Nassif v Minister for Immigration
[2005] FMCA 1868
•16 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NASSIF v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1868 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a Temporary Business Entry (Class UC) visa – no jurisdictional error – application dismissed. |
Migration Legislation Amendment Act (No. 1) 1998 (Cth)
Migration Act 1958 (Cth), s.359A
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), Sch 2, sub-cls 457.223(4)(c), 457.223(5)(c)
McKenzie v McKenzie (1970) 3ALL ER 1034
R v Leicester City Justices; Ex parte Barrow & Anor (1991) 3 ALL ER 935
Smith v R (1987) 71 ALR 631
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
The King v The Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re Commonwealth; Ex parte Marks (2000) 177 ALR 491
| Applicant: | YOUSSEFF NASSIF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File No: | SYG 2781 of 2004 |
| Delivered on: | 16 December 2005 |
| Delivered at: | Sydney |
| Hearing date: | 11 November 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an Arabic Lebanese interpreter and a McKenzie friend.
| Counsel for the Respondent: | Mr D Jordan |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Migration Review Tribunal is joined as the second respondent.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2781 of 2004
| YOUSSEFF NASSIF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 8 September 2004 for a judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 11 September 2000, affirming the decision of the delegate of the respondent (“the delegate”) made on 29 May 1997 and reviewed on 20 October 1997 to refuse to grant the applicant a Temporary Business Entry (Class UC) subclass 457 (Business (Long Stay)) visa. The applicant seeks unstated relief against the decision of the Tribunal.
Background
On 11 September 1996 Yousseff Nassif (the applicant), a national of Lebanon born on 13 December 1966 applied for a Temporary Business Entry (Class UC) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-48) (“CB”). On 29 May 1997 the delegate refused to grant the visa (CB pp.49-51). The delegate’s decision was affirmed by a review officer on 20 October 1997 (CB pp.57-61). On 17 November 1997 the applicant lodged an application for a review of the delegate’s decision with the Immigration Review Tribunal (CB p.67). That application became an application for review to the Migration Review Tribunal on 1 June 1999 by way of a transitional provision of the Migration Legislation Amendment Act (No. 1) 1998 (Cth).
The applicant entered Australia on a visitor’s visa on 12 September 1995. On 4 March 1996 he was granted a Long Stay visitor’s visa valid until 12 September 1996. On 11 September 1996 he applied for a Class UC Subclass 457 visa as a pastry cook, sponsored by Mont Blanc French Patisserie. On 1 March 1999 the Immigration Review Tribunal held a hearing in this matter and evidence was given by the applicant and Mr S Nassif, the owner of Mont Blanc French Patisserie and the sponsor in this matter. The applicant was advised by the Tribunal that he could not meet the requirements of the visa without an approved sponsorship and nomination (CB p.90).
The visa application was made on the basis that the applicant would be employed by Mont Blanc French Patisserie as a pastry cook. However, the application for approval as a business sponsor made by Mont Blanc French Patisserie was refused by a delegate on 29 May 1997. The Tribunal had made a separate decision in relation to an application for review of the decision not to approve the proposed employer as a business sponsor (MRT Case No: N99/05723). That decision was to affirm the decision not to approve the employer as a business sponsor. That decision was made on 26 June 2000 (CB p.91).
By letter dated 28 June 2000, the Tribunal notified the applicant that Mont Blanc French Patisserie had not been approved as his sponsor and that, without an approved sponsor, he could not meet the criteria for the visa. In accordance with s.359A of the Migration Act 1958 (Cth) (“the Act”), the applicant was invited to respond. The Tribunal did not receive any comment from the applicant in response within the prescribed time. In the absence of any evidence that Mont Blanc French Patisserie, or any other business, had been approved as a business sponsor for the applicant, the Tribunal found that the applicant could not meet the essential criteria in subclause 457.223(4)(c) or 457.223(5)(c) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
Application for review of the Tribunal’s decision
On 8 September 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 7 January 2005 the applicant filed an amended application which contained the following grounds:
1.That a breach of the rules of natural justice occurred in connection with the making of the decision.
2.That the decision involved an error of law, whether or not the error appears on the record of the decision.
3.That procedures that were required by law to be observed in connection with the making of the decision were not observed.
4.That the making of the decision was an improper exercise of the Power conferred by the enactment in pursuance of which it was purported to be made.
5.That there was no evidence or other material to justify the making of the decision.
6.That the decision was otherwise contrary to law.
Regulations
The relevant section of the Regulations, being subclauses 457.223(4)(c) and 457.223(5)(c) of Schedule 2 state:
457.22Criteria to be satisfied at time of decision
457.221If the applicant is in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.
457.221AIf:
(a) the applicant is in Australia; and
(b) the applicant was outside Australia at the time of application;
the applicant is the holder of a visa mentioned in paragraph 457.211 (a), (b), (c) or (ca).
457.223(1) The applicant meets the requirements of subclause (2), (3), (4), (5), (7A), (8), (9) or (10).
…
Sponsorship -- Australian business
(4) The applicant meets the requirements of this subclause if:
(a)…
(b) …
(c)the applicant is nominated, in accordance with approved form 1068, 1196 or 1196 (Internet) , in relation to the activity by the employer; and
Sponsorship -- overseas business
(5) The applicant meets the requirements of this subclause if:
(a)the applicant proposes to be employed in Australia by a person (the employer ) who does not operate a business activity in Australia; and
(b)that activity is the subject of an approved business nomination by the employer made under regulation 1.20G; and
(c)either:
(i)the employer is a standard business sponsor approved under regulation 1.20DA; or
(ii)before 1 July 2003, the employer:
(A)did not operate a business in Australia; and
(B)gave the Minister undertakings in accordance with approved form 1067; and
(C)was a person whom the Minister was satisfied (apart from not operating a business in Australia) would, on application, have been likely to have been approved as a standard business sponsor; and
Reasons
The applicant is a self represented litigant who appeared with the assistance of an Arabic Lebanese interpreter and Mr Toufic Laba-Sarkis as a McKenzie friend. Mr Laba-Sarkis is known to the Court as a “McKenzie friend”, helping unrepresented applicants through various community groups. Mr Laba-Sarkis was advised of the limitations that applied to any person appearing as a McKenzie friend: McKenzie v McKenzie; R v Leicester City Justices; Ex parte Barrow & Anor; Smith v R. There was no objection from Counsel representing the respondent to Mr Laba-Sarkis assisting the applicant in that role.
I note this matter was originally listed for final hearing at 10.15 a.m. on 31 August 2005. That date was vacated because the applicant was unable to appear because of his carer’s role for his aged and invalided mother. Leave was granted to vacate that date and the hearing was re-scheduled for 11 November 2005. The applicant was also previously represented but that firm of solicitors withdrew on 25 October 2005 by mutual agreement between the applicant and that firm of solicitors.
At the commencement of the hearing on 11 November 2005, the applicant handed to the Court a typed document which could be best described as informal written submissions which set out in some detail the history of this matter, together with background material about the applicant and various developments within the litigation history of this matter from the time that it was before the Immigration Review Tribunal. The applicant has been represented at various times by different firms of solicitors but in each case they have withdrawn their associations with the applicant. The informal submission appeared to have been prepared by the applicant with the assistance of Mr Laba-Sarkis.
The amended application filed on 7 January 2005 asserted several grounds which are generic in form and are not explained by any particulars or submission. Counsel for the respondent submitted that in the absence of particulars these contentions are of no substance. Regretfully, the informal submission, while it does set out a history of this matter, falls into the same category as the application in that it does not address or particularise issues of judicial review arising from the Tribunal’s decision.
The amended application was supported by an affidavit sworn by the applicant on 6 January 2005 and filed on 7 January 2005. The affidavit asserted that documents were lost or misplaced by the Department but does not provide any evidence of relevance to the proceedings before the Tribunal. In particular, the affidavit fails to traverse the Tribunal’s finding that the applicant was ineligible for a visa because he did not have an approved business sponsor.
Counsel for the respondent submitted and I agree with the submission that in the absence of any evidence before the Tribunal that Mont Blanc French Patisserie or any other business had been approved as the sponsor for the applicant, the Tribunal was required to conclude that the applicant was not eligible for a visa. It was submitted that as a consequence of that absence of an approved sponsor, the Tribunal’s decision disclosed no error.
The relevant statutory and regulatory provisions are set out in the section headed “Regulations” above. The relevant visa was the subclass 457 visa as prescribed in Schedule 2 to the Regulations. Subsection 457.223 relevantly provided that it was necessary that the applicant for such a visa meet the requirements of one of the subclauses (2), (3), (4), (5), (7A), (8) or (9). The applicant sought to satisfy subclause (4) of 457.223. That subclause provided:
“The applicant meets the requirements of this subclause if:
(a)the activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer; and
(b)the employer is:
(i)a pre-qualified business sponsor; or
(ii)a standard business sponsor; and
…”
The expression “pre-qualified business sponsor” and “standard business sponsor” are defined in clause 457.111 by reference to the meanings attributed to them in Division 1.4A. At the time of the visa application, the term pre-qualified business sponsor” meant:
“… a person approved of as a pre-qualified business sponsor in accordance with regulation 1.20D”.
The term “standard business sponsor” was defined to mean:
“… a person approved as a standard business sponsor in accordance with regulation 1.20D”.
These regulations have subsequently changed however, at the relevant time, the definition was determined as set out above.
In the applicant’s application the nominated employer was Mont Blanc French Patisserie. It was therefore necessary, in order for the applicant’s application to be successful, that Mont Blanc French Patisserie be either a pre-qualified business sponsor or a standard business sponsor. However, the application for approval as a business sponsor made by Mont Blanc French Patisserie was refused by a delegate of the Minister on 29 May 1997. That decision and its subsequent review by the Migration Review Tribunal are a separate decision (see MRT Case No: N99/05723). That decision was to affirm a decision not to approve the employer as a business sponsor. That decision was made on 26 June 2000.
The applicant in his application proposed to be employed in the business activities of Mont Blanc French Patisserie as a pastry cook. That business did not hold either a pre-qualified business sponsor or a standard business sponsor status as these has been refused in separate proceedings before the Tribunal and the subject of a decision dated
26 June 2000. In the absence of any evidence that the applicant was seeking employment with any other organisation that was an approved business sponsor, the Tribunal found that the applicant was not entitled to the grant of a subsection 457 Temporary Business Entry visa.
Where the applicant is self represented, the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. The manner in which the grounds have been drafted and the lack of any particularisation make it difficult to address individual issues ensuring that all aspects have been raised by the applicant are satisfactorily addressed. As the grounds are generic in nature and to a significant extent overlap, I believe the appropriate method of handling the six grounds was to independently reconsider the contents of the Court Book and in particular the decision together with the informal submission handed up during the hearing by the applicant. I believe the Tribunal member referred to the correct legislative regime and applied the correct sections and regulations of the Act. The Tribunal identified the relevant issues that applied to the facts of the situation to the elements of the legislation and draw the correct conclusion. The allegation in the pleadings that the decision is contrary to law, contains errors or improperly exercises powers granted in the Act are not evident. Nor is there any evidence that the rules of natural justice have been denied to the applicant. I find no error in the decision making process adopted by the Tribunal member.
Counsel for the respondent made the further submission that the applicant’s delay in seeking judicial review was a cogent basis to deny relief on discretionary grounds. The Tribunal’s decision was delivered on 11 September 2000 and the proceedings in this Court were not commenced until September 2004, a period approximately four years. It was submitted that such delay without any explanation, warrants a refusal of relief in the exercise of this Court’s discretion pursuant to s.39B of the Judiciary Act 1903 (Cth): SAAP v Minister for Immigration & Multicultural & Indigenous Affairs per McHugh J at [80]:
“The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.”
See also per Hayne J at [211]; The King v The Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd at 400; Re Commonwealth; Ex parte Marks at [16].
Conclusion
As the grounds in the application are general and without particularisation, I have not been able to identify any ground that the Tribunal has committed jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 16 December 2005
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