NADEZHKIN v Minister for Immigration

[2004] FMCA 434

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NADEZHKIN v MINISTER FOR IMMIGRATION [2004] FMCA 434

MIGRATION – Application to review decision of Migration Review Tribunal – whether lack of procedural fairness or failure to comply with Migration Act 1958 – no response to s.359 invitation.

Migration Act1958

Migration Regulations

Egbrime v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 1611
Haque v the Minister for Immigration and Multicultural Affairs (2001) FCA 1077

Applicant: OLEKSANDR NADEZHKIN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1041 of 2003

Delivered on: 25 June 2004

Delivered at: Sydney

Hearing date: 25 June 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr D. Jordan

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent's costs fixed in the amount of $2500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1041 of 2003

OLEKSANDR NADEZHKIN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) that was made on 14 May 2003, affirming a decision of a delegate of the respondent not to grant the applicant a Temporary Business Entry (Class UC) visa.  The applicant filed an application for such a visa on 26 July 2000.  The delegate refused to grant the visa on 13 February 2001.  The applicant sought review by the Tribunal on 12 March 2001. 

2. The class of visa for which he applied has two sub-classes: subclass 456 Business (Short Stay) and subclass 457, Business (Long Stay).  The application addressed the subclass 457.  The Tribunal in its reasons for decision considered both subclasses.  The visa application was put on the basis that the applicant would be sponsored by an Australian business.  The proposed sponsor operated under the name Rykono Translating, Interpreting and Migration Services.  A letter from Rykono, dated
   6 September 2000, indicated that it wished to employ the applicant as an administrative assistant.

3. A delegate of the respondent refused the application for approval as a business sponsor by Rykono on 13 February 2001.  The applicant's application for a visa was then also refused on the basis that Rykono had not been approved as a business sponsor.  In the application for review of his application for a visa made to the Tribunal the applicant identified a post office box operated by Rykono as the address for service of documents.  He also indicated that a named person in Rykono was to be his representative and included reference to a residential address.

4. The Tribunal wrote to the applicant on 19 March 2001 confirming receipt of the application for review and advising him that he should provide any documents or written arguments that he wished to be considered by the Tribunal. The letter was sent to the nominated address for service with a copy to the applicant's adviser. An information sheet was enclosed confirming that the applicant could provide further evidence or information. On 24 January 2003 the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 inviting him to provide further information.

5. The letter was sent to the nominated address for service. A copy was forwarded to the applicant's residential address. The nominated address for service is correctly recorded on the letter. The copy was sent to an address in a suburb spelt as M-a-r-r-e-k-v-i-l-l-e. The application to the Tribunal had spelt the suburb as M-a-r-r-e-k-v-i-l-e. The letter from the Tribunal of 24 January 2003 advised that the proposed business activity was not the subject of an approved business nomination by the employer and therefore it appeared that the applicant could not meet the requirements for the visa. It asked the applicant if he wished to continue with his application and invited him, if he did, to provide evidence that the activity in which he proposed to be employed had been approved under another nomination. The letter specified the time within which the invitation was to be responded to, that being 28 calendar days from the date of notification and stated that the applicant would be considered to be notified of the invitation seven working days after the date of the letter. The Tribunal advised the applicant that he was able to seek an extension of time, and that if he provided information and the Tribunal was still unable to make a decision in his favour it would provide him with an opportunity to appear before the Tribunal. Importantly, the Tribunal also notified the applicant in bold print at the conclusion of the letter that if the Tribunal did not receive the requested information within the period allowed, it may, under s.359C of the Act, make a decision on the review without taking any further action to obtain the information and that he would not be entitled to appear before the Tribunal.

6. Counsel for the respondent properly pointed out that the version of subclause 457.223(5), which is one of the applicable criteria, was quoted in terms as it stood at the time of the letter, and not as it stood at the time of the visa application.  However the operative part of that provision, requiring that an activity be the subject of an approved business nomination, was the same as had been in operation at the time of the visa application.

7. There is no suggestion that there was any response to the letter of

   
   

   24 April 2003.  The Tribunal reasons for decision indicate that no response was received.  The Tribunal made a decision on 14 May 2003 affirming the delegate's decision to refuse the applicant's visa application.  The Tribunal considered first subclass 456, indicating that it was not relevant to the applicant, because such a visa could not be granted to a visa applicant in Australia, and because the visa applicant was seeking a visa for longer than three months, which was the applicable criterion for subclass 456.

8. It then considered subclass 457 and indicated that the ground on which the application was made was sponsorship by a business operating in Australia.  No claims had been made in respect of the other grounds and the material before the Tribunal did not suggest that the visa applicant met any other grounds.  The application had been made on the basis that the applicant would be employed by Rykono.

9. The Tribunal considered the requirement of sponsorship by a proposed employer being a business operating in Australia which was a pre-qualified business sponsor or a standard business sponsor.  It noted that the application for approval of a business sponsorship had been refused by the delegate on 13 February 2001 and that such decision was followed by a Tribunal decision affirming the decision not to approve the employer as a business sponsor.

10. The Tribunal referred to the letter of 24 January 2003. It stated that no submission had been received by the Tribunal within the period allowed and that the Tribunal made its decision under s.359C. It found that the proposed employer had not been approved as a business sponsor under either subclause 457.223(4) or subclause 457.223(5), and that the visa applicant did not meet the criteria for a subclass 457 visa or for a subclass 456 visa. The Tribunal affirmed the decision under review.

11. The applicant applied to this Court for review of the decision on

    
    

    11 June 2003.  The application stated that the Tribunal refused the application on the ground that the applicant did not have approved sponsorship, because Rykono had not been approved as a business sponsor and, it was contended, because the visa applicant made no comment when lodging the application for review.  It was submitted that comments for the appeal of the Departmental decision were lodged, but because the case was moved from Sydney to Canberra information was lost. 

12. The applicant contended that the Tribunal erred in that it did not refer to any of the documents which had been provided by the sponsor, that it was possible that the Tribunal had such documents in the sponsor's file, and that if it did not have sufficient information then the Tribunal should have asked him to a hearing under s.360 of the Migration Act 1958. The applicant claimed that the case had been transferred to Canberra, but that evidence could have been received by telephone. Annexed to the applicant’s written submission were some documents which had been submitted in relation to the sponsor.

13. Dealing first with the matters raised in the applicant's application, it appears that there is a contention that comments were made by the applicant and not taken into account by the Tribunal.  In the course of oral submissions the applicant clarified that while he had not responded to the letter sent under s.359 of the Act, other information had been provided which should have been considered by the Tribunal.  It was submitted that the Tribunal erred in stating that the applicant made no comment.

14. The Tribunal reasons for decision do indicate that the visa applicant made no comment when lodging the application for review.  This may well be a reference to the absence of reasons for thinking the delegate’s decision was incorrect.  The applicant contends that material was provided to the Tribunal in relation to the review of the sponsorship decision about Rykono.  However the Tribunal decision in issue is the decision in relation to the visa application.

15. Insofar as the applicant contends that there was some material in relation to Rykono submitted by him to the Tribunal prior to the request, or on the same date as the request under s.359, that does not establish any jurisdictional error in the Tribunal decision or procedure.  While the Tribunal does not list specifically the documents to which the applicant refers, there is nothing in those documents which could have made any difference to the Tribunal decision because the material did not address the issue that was relevant for consideration by the Tribunal in considering the visa application (that is whether there was an approved business sponsor).  The tribunal was not in its review of the visa application, considering whether the sponsor should have been approved.  Such issues were resolved in a separate decision which is not the subject of the present application to this Court.  I am not persuaded that there was any failure to afford procedural fairness, or that there was any failure to comply with any Tribunal obligations in the Tribunal’s failure to refer specifically to information that was provided by the applicant to the Tribunal prior to the letter of 24 January 2003.  The applicant provided information about the sponsor but did not establish that there was either an approved business nomination or an approved sponsorship. 

16. The applicant also takes issue with his inability to provide evidence to the Court as to the sponsorship and the fact that the sponsor could, according to the applicant, meet the criteria for sponsorship approval.  However this is not a re-hearing.  It is not for the Court to determine whether the proposed sponsor could in fact meet the criteria for approval as a sponsor.  As indicated, this is not an application by Rykono for review of the Tribunal decision to affirm the decision of the delegate not to approve the business sponsorship.  The only decision that the Court can review in these proceedings is the decision to affirm the Tribunal decision not to grant the applicant a Class UC visa. 

17. There is no jurisdictional error, no failure to take into account relevant considerations, and no lack of procedural fairness in relation to the material that the applicant claimed he provided to the Tribunal, albeit that it is not referred to expressly in the Tribunal reasons for decision. The Tribunal is not required to refer to every item of evidence before it. Its obligations under the Migration Act are to make findings of fact on relevant material. In this case the material related to whether or not there was an approved business sponsor or business nomination. There is no evidence to show that the comments referred to in the applicant's affidavit could have had any effect at all on the outcome of the Tribunal decision. There is no evidence before the Court of any formal written approval of a pre-qualified sponsor or a standard business sponsor, as would be required to satisfy subclauses 457.223(4)(c) or 457.223(5)(c) of the Migration Regulations (see Regulations 1.20B and 1.20D of the Migration Regulations in relation to approval of a pre-qualified business sponsor and a standard business sponsor and the need for there to be an instrument in writing when there is such an approval and also see Regulation 1.20H in relation to approved business nomination).

18. The applicant contends that had he had the opportunity to do so he could have put further information before the Tribunal. I have considered whether the Tribunal erred either in failing to comply with any of the procedures under the Migration Act or with procedural fairness in the manner in which it proceeded. The Tribunal is obliged under s.360(1) of the Migration Act to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The respondent submits, however, that in the circumstances of this case the exception in subsection (2) is applicable. Section 360(2) provides that subsection (1) does not apply if section 359C(1) or (2) applies to the applicant. Section 360(3) provides that:

    If any of the paragraphs in subsection (2) of s360 apply, the applicant is not entitled to appear before the Tribunal.

    Consequently it is necessary to consider whether s.359C of the Migration Act applies. Section 359C(1) of the Act provides:

    If a person is invited under section 359 to give additional information, and does not give the information before the time for giving it is past, the Tribunal may make a decision on the review without taking any further action to obtain the additional information.

19. In this instance the Tribunal gave a notice to the applicant by letter of 24 January 2003 which purported to be an invitation under s.359 of the Act.  Section 359(1) provides:

    The Tribunal may get any information that it considers relevant.  If it does it must have regard to it, and it may invite a person to give additional information. 

20. Section 359(3) specifies the manner in which this is to be done and was satisfied.  The invitation was given by a letter sent by pre-paid post to the address for service provided by the applicant in the application for review. 

21. Section 359B provides that

    If a person is invited under s.359 to give additional information, the invitation is to specify the way in which the additional information or the comments may be given.

    The letter complied with s.359B.  It specified that the applicant was to provide the requested information in writing within 28 calendar days of the date of notification and specified the date of notification. 

22. In accordance with s.379A(4) the notification was sent by pre-paid post to the last address for service provided to the Tribunal by the applicant as well as to the residential address.  There was a minor spelling mistake in the suburb of the residential address for the applicant.  However, s.379A(4) provides alternatives.  There was compliance with s.379A(4)(c)(i) in correctly sending the letter to the last address for service.  As in Egbrime v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 1611, although there was a difficulty with one of the addresses to which the s.359 letter was sent, there was compliance by one of the alternative means. Notification was given to the applicant in accordance with s.379A. The time provided for in the letter also meets the requirements of Regulation 4.17 in particular subregulation 4.17(4) which provides for 28 days notice. Section 379C(4) of the Act deems the time of receipt by the applicant of the letter to be seven working days after the date of the document.

23. Taking all of this into account I am satisfied that the letter complied with the statutory requirements and that the time for the applicant to comply with the letter had elapsed before the Tribunal made its decision.  The Tribunal wrote to the applicant on 24 April 2003 advising that it had made a decision in his case and that the decision would be handed down on 14 May 2003.  There is nothing to suggest that there was any correspondence from the applicant to the Tribunal following that letter and prior to the handing down.  That letter was also sent to the two addresses, the address for service and the residential address.

24. As the Tribunal had sought information under s.359 in accordance with the requirements of the Migration Act and Regulations and had received no reply, s.359C came into operation. This empowered the Tribunal to make a decision on the review without taking any further action to obtain the applicant's view on the information (see Branson J in Haque v the Minister for Immigration and Multicultural Affairs (2001) FCA 1077 at [12] and [13]). Hence the Tribunal was relieved of the statutory obligation imposed by s.360(1) of the Act to invite the applicant to appear before it. Section s.360(2)(c) applied and pursuant to s.360(3) the applicant was not entitled to appear before the Tribunal. No failure to comply with procedural requirements has been established on the material before me. Nor is any lack of procedural fairness apparent.

25. For the sake of completeness, and bearing in mind that the applicant is self-represented, I mention two other issues that might be seen as arising on the material before me.  The first is that there is nothing in the material before me to suggest that there was any notification to the applicant under s.359A of the Act.  Instead the Tribunal sought further information under s.359.  The s.359A obligation arises in relation to particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.  Were it to be the case that there was an obligation on the Tribunal in the circumstances of this case to comply with s.359A (because of the absence of approval of a business nomination or a business sponsorship) then any failure to comply with such section should be regarded as no more than a technical failure and not a jurisdictional error.  Such a failure could have made no material difference.  The applicant was put on notice of the relevant difficulty in relation to the absence of an approved business nomination by the s.359 letter.  Furthermore the absence of an approved business nomination or standard business sponsorship was necessarily fatal to his application.  There was no discretion for the Tribunal if that particular criterion that was not met.  Furthermore, if I am wrong in this respect, this would be a case in which the discretion not to grant a remedy should appropriately be exercised.  Any such error could have made no difference to the result.  Moreover it cannot be said that there has been any lack of procedural fairness.  The Tribunal properly put the applicant on notice of the difficulty with his application. 

26. The reference to the form of paragraph 457.223(5)(b) in Schedule 2 to the Migration Regulations in force at the time of the s.359 letter, rather than at the time of the application does not give rise to a reviewable error.  The letter described the applicable criterion that the activity be the subject of an approved business nomination.  It properly notified the applicant that the business activity was not the subject of an approved business nomination, indicated the alternatives, and invited him to provide evidence that the activity had been approved under another nomination. 

1. In all of the circumstances of the case I am satisfied that the Tribunal had put the applicant on notice of the critical issues and that he had an opportunity to comment.  It was open to the Tribunal to proceed to make a decision without taking any further action to obtain the applicant's views. 

2. I repeat for the benefit of the applicant, that the question of whether the organisation which he proposed as his sponsor might in fact meet the criteria for sponsorship approval is not a matter that is before the Court for consideration.  The only issue before the Court is whether there is a jurisdictional error in the reasons or procedures of the Tribunal in relation to the decision to affirm the decision to refuse to grant the applicant the visa he sought.  No error is established.  Accordingly, the application must be dismissed.  I will hear submissions in relation to costs.

RECORDED   :   NOT TRANSCRIBED

1. The respondent seeks that the applicant pay costs in the sum of $2500.  Bearing in mind the nature of this and other similar matters I consider that that is an appropriate amount.  The applicant has been unsuccessful.  It is appropriate that he should meet the respondent's costs. 

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

Associate: 

Date:  12 August 2004