Phillips v Minister for Immigration

[2007] FMCA 572

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PHILLIPS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 572

MIGRATION – Long stay temporary business visa – approved sponsor required – proposed sponsor refused approval – decision of the delegate not an MRT-reviewable decision – no valid application – no jurisdiction.

Migration Act 1958, ss.338, 347, 348
Migration Regulations, regs.1.20, 4.02, 5.19

Kim v Minister for Immigration and Citizenship [2007] FMCA 166

Applicant: IVAN PATRICK PHILLIPS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG 3435 of 2006

Judgment of: Turner FM

Hearing date: 21 March 2007

Date of last submission: 21 March 2007

Delivered at: Sydney

Delivered on: 21 March 2007

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr G Kennett

Solicitor for the Respondents: Ms Laura Gazi

ORDERS

1. The application is dismissed.

2. The name of the first respondent is amended to the Minister for Immigration & Citizenship.

3. The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3435 of 2006

IVAN PATRICK PHILLIPS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 22 November 2006 for an order to show cause why a remedy should not be granted in respect of a decision of the Migration Review Tribunal (“the Tribunal”) dated 27 October 2006, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a long stay temporary business visa.

2. The applicant was born on 4 June 1957 and is of Indian citizenship.

3. The applicant’s wife, daughter (born 18 December 1989 – (CB 2) –  the Court notes that at Court Book 35 the date specified is 1986, but nothing turns on the actual date of birth of the daughter), and two sons (born 20 March 1983 and 20 August 1996) are the secondary applicants in his business visa application.

4. The applicant first arrived in Australia on 26 August 2000 on a short stay visa. He departed on 10 November 2000 and re-entered Australia on 7 February 2001, again on a short stay visa. On 1 May 2001 the applicant was granted a long stay visa and on 5 October 2001 he was granted a long stay temporary business visa. That visa expired on 5 October 2002 and the applicant and secondary applicants have since been issued bridging visas pending the review of the matter (CB 62).

5. The applicant lodged an application for a temporary business visa with the Department of Immigration and Multicultural and Indigenous Affairs on 4 October 2002.

6. This application was refused by a delegate of the first respondent on

   
   

   7 November 2002 (CB 33).

7. On 28 November 2002 the applicant filed an application for review of the decision of the Minister’s delegate with the Migration Review Tribunal. The applicant submits that that was filed because someone at the Department of Immigration had taken the view that the decision should be reviewed, but, as stated by the Court to the applicant, this Court cannot take into account what may have been said by an officer of that department in considering whether the Tribunal has considered the matter before it according to law. 

8. On 4 June 2004 the Tribunal remitted the application to the Department for reconsideration with a direction that the primary visa applicant meet the requirements of regulation 457.223(4)(b) of the grant of a Temporary Business Entry (Class UC) visa, subclass 457 (CB 63).

9. A delegate of the Minister refused the application on 21 February 2006, and the applicant applied for a review of the decision by the Tribunal on 16 March 2006.

10. On 27 October 2007 the Tribunal found that it did not have jurisdiction to review the matter as the application was not properly made. The Tribunal stated that (CB 139) (emphasis added):

    The Department’s file record shows that on the visa application form 1066 lodged with the Department on 4 October 2002, the applicants indicated that they were applying for visas on the basis of “a person sponsored by an Australian business or…a business outside Australia” and specified “Cartridge World – Liverpool” as the “sponsoring employer” (the proposed sponsor). This indicates that the applicants were seeking to meet the requirements of subclause 457.223(4) for the grant of subclass 457 visa. A criterion for the grant of subclass 457 visas in the circumstance is that one of the applicants is sponsored by an approved sponsor in accordance with r.457.223(4)(i).

    The Department’s movement records show that the applicants were in the migration zone at the time of lodgement of the visa application on 4 October 2002. Given the Tribunal’s finding that sponsorship is a criterion for the grant of subclass 457 visas in the circumstances and that the applicants were in the migration zone at the time of the visa application, the Tribunal finds that the requirements of s.338(2)(d) applies.

    The Department’s file and electronic records indicate at the time of lodgement, the visa application was accompanied by an application by the proposed sponsor for approval as a business operator. The proposed sponsor was refused approval as a business sponsor by a delegate on 7 November 2002. On review, the Tribunal, differently constituted, set aside the delegate’s decision and substituted it with a decision and written instrument that the sponsor be approved as a standard business sponsor (MRT file no. N03/00014). The proposed sponsor’s approval as a standard business sponsor expired on 4 June 2005.

    In response to the Tribunal’s letter of 4 September 2006, the first-named applicant made written submissions received at the Tribunal on 25 September 2006. The Tribunal has considered the first-named applicant’s submissions but does not consider that they provide any basis for meeting the requirements of s.338(2)(d).

    The Tribunal is satisfied that at the time of lodgement of the application for review on 16 March 2006, the applicants were not sponsored by an approved sponsor, and that the proposed sponsor had not lodged an application for review at the Tribunal in respect of a decision not to approve the sponsorship and the result of which is pending. The Tribunal finds that the delegate’s decision of 21 February 2006 in the circumstances is not an MRT-Reviewable decision under s.338(2)(d). The Tribunal is further satisfied that the relevant decision of the delegate is not an MRT-Reviewable decision under any of the other subparagraphs of s.338 and r.4.02.

    As the Tribunal does not have an application properly made under s.347 for review of an MRT-reviewable decision as required by s.348(1), it has no jurisdiction in this matter.

11. The applicant then filed the application in this court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).

The application

1. In his application, the applicant set out fourteen grounds as follows:

   1)The sponsorer under regulation 1.20D(2)(e) “where relevant the applicant has a satisfactory record of compliance with the immigration laws of Australia.

   2)The sponsorship under regulation 1.20D(2)(f)(44) is able to comply with the undertakings given in accordance with the forms. JW Mailing Services Pty Ltd is a large company requiring the skills of the applicant in demand as per MODL.

   3)The previous Sponsorer Cartridge World owing to personal circumstances had a breakdown in his family owing to which the sponsoree became the victim.

   4)That a breach of the rules of natural justice occurred in connection with the making of the decision.

   5)That the applicant was denied procedural fairness in connection with the making of the decision.

   6)That the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law and an incorrect application of the law to the facts as found by the Tribunal Member, whether or not the record appears on the record of the decision.

   7)That the procedures that were required to consider the new sponsorship in view of shortages experienced and that a formal skills assessment and qualification recognition process undertaken for skilled migration applications is not normally required for 457 visa applicants. In this scenario; the applicant (sic) is a professional accountant whose resume attached herewith demonstrates his skills necessary to perform the activity to which he could get nominated by JW Mailing Services.

   8)Applicants are to be assessed against the position details provided by the employer in the nomination application, including details of the skills required for the position. Where possible, the Australian Standard Classification of Occupations (ASCO) should be referred to as the principal source of information on the normal duties and skill requirements for occupations in Australia.

   9)The Tribunal has not taken into effect the the (sic) objective of the business migration visa sponsorship and the Tribunal should look into the personal attributes and employment background relevant to, and consistent with, the nature of the activity perform; of course considering the qualification also.

   10)That the decision by the Tribunal and DIMA did not taken (sic) into account the relevant considerations and failed to take into account the meeting of his requirements by the new sponsor.

   11)Although the information before the Tribunal was that the primary applicant was not employed by the new owners of Cartridge World. The new owners assured me sponsorship after they were well set and assured me to keep patience. As a result I was stranded with their assurances and did not look for a new sponsor relying on their assurances. These were my compelling circumstances but the Minister well within his powers can make a decision and give me an approval based on the new sponsor: JW Mailing under special circumstances.

   12)Under Migration Regulation 5.19(3) one of the criteria for a position to be approved is that the work to be performed in the position required a “highly skilled person”. The DIMA officer considering the nomination will first establish, based on the information given in the norimination (sic) form, the exact duties of the nominated position i.e. Accountant.

   13)According to DIMA policy a position won’t be considered highly skilled solely because one or more of the following skills or knowledge are required: (1) fluency in another language (2) familiarity with the customs and cluture (sic) of a country or ethnic group; (3) specific knowledge of a company and/or its products. WHERE the position specifically requires someone listed on the MODL in which case the applicant very well falls under.

   14)There are no strict legal requirements regarding what a Nominator must do to show that they have been made unable to find a suitable worker in Australia.

   THAT THE DECISION INVOVLED DENIAL OF PROCEDURAL FAIRNESS IN CONNECTION WITH THE MAKING OF THE DECISION.

   THAT THE MAKING OF THE DECISION WAS AN IMPROPER EXERCISE OF THE POWER CONFERRED BY THE ENACTIMENT IN PURSUANCE OF WHICH IT WAS PURPORTED TO BE MADE.

Findings as to the grounds of the application

1. Ground 1: this ground does not show any error by the Tribunal and is rejected.

2. Ground 2: this ground does not show any error by the Tribunal and is rejected.

3. Ground 3: this ground does not show any error by the Tribunal and is rejected.

4. Ground 4: the Court finds no breach of the rules of natural justice. The decision of the Tribunal is based on the legal reasoning set out in its decision and referred to later in this decision. This ground is rejected.

5. Ground 5: the Court finds no denial of procedural fairness. This ground is rejected.

6. Ground 6: the Court finds no error of law, or incorrect interpretation of the law. This aspect will be dealt with in detail later in this decision.

7. Ground 7: the Court finds no error in the Tribunal’s conclusion (CB 139.8) that at the time of the lodgement of the application for review on 16 March 2006 the applicants were not sponsored by an approved sponsor. This ground is rejected.

8. Ground 8: this ground raises no challenge to the legal reasoning of the Tribunal and is rejected.

9. Ground 9: this ground alleges that the Tribunal did not take into account the objective of business migration visa sponsorship. The ground ignores the basis for the Tribunal’s decision and is rejected.

10. Ground 10: this ground does not take into account the findings of the Tribunal that “at the time of the application for review on 16 March 2006, the applicants were not sponsored by an approved sponsor” (CB 139.8) and that “the proposed sponsor has not lodged an application for review at the Tribunal in respect of a decision not to approve the sponsorship and the result of which is pending” (CB 139.8). The Tribunal then concluded that the decision of the delegate of 21 February 2006 is not an MRT-reviewable decision under s.338(2)(d) or any other paragraphs of s.338 or regulation 4.02. The Court finds no error of law in the Tribunal reaching that conclusion. Nothing has been put to show that the decision of 21 February 2006 is an MRT-reviewable decision. As it has not been shown that the Tribunal erred in concluding that the decision of 21 February 2006 was not an MRT-reviewable decision, no application for review could be made under s.347. It follows that the Tribunal was not required by s.348 to conduct a review, and indeed had no jurisdiction to review the decision of

    
    

    21 February 2006.

11. Ground 11: this ground ignores the finding by the Tribunal that at the time of lodgement of the application for review that applicants were not sponsored by an approved sponsor, and is rejected.

12. Ground 12: for a valid application for review to be made in the circumstances, the applicants had to be sponsored by an approved sponsor at the time (s.338(2)(d)). Fulfilment of a requirement under Regulation 5.19(3)(sic) does not overcome the failure to establish that the decision sought to be reviewed is not an MRT-reviewable decision. This ground is rejected.

13. Ground 13: this ground states the skills of the applicant and does nothing to show that the Tribunal erred in law in reaching its decision. This ground is rejected.

14. Ground 14: this ground raises no issue as to any error of law by the Tribunal and is rejected.

15. The Court finds no denial of procedural fairness, improper exercise of power, or other error.

16. The Court accepts the written submission of the first respondent that:

    “Either the Tribunal had jurisdiction or it did not. That depended on the operation of the relevant provision of the Migration Act 1958, and not on any action by the Tribunal itself,” and

    “The Tribunal could only have jurisdiction in respect of the delegate’s decision of February 2006 if it was an ‘MRT-reviewable decision’ under s.338 of the Migration Act. The only potentially relevant provision of s.338 is subsection (2).”

17. The Court accepts the analysis by the first respondent that sub-section (2) is the only potentially relevant provision of s. 338 as follows:

    A decision to refuse to grant a visa is an MRT-reviewable decision if it comes within subsection (2), (4), (5), (6), (7) or (7A)(or within a category of decision prescribed under subsection (9)). Subsection (4) deals with bridging visas and subsection (7A) deals with permanent visas. They are not presently relevant. Subsections (5), (6) and (7) relate to visas that cannot be granted while the applicant is in the migration zone. They did not apply to the visas sought by the Applicant: see cl.1233A(3)(aa) of Schedule 1 of the Migration Regulations (dealing with the circumstances in which a Class UC visa may be granted to a person seeking to remain in Australia for more than three months). A refusal to grant a subclass 457 visa is one of the categories of decision prescribed for the purposes of subsection (9) (reg.4.02(4)(l), but only if the visa applicant ‘is outside Australia at the time of application’. The reference to ‘application’ here is ambiguous but it does not appear to be in dispute that the present Applicant has been in Australia at all relevant times.

18. The crucial findings of the Tribunal are that:

    1)The Tribunal is satisfied that at the time of lodgement of the application for review on 16 March 2006 the applicants were not sponsored by an approved sponsor (CB 139.8);

    The delegate’s decision of 21 February 2006 in the circumstances is not an MRT-reviewable decision under s.338(2)(d) or any other sub-paragraphs of s.338 and Reg.4.02; (CB 139.9)

    2)As the Tribunal does not have an application properly made under s.347 for review of an MRT-reviewable decision as required by s.348(1), it has no jurisdiction in the matter (CB 139.10).

19. The Court brought to the attention of the applicant that his task is to demonstrate to the Court that the Tribunal had made an error of law in reaching the decision it did.  The applicant was invited to make submissions.

20. This Court must decide this matter as a matter of law and not on humanitarian or compassionate grounds, as urged upon it by the applicant.  Having said that, the Court is aware of the extremely difficult circumstances the applicant finds himself in. 

21. The Court finds that under s.348(1) of the Act the Tribunal is required to review a decision of the MRT only if an application is properly made under s.347 for review of an MRT-reviewable decision. The Tribunal found that it “does not have an application properly made under s.347 for review of an MRT-reviewable decision”. That conclusion is correct. The Tribunal has no jurisdiction in the matter: Kim v Minister for Immigration and Citizenship [2007] FMCA 166 at [32] per Smith FM. The circumstances in Kim are very similar to the circumstances of this case. Despite the different factual position, it does not lead this Court to decline to follow the decision in Kim.

22. By s.347 an application for review can be made under s.347 only in relation to an “MRT reviewable decision”. The Tribunal decided that the delegate’s decision of 21 February 2006 is not an MRT-reviewable decision under s.338(2)(b) or any of the other paragraphs of s.338 or under Reg.4.02. The applicant has not shown that the Tribunal erred in reaching that conclusion.

23. The Tribunal found that as it “does not have an application properly made under s.347 for review...it has no jurisdiction in the matter.” The applicant has not demonstrated any error of law by the Tribunal in reaching that conclusion. That conclusion is correct. Therefore the finding that “the Tribunal has no jurisdiction in the matter” must stand.

24. Accordingly, the application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:  Sarah James

Date:  17 April 2007