Premkumar v Minister for Immigration - [2005] FMCA 422

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PREMKUMAR v MINISTER FOR IMMIGRATION

[2005] FMCA 422

MIGRATION – Application for review of decision of Migration Review Tribunal – where applicant failed to obtain necessary sponsorship – where applicant wrote to Tribunal requesting it could proceed in a particular manner – where Tribunal did not respond to her letter – whether Tribunal should have followed another Tribunal’s decision – whether by not replying Tribunal raised a legitimate expectation that it would act as requested – whether Tribunal’s actions constituted a jurisdictional error.

Federal Magistrates Court Rules 2001

Minister for Immigration and Multicultural Affairs; Ex Parte Lam [2003] HCA 6 (12 February 2003)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002)
NABW v Minister for Immigration [2002] FCA 464
Soboleva v Minister for Immigration [2001] FCA 528

Applicant:

MALATHI PREMKUMAR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1702 of 2003

Judgment of:

Raphael FM

Hearing date:

30 March 2005

Date of Last Submission:

30 March 2005

Delivered at:

Sydney

Delivered on:

13 April 2005

REPRESENTATION

Counsel the Applicant:

Mr Ben Zipser

Counsel for the Respondent:	Mr Justin Smith
Solicitors for the Respondent:	Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the respondent’s costs which I assess in the sum of $4,000 according to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1702 of 2003

MALATHI PREMKUMAR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant seeks review of a decision of the Migration Review Tribunal dated 24 July 2003 in which the Tribunal affirmed a decision of the delegate made on 21 January 2002 finding that the applicant did not satisfy the requirements for the grant of any of the visa Subclasses included in temporary business (Class UC) visa and refusing to grant such a visa to the applicant.
The applicant applied for the grant of a Subclass 457 visa in the temporary business (Class UC) visa class. She had accompanied her visa application with an application for approval of a business sponsor by a business operating in Australia. The business sponsor was named Bombay Bloomers. On the 22 January 2002 that business was advised that its application for standard business sponsorship had been refused [CB 18]. As the applicant did not meet the requirements of any of the subclauses 457.223(2-9) the delegate held that she did not satisfy Migration Regulation 457.223. Regulation 457.223(5) requires the applicant to have been nominated by an employer who is an approved business sponsor for an activity that is a key or non key activity. Ms Premkumar did not have such or any sponsorship.
On 14 February 2003 Ms Premkumar applied through her agent, Adrian Joel and Company, for a review of the decision of the delegate. On 7 March 2003 the Tribunal wrote to her, care of her agent, inviting her to comment on information that the Tribunal considered would be a reason or part of the reason for affirming the decision that was under review. The relevant parts of the letter found at [CB 35] are as follows:
“You appear to have made claims against sponsorship by Australian business stream of subclass 457 visa. This stream requires that your employer has been approved as a business sponsor and has in place an approved business nomination to support your application by the time this Tribunal comes to make its decision. There is no evidence that you employer has been approved as a business sponsor, nor that your application is supported by an approved business nomination. The Tribunal notes that the decision to refuse approval as a business sponsor for Bombay Bloomers is the subject of an application for review currently before the Tribunal. If this application is not successful and there is no other approved business sponsorship, the Tribunal will ultimately have no alternative but to affirm the decision to refuse the application for a subclass 457 visa under that stream.” (emphasis added)
The applicant and Bombay Bloomers became represented by Arum Garg migration consultant. On 26 May 2003, Mr Garg sent a fax to the Tribunal [CB 48]. The relevant facsimile are as follows:
“We are acting on behalf of Malathi Premkumar, a Class UC Subclass 457 applicant.
Both the business’ nomination and the visa application were refused as a consequence of the failure of the business to achieve sponsorship approval.
We request the Tribunal to review above application after the outcome of the following is known;
1.   MRT review of MRT FILE NO2/1115 Bombay Bloomers
2.   New sponsorship being launched by Bombay Bloomers
3.   If both of the above options fail (sic) then an approved sponsor Khera Caterers Pty Ltd is willing to employ applicant and has approved sponsorship as enclosed.
I now respectfully submit that the Tribunal may exercise its discretion and wait for the outcome of business sponsorship review NO2/01115 Bombay Bloomers or fresh sponsorship outcome or direct the applicant to go for an already approved sponsorship and not to refuse the visas. This affects current sponsor and applicant present and the future years. Please sympathetically consider. Yours Sincerely.”
There was annexed to that a facsimile a letter from the department of immigration to Khera Caterers Pty Ltd care of Mr Garg indicating that this business held two nominations as a standard business sponsor.
The MRT did not reply to Mr Garg’s letter. On 2 June 2003 it sent Ms Premkumar a letter advising her of a hearing which would take place on 4 July 2003. The applicant attended the hearing. At the time she attended the hearing she did not have an approved nomination from a standard business sponsor. She had an application which was dependent upon a nomination from Bombay Bloomers being validated by that business being determined to be a standard business sponsor. She also had the indication of an offer of nomination from Khera Caterers. The Tribunal in its decision [CB 57-60] noted that it had received a statutory declaration from Mr Khera that he was willing to sponsor the application and a copy of the approval letter of one sponsorship allowing two nominated positions. The applicant advised the Tribunal that she would prefer to work for Bombay Bloomers but that Khera Caterers had agreed to sponsor her. In its decisions at [19] the Tribunal stated:
“The Tribunal considered whether the visa applicant meets the requirements of Regulations 457.223(4) or (5). The Tribunal noted the statutory declaration of Satish Khera dated 26 May 2003 which indicated that approval for 2 nominations had been obtained and that Mr Khera is willing to employ Ms Premkumar. The Tribunal also noted the Department’s letter dated March 2003 to Mr Khera regarding the approval of a business sponsorship for 2 nominations. In order to meet Regulations 457(4) or (5,) the activity in which the applicant proposes to be employed must be the subject of an approved nomination. There is no evidence of an approved nomination.”
As the applicant did not comply with the requirements of subclause 457.223 she did not meet the criteria for a Subclass 457 visa and the Tribunal affirmed the decision under review.
By an amended application filed on the 23 June 2004 the applicant sought judicial review of the decision of the Tribunal on the following grounds:
i)the Tribunal, in the course of finding that the applicant was not entitled to the grant of a temporary entry visa, failed to give the applicant an opportunity to lodge an approved nomination from Khera Caterers. In the circumstances of the case, this constituted a denial of procedural fairness. [Particulars provided]
ii)In the circumstances particularised above, the Tribunal should have remitted the matter to the department so that the applicant’s application could be assessed following the foreshadowed formal nomination by Khera Caterers Pty Ltd. The Tribunal, differently constituted, took this course in the matter of MRT FILE NO3/00484. The Tribunal’s failure to take this course of action in the present case constituted jurisdictional error.
I will deal first with the second ground of the application because I was handed by Mr Zipser, who appeared on behalf of the applicant, a copy of the decision of the Tribunal in MRT FILE NO3/00484. What occurred in that case was that the Tribunal had before it an application from an applicant who indicated that he wished to work for company A which was not at that time a standard business sponsor and also had and provided the Tribunal with a nomination from a standard business sponsor (coincidentally, Khera Caterers Pty Ltd). The Tribunal then determined to refer back to the delegate the application based upon the existence of a nomination from a standard business sponsor. In this case there was no such nomination as the Tribunal pointed out. All there was, was an indication of intent on the part of the proposed sponsor to nominate the applicant. One Tribunal is not obliged to follow the decision of another Tribunal differently constituted: Soboleva v Minister for Immigration [2001] FCA 528; NABW v Minister for Immigration [2002] FCA 464. Failure to follow the decision of another Tribunal cannot constitute jurisdictional error. But in any event the decisions were not the same. There was a significant difference in the situations of the respective applicants.
Mr Zipser’s case on his first ground of application was that the Tribunal by not responding to the applicant’s agent’s letter failed to provide the applicant with natural justice arising from her legitimate expectation that it would act as she had requested. In other words it would not make a decision on her application before deciding on the application of Bombay Bloomers and giving her an opportunity to substitute for her reliance upon a sponsorship from that business a sponsorship from Khera Caterers. He also put the argument another way suggesting that by not responding and not indicating to the applicant that it did not propose to act as she had requested the Tribunal failed to provide her with information about a matter which the Tribunal considered would be the reason or part of the reason for affirming the decision which was under review. The difficulty which I have with that submission is that the Tribunal had written to Ms Premkumar as indicated earlier in these reasons making it quite clear that there needed to be another approved business sponsorship in existence or it was bound to refuse the application. It seems to me that this advice put the applicant clearly on notice of what she must do. She should have obtained the sponsorship and nomination of Khera Caterers and submitted to the Tribunal before the hearing.
I can see that the silence of the Tribunal following receipt of the fax from the agent was disconcerting but I cannot see how it could be taken to create a legitimate expectation that the Tribunal would react either positively or negatively to the request. The doctrine of legitimate expectation is in any event severely limited in Australia by the decision of the High Court in Minister for Immigration and Multicultural Affairs; Ex Parte Lam [2003] HCA 6 (12 February 2003) particularly at [81-83]. At its highest the doctrine is really a doctrine of reliance upon representations. There was no representation here one way or another. The applicant gave evidence that she believed that the Tribunal was going to act as requested. I accept that this may have been the case but her subjective views of the matter really have little relevance. She also says that if she had known that the Tribunal was not going to grant her request then she would have acted differently. That is important evidence in certain circumstances. It is the type of evidence required in cases which rely on the principles enunciated by the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). But I have nothing before me to suggest that a reasonable bystander would have made the assumption that the Tribunal was going to accede to her request. When one bears in mind that the request was made before the hearing invitation and the hearing invitation was itself delivered a month before the actual hearing and that there was therefore plenty of time for the applicant to clarify the situation and request a response one sees how difficult it is to make a finding that the actions of the Tribunal constituted jurisdictional error in either of the manners suggested so eloquently by Mr Zipser.
The application is dismissed. The applicant must pay the respondent’s costs which I assess in the sum of $4,000 according to Part 21 Rule 21.02(2) of the Federal Magistrates Court Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: