Park v Minister for Immigration
[2016] FCCA 4
•19 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PARK & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 4 |
| Catchwords: MIGRATION – Review of former Migration Review Tribunal decision – temporary business visa application – Tribunal finding that it lacked jurisdiction – whether the review applicants had made a valid review application considered. |
| Legislation: Migration Act 1958 (Cth), ss.140E, 338, 347, 348 Migration Regulations 1994 (Cth) |
| Pioneer Glass Pty Ltd v Minister for Immigration & Anor [2016] FCCA 1 |
| First Applicant: | HYEYOUNG PARK |
| Second Applicant: | JUNKYOUNG LEE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3080 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 2 December 2015 |
| Date of Last Submission: | 28 January 2016 |
| Delivered at: | Sydney |
| Delivered on: | 19 February 2016 |
REPRESENTATION
| First Applicant appeared in person |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
A writ of certiorari shall issue, removing the record of the former Migration Review Tribunal decision made on 24 October 2014 into this Court for the purposes of quashing it.
A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to redetermine the review application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3080 of 2014
| HYEYOUNG PARK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This matter and the matter of Pioneer Glass Pty Ltd v Minister for Immigration & Anor[1]are inter-related and were heard concurrently with common representation. In this proceeding (Park), Mrs and Mr Park were refused business entry visas by the Minister’s delegate (Delegate) and the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) found that it did not have jurisdiction to review that decision. In the other proceeding (Pioneer Glass) the applicant, Pioneer Glass, was refused a business sponsorship. Likewise, in Pioneer Glass, the Tribunal found that it lacked jurisdiction to review the decision of the Delegate to refuse the sponsorship.
[1] [2016] FCCA 1
The following statement of background facts is otherwise derived from the submissions of the Minister.
Pioneer Glass applied for approval as a Standard Business Sponsor on 28 April 2014. On 27 June 2014, the Delegate, acting under s.140E of the Migration Act 1958 (Cth) (Migration Act), refused to grant the sponsorship approval on the basis that Pioneer Glass did not satisfy the training benchmark requirements in regulation 2.59(d) of the Migration Regulations 1994 (Cth) (Regulations) for approval as a sponsor[2]. Pioneer Glass was notified of the Delegate's decision by email dated 30 June 2014 to its authorised recipient, Toufic Laba-Sarkis[3].
[2] Court Book (CB) 44-49
[3] CB 40
Pioneer Glass lodged an application for review to the Tribunal on 21 July 2014[4]. The review application form was completed to indicate that the prescribed fee would be paid by credit card. The signature of the cardholder, however, was missing from the form[5] and payment was not processed that day. The Tribunal concluded that the last day for lodgement of the review application was 21 July 2014 and because the prescribed fee was not “paid” within the prescribed period, the Tribunal did not have jurisdiction to review the Delegate's decision[6].
[4] CB 51
[5] CB 59
[6] CB 96-97
It is common ground that the judicial review application in this case depends entirely on the outcome of the Pioneer Glass proceeding.
The only issue in the present proceedings concerns the correctness of the Tribunal’s conclusion that it did not have jurisdiction to review the Delegate’s decision because the matter did not fall within s.338(2)(d) of the Migration Act. Section 338(2)(d) is in the following terms:
A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is an “MRT-reviewable decision” if:
…
(d) where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
The Tribunal found it did not have jurisdiction in the matter given that Mrs and Mr Park did not meet, relevantly, the requirements of s.338(2)(d)(i) or (ii) because (a) she was not sponsored; and (b) because the sponsor (Pioneer Glass) had not made a valid application to the Tribunal for review of a sponsorship decision which was pending.
Mrs and Mr Park made an application for review to the Tribunal on 7 August 2014, that is, after the purported application for review of the sponsorship decision that was made by Pioneer Glass. As noted above, if the Court concludes that the Tribunal did have jurisdiction to review the sponsorship decision, Mr and Mrs Park in these proceedings must be successful and the Tribunal’s decision in the this case must be set aside.
Conversely, if the Court in the Pioneer proceeding concludes that the Tribunal correctly found that it did not have jurisdiction, Mrs and Mr Park in this case will be unsuccessful because the Tribunal’s conclusion about the absence of jurisdiction will have been correct.
The judicial review applications
Mr and Mrs Park rely upon their judicial review application filed on 6 November 2014. The application was supported by a short affidavit, which I received. I also received the court book filed on 18 November 2014. I also received, subject to relevance, the Tribunal’s National Registry Procedure document in relation to finances[7]. Pioneer Glass and the Minister both made written and oral submissions. Mrs and Mr Park made oral submissions only.
[7] Exhibit R1
Consideration
The Minister contends that the Tribunal was correct in both matters to find that it lacked jurisdiction. In Park, the Tribunal found that it lacked jurisdiction because, at the time they sought review by the Tribunal, the applicants did not have an approved sponsor. In Pioneer Glass, the Tribunal found that it did not have jurisdiction because a valid review application was not made within the required time period. The circumstances are set out in the Tribunal’s decision in that case at [3]-[7][8]:
Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 21 July 2014. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.
In the review application lodged on 21 July 2014, the applicant indicated that it intended to pay the prescribed fee by credit card. However, the signature of the fee payment cardholder was missing and the payment could not be processed on that day. On 22 July 2014, a Tribunal officer attempted to call the cardholder, Mrs Jocelyne Chidiac, but the call was not answered. A Tribunal officer then called the applicant’s authorised recipient, Mr Toufic Laba Sakis, and advised him that signature was missing. On 23 July 2014 the Tribunal received a fax with a signature on page 9, question 26 of the form, but the credit card details had not been completed on the page containing the signature. The fee was not processed as the time frame in which to lodge a valid application for review had expired.
On 14 August 2014 the Tribunal wrote to the applicant inviting comments on the issue of jurisdiction. The Tribunal received a response from Mrs Jocelyne Chidiac on 5 September 2014. Mrs Chidiac advised that she had to travel to Lebanon on 2 July to visit her sick mother and she did not return until 7 August 2014. The authorised recipient tried to get in touch with her but she was in a remote area and was out of telephone and email contact. She admits that when the application was lodged on 21 July 2014, the signature was missing. When she sent the second fax with the signature, the card details had faded but they related to the same credit card details that had been provided earlier.
The Tribunal finds that the prescribed fee was not paid within the prescribed period which ended on 21 July 2014. While a review application form was lodged on that date, and an attempt was made to pay the prescribed fee by credit card, the review application form contained insufficient details to process the payment by credit card. The review application form did not contain the cardholder’s signature. The review applicant attempted to re-send part of the review application with the cardholder’s signature, but this did not contain sufficient information to lodge process the credit payment as the credit card details were missing. In any case, this information was provided after the prescribed period had already ended. The Tribunal has considered the review applicant’s submissions that the relevant representative of the review applicant company was overseas and in a remote location, but the Tribunal has no discretion to take these factors into account in determining whether the prescribed fee has been paid within time.
The Tribunal finds that the prescribed fee has not been paid within the prescribed period and no determination has been made (or requested) that the fee should be reduced. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.
[8] CB 96-97
The Minister contends that the Tribunal was correct in that finding.
In the present case the Tribunal stated at [2]-[9] of its decision[9]:
[9] CB 97
The Tribunal’s jurisdiction arises under s.348 of the Migration Act 1958 (the Act) if an application is properly made under s.347 for review of an MRT-reviewable decision. Section 338 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are MRT-reviewable and the circumstances in which they are reviewable. Relevantly a decision to refuse to grant a Temporary Business Entry (Class UC) visa is MRT-reviewable under s.338(2) if, at the time the review application is lodged, the applicant is sponsored or nominated by an approved sponsor, or there is a valid application for review of a decision not to approve the sponsorship application and the review is pending.
In this case the sponsor, Pioneer Glass Pty Ltd lodged an application for review in respect of a decision to refuse a standard business sponsorship application. On 15 September 2014 the Tribunal, differently constituted, made a decision that it did not have jurisdiction to review that application.
In this case, the Tribunal was of the preliminary view that, for the applicants to have made a valid application for review, at the time they lodged their application for review, the sponsor either needed to be an approved sponsor, or to have made a valid application for review of a decision not to approve the sponsorship application and the review was pending. The Tribunal noted in this case the review application may not be a valid application as it appeared that when the applicants lodged the review application the sponsor was not approved and the sponsor had not made a valid application to the Tribunal for review of a sponsorship decision. The Tribunal wrote to the applicants seeking their comments.
On 17 October 2014 the applicants responded as follows:
Please keep the file open until the Federal Court’s outcome on the validity of the review as per attached.
The applicants provided a copy of an application to the Federal Circuit Court filed made by the sponsor on 16 October 2014.
The Tribunal has considered this request. However it is of the view the outcome of the matter before the Federal Circuit Court is speculative.
The Tribunal does not have the evidence before it that, at the time the applicants lodged their application for review, the sponsor either was an approved sponsor, or had made a valid application for review of a decision not to approve the sponsorship application and the review was pending.
The Tribunal finds therefore that the review application is not valid because when it was lodged the sponsor was approved. Nor had the sponsor not made a valid application to the Tribunal for review of a sponsorship decision.
In Pioneer Glass I have found that the Tribunal fell into jurisdictional error in finding that the review application in that case was not valid. As already noted, it necessarily follows that in this case the Tribunal was also in error in finding that the applicants had not made a valid application because their sponsor had not made a valid review application.
I will grant the relief sought by the applicants.
I will hear the parties as to costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 19 February 2016
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