Premkumar v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 885
•24 JUNE 2005
FEDERAL COURT OF AUSTRALIA
Premkumar v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 885
MALATHI PREMKUMAR v MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRSNSD 982 OF 2005
EMMETT J
24 JUNE 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD679 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
MALATHI PREMKUMAR
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
24 JUNE 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD679 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
MALATHI PREMKUMAR
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
EMMETT J
DATE:
24 JUNE 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant entered Australia on 24 December 2000 on a Short Stay (Visitor) (Class TR) Visa Subclass (Tourist Short Stay) Visa. On 6 March 2001, the appellant was granted a tourist (Long Stay) Subclass 686 Visa. On 4 June 2001, she lodged an application for a Temporary Business Entry (Class UC) Subclass 457 Business (Long Stay) Visa. That application was refused by a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), on 22 January 2002.
On 15 February 2002, the appellant lodged an application to the Migration Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 24 July 2003, the Tribunal affirmed the decision of the Minister’s delegate not to grant a visa. On 25 August 2003, the appellant commenced a proceeding in the Federal Magistrates Court seeking Constitutional writ relief in respect of the decision of the Tribunal. On 13 April 2005, the Federal Magistrates Court ordered that the proceeding be dismissed with costs. On 3 May 2005, the appellant filed notice of appeal from those orders to the Federal Court of Australia. The Chief Justice has directed that the appeal be heard by a single judge.
The appellant claims that the decision of the Tribunal was affected by a denial of procedural fairness that constituted jurisdictional error on the part of the Tribunal. She seeks orders that the decision be quashed and that the Tribunal rehear and determine the application for review according to law. She contends that, because the decision involved jurisdictional error, it was not a decision under the Migration Act 1958 (Cth) (‘the Act’) and, accordingly, is not a privative clause decision within the meaning of s 474 of the Act. It would follow that the prohibition in s 474(1) on judicial review of decisions made under the Act does not apply to the Tribunal’s decision. The Minister accepts that, if there were a denial of procedural fairness on the part of the Tribunal, the appellant would be entitled to the relief claimed.
Under clause 457.223 in Schedule 2 to the Migration Regulations 1994 made under the Act (‘the Regulations’), one of the criteria for the grant of a Business (Long Stay) (Subclass 457) Visa that must be satisfied at the time of decision is that the applicant meets the requirements of one of the subclauses of clause 457.223. The relevant requirement for present purposes is that:
- 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
- the employer is a standard business sponsor.
The record of 22 January 2002 of the delegate’s decision indicates that the appellant’s visa application was refused because the requirement of clause 457.223 was not met. In her visa application, the appellant specified Bombay Bloomers as her employer for the purposes of satisfying that requirement. However, at that stage, Bombay Bloomers was not a standard business sponsor. Accordingly, on 4 June 2001, the day on which the appellant lodged her visa application, Bombay Bloomers applied for approval as a business sponsor. On 22 January 2002, the Minister’s delegate also refused the application by Bombay Bloomers and, on 15 February 2002, Bombay Bloomers lodged a valid application to the Tribunal for review of that decision.
On 7 March 2003, the Tribunal wrote to the appellant. The letter said that s 359A of the Act requires that the Tribunal must explain, and invite comment on, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. The letter invited the appellant to comment on the following:
‘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 your 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.’
The letter went on to say:
‘If you make comments, the Tribunal will consider your comments carefully. If the Tribunal is still unable to make a decision in your favour, it will then provide you with an opportunity to appear before the Tribunal.
If the Tribunal does not receive any comments within the period allowed, it may, under section 359C of the Act, make a decision on the review without taking any further action to obtain your comment. In addition, you will not be entitled to appear before the Tribunal.’
Enclosed with the letter was a document setting out the terms of clause 457.223.
In her affidavit of 22 June 2004, read in the proceeding before the Federal Magistrates Court, the appellant said that she understood from the Tribunal’s letter of 7 March 2003 that, if she provided to the Tribunal details of another employer who was willing to sponsor her, the Tribunal could consider the new business sponsor, approve the sponsor and then grant her a visa.
Following a request by the appellant’s migration consultant for an extension of time to respond to the letter of 7 March 2003, the Tribunal wrote to the appellant again on 28 April 2003. After indicating that the request for an extension had been granted, the Tribunal said:
‘If you provide comments, the Tribunal will consider them carefully. If the Tribunal s still unable to make a decision in your favour, it will then provide you with an opportunity to appear before the Tribunal.
If the Tribunal does not receive any comments within the period allowed, it may, under section 359C of the Act, make a decision on the review without taking any further action to obtain your comment. In addition, you will not be entitled to appear before the Tribunal.’
On 26 May 2003, the last day for responding, the appellant’s migration consultant wrote to the Tribunal. After referring to the letter of 7 March 2003, the migration consultant said:
‘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 following is known.
1. MRT Review of MRT file Ref.: N02/1115 Bombay Bloomers
2. New sponsorship being lodged by Bombay Bloomers.
3.If both the above options fails 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 N02/1115 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.’
Enclosed with that letter was a copy of a letter dated 17 March 2003 from a delegate of the Minister confirming that an application by Khera Caterers Pty Ltd (‘Khera’) for a standard business sponsorship lodged on 28 February 2003 had been approved. Also enclosed with the letter of 26 May 2003 was a statutory declaration by a director of Khera relevantly saying:
‘We are willing to sponsor South-Indian cook [appellant]…
In the event Bombay Bloomer’s sponsorship is not approved then we request you to consider our sponsorship. We will lodge a nomination with DIMIA when our request is so ordered.’
On 2 June 2003, the Tribunal wrote to the appellant again in connection with her application for review. By the letter, the appellant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to her application for review. The letter appointed 4 July 2003 for the purposes of such a hearing. In the light of the letters of 7 March 2003 and 28 April 2003, it was clear that, since the Tribunal was inviting the appellant to a hearing, it was not able to make a decision in the appellant’s favour on the basis of the material before it.
The appellant attended a hearing on that day. In her affidavit sworn on 22 June 2004, the appellant said that she told the Tribunal that she preferred to be employed by Bombay Bloomers but that, if that was not possible, Khera was ready to employ her and she was happy to work for Khera. She also confirmed that her migration agent gave to the Tribunal a copy of the document of 17 March 2003 relating to Khera. In a further affidavit, the appellant said that it was her recollection that the Tribunal did not say anything about her evidence concerning her preference to be employed by Bombay Bloomers. There was no other evidence as to any comment or response by the Tribunal when that evidence was given to it by the appellant. She also said that the Tribunal did not tell her or warn her that if the Tribunal refused the application by Bombay Bloomers to sponsor or nominate her, it would not give her a further opportunity to obtain sponsorship or nomination from Khera.
The appellant also said that she expected that, if the Tribunal refused the application by Bombay Bloomers, the Tribunal would either make a decision on the application by Khera to sponsor or nominate her or, if further documents were required in support of the application by Khera, the Tribunal would give the appellant or Khera an opportunity to provide the further documents to the Tribunal or to the Minister’s Department.
Following the hearing on 4 July 2003, the appellant’s migration consultant wrote to the Tribunal again, on 14 July 2003. Apart from forwarding financial information concerning Bombay Bloomers, the letter said as follows in relation to the appellant:
‘We did provide a [statutory declaration] and approved sponsorship from Khera… on 26 May 2003…. Please note Khera… secured sponsorship approval for 2 cooks from DIMIA on 17/3/2003. They nominated one cook… who was granted a subclass 457 visa on 24 June 2003.
Hence Khera… has one more sponsorship approval for a temporary resident that is a cook and is willing to lodge nomination following the Tribunal decision against Bombay Bloomers i.e. to affirm both the sponsorship of Bombay Bloomers under review.’
The letter ended as follows:
‘I am now once again respectfully submit that the Tribunal may exercise its discretion to remit the sponsorship review and not to refuse the visas to South Indian cook [the appellant]. This affects sponsor and applicant present and future years. Please sympathetically consider.’
It is by no means clear that that was a repetition of the request that was made in the letter of 26 May 2003.
In its reasons of 24 July 2003, the Tribunal recorded that oral evidence had been given by the appellant that someone else had agreed to sponsor her as a cook, but that that had not been finalised and the appellant would prefer to work for Bombay Bloomers. The Tribunal acknowledged that the appellant’s migration consultant had referred to the statutory declaration from Khera and had stated that Khera had obtained approval for two nominations and was willing to employ the appellant.
In considering whether the appellant met any of the requirements of the subclauses of clause 457.223, the Tribunal noted again the statutory declaration from Khera saying that Khera was an approved business sponsor and was willing to employ the appellant. However, the Tribunal considered that, in order to meet the requirements in question, the activity in which the appellant proposes to be employed must be the subject of an approved nomination and that, since there was no evidence of an approved nomination, the appellant did not meet the criteria for the relevant visa.
The grounds upon which the appellant claimed relief before the Federal Magistrates Court may be summarised as follows:
1. the Tribunal denied the appellant procedural fairness in that:
(a) the appellant applied for a subclass 457 Business Long Stay Visa;
(b)the appellant told the Tribunal that she preferred to be employed by Bombay Bloomers but that if the application by Bombay Bloomers failed she was willing to be employed by Khera;
(c)the appellant put before the Tribunal evidence that Khera was a standard business sponsor and was willing to nominate and employ the appellant;
(d)the appellant expected that the Tribunal would make a decision on the application by Bombay Bloomers prior to making a decision on her application and that, if the Tribunal refused the application by Bombay Bloomers, it would give the appellant an opportunity to arrange for Khera to lodge a formal nomination before the Tribunal made a decision on the appellant’s review application;
(e)on 24 July 2003, the Tribunal made a decision refusing Bombay Bloomers application and, without giving the appellant an opportunity for Khera to lodge a formal nomination in respect of her, the Tribunal refused to grant her application;
(f)if the Tribunal had given the appellant an opportunity to arrange for Khera to lodge a formal nomination, the appellant would have had the opportunity to do so and would have met one of the requirements of clause 457.223.
(2)The Tribunal’s failure to remit the matter to the Department so that the appellant’s application could be assessed following the foreshadowed formal nomination of Khera constituted jurisdictional error.
Procedural fairness requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity and, accordingly, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness (Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]). Any person represented at an enquiry, who would be adversely affected by a finding should not be left in the dark as to the risk of the finding being made and thus be deprived of any opportunity to adduce additional material of probative value that, had it been placed before the decision-maker, might have deterred the decision-maker from making the finding (Mahon v Air New Zealand Ltd [1984] AC 808 at 821). Further, a decision-maker should not make an adverse finding relevant to a person’s rights, interest or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided – Re RRT; Ex parte Aala (2000) 204 CLR 82 at [101].
However, this is not a case where the appellant has not had ample opportunity to adduce material in support of her case, or to answer a case made against her. The case against her was that she did not satisfy any of the requirements of clause 457.223. There was no further evidence that could have been adduced to show that she did satisfy the requirements. She was told unequivocally that the Tribunal would not be able to make a favourable decision because she could not satisfy that requirement.
Thus, her complaint is not that she was not given the opportunity to adduce material in support of her case or to respond to a case against her. Rather, her complaint is that she was not given an opportunity to mount a different case. The appellant had never made an application for a visa based upon an approved business nomination by Khera. She had based her application on an approved business nomination by Bombay Bloomers.
Clearly, the appellant was hopeful that Bombay Bloomers’ review application would be successful and that it would be made before a decision was made on her application. If her review application had been decided before the review application made by Bombay Bloomers, it was bound to fail. However, both the Minister’s delegate and the Tribunal, in essence, treated the two applications as one. That is to say, there does not appear to have been a risk that the appellant’s application would fail simply because it was decided before any favourable decision in relation to Bombay Bloomers’ application for approval as a standard business sponsor.
In essence, the appellant’s complaint is that the conduct of the Tribunal in not responding in terms to her migration consultant’s letter of 26 May 2003 and in not saying anything in the course of the hearing to the effect that the appellant would not be given an opportunity to obtain an approved business nomination by Khera if Bombay Bloomers’ application for approval as a standard business sponsor were refused, denied her procedural fairness. She says, in effect, that, by its conduct, the Tribunal impliedly represented that she would have such an opportunity and that the denial of such an opportunity was the denial of procedural fairness.
As I understand the Minister’s position, she accepts that, if the conduct of the Tribunal was such as to induce the appellant, acting reasonably, to understand that she would be afforded the opportunity of obtaining an approved business nomination from Khera if the application by Bombay Bloomers for approval as a standard business sponsor was refused and the Tribunal then denied such an opportunity to the appellant, there would be a denial of procedural fairness. The real question is whether, in the circumstances of this case, it can be said that the Tribunal was, in any way, responsible for the appellant’s failure to obtain an approved business nomination from Khera prior to the Tribunal’s making its decision to refuse her visa application.
It is common ground that there was no impediment for the appellant in obtaining an approved business nomination from Khera in circumstances where she already had one from Bombay Bloomers. That is to say, it would have been open to her to base her application for a visa on the basis that she could satisfy one of the requirements of clause 457.223 with either Bombay Bloomers or Khera.
The letter from the Tribunal of 7 March 2003 made it clear that, at that stage, the Tribunal would affirm the delegate’s decision if Bombay Bloomers failed in its review. The Tribunal made it clear that if Bombay Bloomers application for review was unsuccessful and there was not other approved business sponsorship, the Tribunal would have no alternative but to affirm the decision. While the migration consultant’s letter of 26 March 2003 made it tolerably clear that the appellant hoped that the Tribunal would defer deciding the appellant’s review application until some time after it had decided Bombay Bloomers review application, there was nothing from the Tribunal that would justify the appellant’s Lack of action. The migration consultant wrote again after the hearing. At that time, it would have been open to the migration agent to inform the Tribunal that, on the basis that the Tribunal had not expressly rejected the request of 26 May 2005, the appellant had assumed that the statement made in the Tribunal’s letter of 7 March 2003 would not be enforced. However, the consultant did not do so.
In all the circumstances, I do not consider that the conduct of the Tribunal was unfair to the appellant such that she was denied procedural fairness. This was not a case where the Tribunal ignored an adjournment request. Nor is it a case where the appellant made clear to the Tribunal that, in reliance upon the expectation that she said she had, she was not proposing to take a step that might otherwise have been available to her. I do not consider that there was a denial of procedural fairness by the Tribunal such as would justify an order quashing its decision.
The appeal should be dismissed with costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 30 June 2005
The appellant appeared in person. Counsel for the Respondent: Ms M. Allars Solicitor for the Respondent: Sparke Helmore Date of Hearing: 24 June 2005 Date of Judgment: 24 June 2005
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