September 2007.
136.212      The applicant has nominated a skilled occupation in his or her application.
136.213      (1)   Subject to subclause (2), the applicant has been employed in a skilled occupation:
(a)     if 60 points are specified by an instrument in writing for this paragraph as available for the skilled occupation nominated in the application -- for a period of, or for periods totalling, at least 12 months in the period of 18 months immediately before the day on which the application was made; or
(b)     if 40 or 50 points are specified by an instrument in writing for this paragraph as available for the skilled occupation nominated in the application -- for a period of, or for periods totalling, at least 24 months in the period of 36 months immediately before the day on which the application was made.
(2)   Subclause (1) does not apply to an applicant if:
(a)     each of the following subparagraphs applies in relation to the applicant:
(i)   the applicant has, in the 6 months immediately before the day on which the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of a course of study of at least 2 years at that institution while the applicant was present in Australia;
(ii)   the degree, diploma or trade qualification is relevant to the skilled occupation nominated by the applicant in his or her application;
(iii)   all instruction for that degree, diploma or trade qualification was conducted in English; or
(b)     each of the following subparagraphs applies in relation to the applicant:
(i)   the applicant has, in the 6 months immediately before the day on which the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of a course of study of less than 2 years at that institution while the applicant was present in Australia;
(ii)   before completing that degree, diploma or trade qualification, the applicant completed at least 1 other degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by that institution, or another Australian educational institution, as a result of a course of study, while the applicant was present in Australia;
(iii)   the 2 or more degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) were completed as a result of 1 or more courses of study undertaken over a total of at least 2 years while the applicant was present in Australia;
(iv)   each of the degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) was completed at the institution at which it was commenced;
(v)   each of the degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) is relevant to the skilled occupation nominated by the applicant in his or her application;
(vi)   all instruction for each of the degrees, diplomas or trade qualifications mentioned in subparagraphs (i) and (ii) was conducted in English.”
The secondary criteria are set out in reg.136.3 and do not require consideration as the applications for members of the family unit depend on one member of the family unit satisfying the primary criteria. The applications for the members of the family are therefore dependant on an applicant satisfying the primary criteria. The Delegate found that they did not (Court Book 174.6). An error of law has not been established in relation to that finding.
Section 57 of the Act provides as follows:
“Certain information must be given to applicant
(1) In this section, relevant information means information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for refusing to grant a visa; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
(2) Subject to subsection (3), the Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.
(3) This section does not apply in relation to an application for a visa unless:
(a) the visa can be granted when the applicant is in the migration zone; and
(b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.”
Section 58 of the Act provides as follows:
“Invitation to give further information or comments
(1) If a person is:
(a) invited under section 56 to give additional information; or
(b) invited under section 57 to comment on information;
the invitation is to specify whether the additional information or the comments may be given:
(c) in writing; or
(d) at an interview between the applicant and an officer; or
(e) by telephone.
(2) Subject to subsection (4), if the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) Subject to subsection (5), if the invitation is to give information or comments at an interview, the interview is to take place:
(a) at a place specified in the invitation, being a prescribed place or if no place is prescribed, a reasonable place; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be made in the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:
(a) a later time within that period; or
(b) a time within that period as extended by the Minister for a prescribed further period;
and then the response is to be made at an interview at the new time.”
A letter was sent to the applicant on 27 November 2006 pursuant to s.57 (Court Book 150). The applicant filed an affidavit in response (Court Book 157). The material in response was considered by the Delegate before she made her decision (Court Book 173.8).
A further s.57 invitation was sent to the applicant on 7 April 2008 (Court Book 164), but on the same day the respondent sent an email to the applicant as follows (Court Book 167):
“I am the new case officer assessing this case and will be making a decision on this application. Please disregard the previous email I sent earlier today which does not apply. I overlooked the previous case officer’s note and record; providing you with a letter inviting you to comment on adverse information on behalf of your client. I have now noted that you have responded and provided information in response to the original letter, which requested a response from you by the due date of 25/12/06. I will now assess the case further and make a decision. If you have any questions please don’t hesitate to email me directly: [email protected].
I apologise for any confusion the previous email may have caused.”
The Delegate wrote to the applicant on 11 April 2008 advising him that the application for a visa for him and his family had been refused, and that there is no right of review in respect of a decision to refuse an application for a Class BN Subclass 136 Skilled–Independent visa (Court Book 170).
The decision of the Delegate is set out at (Court Book 171–175).
The applicant made an application to the Court pursuant to s.476 of the Act for review of the decision of the Delegate. The application sets out the following grounds and particulars:
“1. The decision was affected by jurisdictional error in that the person who made the decision failed to have regard to a relevant consideration.
PARTICULARS
The delegate who made the decision did not take into account the applicant’s occupation as a Cook with duties and responsibilities from employer at the time of his application in the determination of the application to migrate under sub class 136 visa nor did the delegate consider new and correct information on his Affidavit executed on 4 December 2005, forwarded on 5 December 2006 as described in folios 128-130 of the Department of Immigration and Citizenship- CLF2006/038590 relating to new contract of employment or job essentially as Cook with new owner consistent to section 105 of the Migration Act (1958) (‘the Act’).
2. Failure to accord procedural fairness
PARTICULARS
The delegate who made the decision wrote the principal applicant on 7 April 2008 seeking his comment to what was purported as incorrect information in his application, giving him until 5 May 2008 to provide his response, however prior to giving his explanation on various issues raised the delegate made a decision refusing his application on 11 April 2008.”

Finding of the Court as to the grounds in the application

Ground One: Failure to have regard to relevant information.
It is alleged that the Delegate “failed to take into account the applicant’s occupation as a Cook with duties and responsibilities from employer at the time of his application” (sic). Those matters were taken into account (Court Book 173.8). This contention is incorrect and is rejected.
After reviewing the evidence the Delegate decided that:
“As I am not satisfied based on the evidence available that the applicant was employed in a skilled occupation and performing duties of a COOK equivalent to the level of Australian Standards as per ASCO I have determined that the applicant therefore does not satisfy subclause 136.213(1).” (Court Book 174.2)
An applicant must establish their case (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]). This finding of non–satisfaction that the applicant was in a skilled occupation was properly open to the Delegate on the material before her and is not subject to review. The Delegate is entitled to accept, or reject or give weight to the evidence proffered as it thinks appropriate in all the circumstances (Lee post).
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.”
The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Delegate.

The challenge is no more than an invitation to review the merits.

The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43, the Full Court (at [12]) quoted a passage from the decision of Selway J at first instance, where his Honour had said:
“16 I have considered all of the matters put to me. The relevant principle is clear. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal is analysising the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court. The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
‘A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadscasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immgration and Multicultural Affairs 160 ALR] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal’.”
The Court agrees with the following statement by the Tribunal in another matter:
“However, the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion. It remains for the minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out. (Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596)”

“The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.”
“Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.”

As stated in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70: “It is no part of the duty of the decision–maker to make the applicant’s case for him [or her]”.
The Court agrees with the following submissions in another matter:
“The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.”
The facts necessary to enable the Delegate to establish the relevant fact of whether the applicant was employed in a skilled occupation were not supplied by the applicant. The Delegate stated:
“As I am not satisfied based on the evidence available that the applicant was employed in a skilled occupation and performing the duties of a Cook…I have determined that the applicant therefore does not satisfy sub clause 136.213(1).”
(Court Book 174.1)
That finding was properly open to the Delegate on the material before her and is not subject to review. The application failed therefore because of the failure by the applicant to establish his case.
Ground one continues that “the Delegate did not consider new and correct information on his affidavit sworn on 4 December 2005 (sic, “2006”) and forwarded 5 December 2006” (Court Book 157).
The first s.57 letter was sent to the applicant on 27 November 2006 (Court Book 150). Material in response (including the affidavit of

4 December 2006
) was sent to the Delegate on 5 December 2006 (Court Book 153). The Delegate stated that she had considered the evidence, which “also includes the response received by you (sic, “from you”) inviting you to comment on adverse information:
An employment duty Affidavit from the applicant” (Court Book 173.8). The Delegate therefore considered the affidavit of 4 December 2006 (Court Book 157).
Ground one is rejected.

Ground two
alleges a denial of natural justice because the Delegate wrote a second s.57 letter to the applicant on 7 April 2008

(Court Book 164) and reached her decision before considering the applicant’s response.
It is clear from the particulars of ground 2 of the application that the decision of the Delegate was made prior to (the applicant) giving his explanation on the various issues raised.
As stated above the second s.57 letter was withdrawn

(Court Book 157). In any event no response was made to it.

The Delegate therefore did not fail to consider material before her, and was not required to delay reaching her decision until a response was received to a letter that had been withdrawn.
Also the information at (Court Book 164) was not required to be put to the applicant for comment, as the applicant was offshore and therefore excluded by s.57(3).
Further, a s.57 letter is not required unless “this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa” (s.57(3)(b)).
Part 5, s.338 provides that a review is not available unless the visa could be granted while the applicant is in the migration zone (s.338(2)(a)), and the applicant made application while in the migration zone (s.338(2)(b)). A review is therefore not available to the applicant.
A s.57 letter was therefore not required to be sent to the applicant (s.57(3)). The question of whether it could be withdrawn once sent does not need to be answered. It is not a denial of natural justice to not consider a response to an invitation that was not required to be sent. The material in the response was not required to be obtained and was not provided. The material was not provided at all and the Delegate’s decision was not made before the cut off date of 5 May 2008 (Court Book 165.1), which was the date of the Delegate’s decision.
Ground two is rejected.
The Court finds that the decision is a privative clause decision that had not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly the application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Danielle Keogh

Date: 14 November 2008

CORRECTIONS

JUDGEMENT:

Paragraph 4 fifth line delete “Tribunal” replace “Delegate”.
Paragraph 14 fifth line delete “Tribunal” replace “Delegate”.
Paragraph 16 second line delete “Tribunal” replace “Delegate”.
Paragraph 28 sixth line delete “2008”.
Paragraph 28 seventh line insert “,”.