Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201
MIGRATION - whether the Migration Review Tribunal denied applicant natural justice - whether the Migration Review Tribunal is obliged to invite applicant to a hearing ‑ extension of time to provide comment – appeal allowed
Migration Act 1958 (Cth) ss 353, 358, 359, 359(2), 359A, 359B, 359B(2), 359B(4), 359C, 359C(1), 359C(1)(b), 359C(2), 359C(2)(b), 360, 360(1), 360(2), 360(2)(c), 360(3), 363A, 379A(5) Judiciary Act 1903 (Cth) s 39B Acts Interpretation Act 1901 (Cth) s 15AA, s 33
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v JING SHAN SUN and MIGRATION REVIEW TRIBUNAL WAD 224 OF 2004
MARSHALL, MANSFIELD & SIOPIS JJ 14 SEPTEMBER 2005 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 224 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:
JING SHAN SUN FIRST RESPONDENT
MIGRATION REVIEW TRIBUNAL SECOND RESPONDENT
JUDGES:
MARSHALL, MANSFIELD & SIOPIS JJ
DATE OF ORDER:
14 SEPTEMBER 2005
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The Migration Review Tribunal be joined as a party to the appeal.
2.The appeal be allowed.
3.The orders of Federal Magistrate Walters made on 10 September 2004 be set aside.
4.The decision of the Migration Review Tribunal of 30 September 2003 be affirmed.
5.The first respondent pay the appellant’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 224 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:
JING SHAN SUN FIRST RESPONDENT
MIGRATION REVIEW TRIBUNAL SECOND RESPONDENT
JUDGES:
MARSHALL, MANSFIELD & SIOPIS JJ
DATE:
14 SEPTEMBER 2005
PLACE:
PERTH
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from a judgment of the Federal Magistrates Court published on 10 September 2004 pursuant to which the Federal Magistrate set aside the decision of the Migration Review Tribunal (‘the Tribunal’) which had affirmed the decision of the delegate of the appellant (‘the delegate’) that the first respondent is not entitled to the grant of an Employer Nomination (Residence) (Class BV) Visa (‘Employer Nomination Visa’). The Federal Magistrate granted relief on the grounds that the Tribunal had denied the first respondent natural justice in that it had, in breach of his entitlement under s 360 of the Migration Act 1958 (Cth) (‘the Act’), denied the first respondent an opportunity to attend a hearing of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading MIMIA v Sun
Sign in free to access the full text
Details
AGLC
Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201
Case
[2005] FCAFC 201
Decision Date
CaseChat Overview and Summary
The case of MIMIA v Sun involves a Chinese national who had entered Australia on a Tourist (Short Stay) Visa in May 1999 and subsequently applied for an Employer Nomination Visa. After his application was refused by a delegate of the appellant, the first respondent applied for a review of this decision by the Migration Review Tribunal. The Tribunal subsequently invited the first respondent to provide additional information and comment on certain matters within 28 days. However, the first respondent did not respond within the specified timeframe. The Tribunal then affirmed the delegate's decision to refuse the visa, stating that no response had been received from the first respondent. The first respondent argued that the Tribunal's failure to invite him to a hearing amounted to a breach of natural justice and an error in law that affected the Tribunal's jurisdiction. The key legal issue before the court was whether the Tribunal's failure to invite the first respondent to a hearing constituted a breach of natural justice.
The court considered the statutory framework governing the Tribunal's review process, including sections 359A, 359(2), and 360 of the Act. The court noted that while the Tribunal is required to invite the applicant to comment on information that may be the reason for affirming the decision under review, there is no requirement to invite the applicant to a hearing unless the applicant requests one or the Tribunal determines that a hearing is necessary. The court concluded that the Tribunal's failure to invite the first respondent to a hearing did not amount to a breach of natural justice, as the first respondent had not requested a hearing and the Tribunal was not obliged to invite him to one. The court found that the Tribunal had acted within its jurisdiction and that the first respondent's argument that the Tribunal's decision was an error in law was without merit.
The court allowed the appeal, set aside the orders of the Federal Magistrate, and affirmed the decision of the Migration Review Tribunal. The first respondent was ordered to pay the appellant's costs of the appeal. The court held that the Tribunal's decision to affirm the delegate's refusal of the visa was correct, as the first respondent had failed to provide the necessary information and comment on the matters raised by the Tribunal within the specified timeframe. The court found that the Tribunal had not breached natural justice or acted outside its jurisdiction in making its decision.
Orders
Orders of the court
1. The Migration Review Tribunal be joined as a party to the appeal.
2. The appeal be allowed.
3. The orders of Federal Magistrate Walters made on 10 September 2004 be set aside.
4. The decision of the Migration Review Tribunal of 30 September 2003 be affirmed.
5. The first respondent pay the appellant’s costs of the appeal.
Background
Background to the litigation
For the reasons, which follow, we are of the view that the appeal should be allowed.Background The first respondent is a national of the People’s Republic of China. He was born on 12 January 1964. He entered Australia in May 1999 on a Tourist (Short Stay) Visa. He was then granted a Temporary Business (Long Stay) Visa that expired in June 2000. On 15 June 2000 the first respondent lodged an application for an Employer Nomination Visa. Accompanying his visa application was an employer nomination application by a Chinese restaurant in Western Australia for the position of chef. On 12 March 2001 the appellant’s delegate refused to grant the first respondent a permanent visa. The delegate was not convinced that the mandatory criteria had been satisfied. In his reasons, the delegate stated ‘the applicant has made no claims to nor provided any evidence to support that he satisfies the mandatory requirements of the other subclasses within the Employer Sponsored Class’. On 23 March 2001 the Tribunal received an application lodged by the first respondent for a review of the delegate’s decision to refuse the Employer Nomination Visa. By a letter dated 2 April 2001, the Tribunal advised the first respondent that it had received his application. On 16 August 2001, the Tribunal informed the first respondent that his application for review had been transferred to the Tribunal’s Melbourne registry. The Tribunal sent a letter dated 10 July 2003 (‘the July letter’) to the migration agent representing the first respondent at the time. The July letter was headed ‘Invitation to Comment on Information and Invitation to provide Information’. In the letter the Tribunal referred to its obligations under s 359A of the Act and invited the first respondent to comment on information including an assessment that indicated that the first respondent was not ‘highly skilled’, and the fact that there was no evidence that he possessed ‘vocational English’. The July letter, also referred to the power of the Tribunal under s 359(2) of the Act to invite a person to give additional information, and invited the first respondent to provide additional information, including ‘evidence of recognition of trade qualifications’ as a chef with Trades Recognition Australia, and ‘evidence of having vocational English’. The July letter further stated:‘Your written comments should be provided within 28 calendar days of the date of notification of this invitation…the effect of this is that you have a total of 28 days from the date of this letter to respond. (original emphasis)If you are unable to provide comments within this period, you may request in writing that you be allowed additional time in which to respond. Such a request would need to include reasons for the extension and to be received before the end of the above period. The Tribunal will consider any request for an extension carefully, and advise you, in writing, whether an extension of time has been granted.If you make comments, the Tribunal will consider your comments carefully. If the Tribunal is still unable to make a decision in your favour it will then provide you with an opportunity to appear before the Tribunal. If the Tribunal does not receive any comments within the period allowed, it may, under section 359C of the Act, make a decision on the review without taking any further action to obtain your comment. In addition, you will not be entitled to appear before the Tribunal.’ (original emphasis)
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The first respondent’s migration agent did not provide any information or further documentation nor any comment by 10 September 2003, or at any time thereafter. The first respondent was not invited to a hearing before the Tribunal made its decision dated 30 September 2003.The Tribunal’s decision In its decision dated 30 September 2003, the Tribunal affirmed the decision of the delegate to refuse to grant an Employer Nomination Visa. The Tribunal referred to the July letter and its invitation for comment and information pursuant to s 359A and s 359 of the Act but stated ‘no response was received’. The Tribunal said that s 360(3) of the Act therefore applied to the first respondent and the Tribunal proceeded to determine the matter without inviting the first respondent to appear at a hearing. The Tribunal found that the first respondent failed to meet the criteria required for the visa. The first respondent sought a review of the Tribunal’s decision on the ground that the Tribunal did not accord the first respondent a hearing as it was required to do under s 360 of the Act, and, accordingly, the Tribunal did not accord the first respondent natural justice. The first respondent asserted that the breach of natural justice was an error in law, which went to the Tribunal’s jurisdiction.The Statutory Framework Sections 358, 359, 359A, 359B, 359C and 363A of the Act form the relevant statutory framework. Section 358 of the Act provides:‘(1) An applicant for review by the Tribunal may give the Tribunal:a)a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; andb)written arguments relating to the issues arising in relation to the decision under review.(2)The Secretary may give the Tribunal written argument relating to the issues arising in relation to the decision under review.’ Section 359 of the Act provides:‘(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.(2)Without limiting subsection (1), the Tribunal may invite a person to give additional information.(3)If an invitation is given to a person other than the Secretary, the invitation must be given:a)except where paragraph (b) applies—by one of the methods specified in section 379A; orb)if the invitation is given to a person in immigration detention‑by a method prescribed for the purposes of giving documents to such a person.(4)If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.’ Section 359A of the Act provides:‘(1) Subject to subsection (2), the Tribunal must:a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; andb)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; andc) invite the applicant to comment on it.(2) The information and invitation must be given to the applicant:a)except where paragraph (b) applies—by one of the methods specified in section 379A; orb)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.(3) …(4) This section does not apply to information:a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; orb)that the applicant gave for the purpose of the application; orc)that is non-disclosable information.’