Quan v MIMAC - [2013] FCCA 1254

FEDERAL CIRCUIT COURT OF AUSTRALIA

QUAN v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP & ANOR

[2013] FCCA 1254

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the applicant satisfied the criteria for a grant of a 457 visa – whether the applicant met the specific criteria identified in Item 3004 of Schedule 3 to the Migration Regulations 1994 (Cth) – whether the applicant would have been entitled to be granted a 457 visa if the applicant had applied for the visa on the day on which the applicant last held a substantive visa – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B.
Migration Act 1958 (Cth), ss.65, 474.
Migration Regulations 1994 (Cth) Sch 1, Sch 2, Sch 3.

Applicant:

YING AI QUAN

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 935 of 2013

Judgment of:

Judge Emmett

Hearing date:

2 September 2013

Date of Last Submission:

2 September 2013

Delivered at:

Sydney

Delivered on:

2 September 2013

REPRESENTATION

Solicitor for the Applicant:

Mr David Mendelssohn

Counsel for the Respondents:

Ms Brenda Tronson

Solicitor for the Respondents:

Ms Hervee Dejean (Australian Government Solicitor)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 935 of 2013

YING AI QUAN

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 11 April 2013 and handed down on 12 April 2013 (“the MRT”).
The issue in this case is whether the applicant satisfied the criteria for the grant of a 457 visa for which she applied on 17 September 2012.
On 4 July 2008, the applicant entered Australia using a false South Korean passport and was granted a 3 month tourist visa that expired on 4 October 2008.
On September 2012, the applicant applied for a subclass 457 visa and identified a migration agent authorised to receive documents on her behalf.
On 10 January 2013, a delegate of the delegate refused the applicant’s application for a visa.
On 30 January 2013, the applicant lodged an application for review of the delegate’s decision by the MRT, again authorising the same migration agent to receive documents on her behalf.
The MRT affirmed the decision of the delegate not to grant the applicant a 457 (long stay) visa in a decision dated 11 April 2013 and handed down 12 April 2013.
On 3 May 2013, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative framework

The Temporary Business Entry (Class UC) visa contains two sub classes: Subclass 456 and Subclass 457. The criteria for the relevant Subclass 457 visa are set out in cl.457 of Schedule 2 to the Migration Regulations 1994 (“The Regulations”) and Schedule 1 to the Regulations).
Clause 457.211 of Schedule 2 to the Regulations relevantly states the following:
“Section 457.211
If the applicant is in Australia at the time of application:
(a) the applicant holds a substantive visa, other than a Subclass 711 (Transit) visa or a special purpose visa; or
(b) if the applicant does not hold a substantive visa at the time of application :
(i) the last substantive visa held by the applicant was not a Subclass 771 (Transit) visa or a special purpose visas:
(ii) the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.”(emphasis added)
Item 3004 of Schedule 3 to the Regulations relevantly provides the following:
“If the applicant:
(a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that
(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and
(d) there are compelling reasons for granting the visa; and
(e) the applicant has complied substantially with:
(i) the conditions that apply or applied to:
(A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B) any subsequent bridging visa; and
(f) either:
(i) in the case of an applicant referred to in the paragraph (a) – the applicant would have been to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii) in the case of an applicant referred to in paragraph (b) – the applicant would have satisfied the criteria other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g) the applicant intends to comply with any conditions subject to which the visa granted; and
(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.” (emphasis added)
On 10 January 2013, the delegate refused the applicant’s application for a visa on the basis that the applicant did not satisfy cl.457.211 or cl.457.321 of Schedule 2 to the Regulations.

The MRT’s review and decision

On 13 February 2013, the MRT wrote to the applicant informing her that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 1 March 2013 to give oral evidence and present arguments.
On 28 February, the applicant’s migration agent made provided to the MRT written submissions in support of the applicant’s application.
On 1 March 2013, the applicant attended the MRT hearing and gave evidence.
The primary issue for determination before the MRT was whether the applicant met the requirements of cl.457.211 of Schedule 2 to the Regulations.
In considering this issue, the MRT was first required to determine whether the applicant was in Australia and held a substantive visa at the time of application for the purpose of cl.457.211. The MRT found that the applicant was in Australia on 17 September 2012, the date of the visa application, and that on that date she did not hold a substantive visa. The MRT found that the applicant was subject to the provisions of cl.457.211 to Schedule 2 of the Regulations and was required to meet the provisions of criteria contained in item 3004 of Schedule 3 to the Regulations under the requirements of cl.457.211(b)(ii).
The MRT then considered whether the applicant fell within the circumstances detailed in cl.3004(a), which applies to applicants who have previously held a visa in Australia, or cl.3004(b), which applies to applicants who have entered Australia unlawfully.
The MRT concluded that on the basis of the evidence before it, the applicant entered Australia as the holder of a visitor visa or Electronic Travel Authority. While the MRT acknowledged that even if the identity information provided by the applicant in relation to her passport and visa was false, it considered that the application was made by her as a ‘person’ rather than an ‘identity’ and that accordingly the applicant held the visa on entry to Australia.
Consequently the MRT formed the view that the applicant held a substantive visa upon her entry to Australia on 4 July 2008, which expired on 4 October 2008, and that she ceased to hold a substantive visa on that date. Accordingly, the MRT found that cl.3004(a) was the relevant provision in this case.
The MRT went on to consider whether the applicant met cl.3004(f) of the Regulations, and whether she would have been entitled to the grant of a Class UC visa, being a subclass 456 or a 457 visa, if she had applied on 4 October 2008.
As the applicant was applying for a Class UC visa in Australia, the relevant visa was a class 457 visa as opposed to a class 456 which applied the applicant to have made an application from outside Australia.
The MRT found on the basis of the applicant’s evidence, that on 4 October 2008, being the last day she held a substantive visa, she did not have an Australian business proposing to employ and sponsor her. In the circumstances, the applicant would not have been entitled to be granted a subclass 457 visa had she applied at that time.
As at 17 September 2012, when the applicant lodged her most recent application for a 457 visa, she was required to satisfy the criteria set out in item 3004 of Schedule 3 to the Regulations.
As stated above, the MRT found that the applicant had ceased to hold a substantive visa on 4 October 2008. In accordance with cl.3004(f)(i), the applicant was required to have been entitled to a 457 visa on the day that the applicant last held a substantive visa. As stated above, the applicant was not entitled to a 457 visa as at 4 October 2008 because she had no sponsor for that application and such a criterion was mandatory for the grant of a 457 visa at that time.
The MRT concluded that it was not satisfied that the applicant would have been entitled to a grant of a visa of the class for which she had applied on the last day she held a substantive visa, as she did not meet cl.3004(f). As the applicant did not meet the mandatory criteria in item 3004, she did not satisfy cl.457.211 of Schedule 2 to the Regulations and her visa application must be refused in accordance with s.65 of the Act.
Finally, the MRT briefly considered the applicant’s claims that:
a)She had fled persecution in China and feared persecution in the future on the basis of her Korean ethnicity;
b)She feared being returned to North Korea from China;
c)She had been prevented from making a visa application in Australia by her fear, her lack of financial resources, and her ignorance of Australian law; and
d)She was suffering psychological problems as a result of her detention and that she was of value to her sponsor as an employee.
The MRT noted that while such claims may be relevant to assessing whether cl.3004(c) and (d) were met. However, as it had already determined that the applicant did not meet cl.3004(f), it was not necessary to determine these issues in the current application.

The proceeding before this Court

The applicant was represented before this Court by Mr David Mendelssohn, solicitor.
On 14 June 2013, the applicant was represented by Mr David Mendelssohn at a directions hearing before me. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the MRT hearing, as well as submissions in support. At the directions hearing, the applicant was also provided with a copy of the applicable costs schedule of the Court.
On 1 August 2013, the applicant filed an amended application identifying the following grounds:
“1. The Tribunal denied the applicant procedural fairness in denying her then representative to assist the applicant in presenting her case.
Particulars of Ground 1
(a) The applicant is not fluent in the English language to the point of being able to properly present her case to the Migration Review Tribunal and had to try to do so through an interpreter.
(b) She was not aware of the way in which the Migration Review Tribunal processes applications nor was she in a position to properly present the facts on which she relied.
(c) In this respect, the Tribunal should have allowed the Applicant the services of a Registered Migration Agent who could have properly presented the Applicant’s case but this was denied by the Tribunal.
2. The Tribunal denied the applicant procedural fairness in not allowing her the opportunity to properly consider her legal position, given her limited facility in the English language.
Particulars of Ground 2
(a) The Applicant speaks the North Korean dialect of the Korean language, which is not in many respects the same as the South Korean dialect so that even a competent speaker of the South Korean dialect may have some difficulty in always being able to properly understand and translate for the Applicant.
(b) The Applicant needed a competent translator in the North Korean dialect to properly allow her to consider her legal options with the advice of a Registered Migration Agent who could advise her.
3. The Tribunal failed to determine the Applicant’s application for the review according to law, in taking a view of the Migration Act and Regulations that was unnecessarily limited and constricted and which fitted with a tribunal member’s personal views rather than a comprehensive view of the relevant law.
Particulars of Ground 3
(a) The Tribunal Member failed to give proper consideration to the reasons why the Applicant was forced to enter Australia on a false passport and failed to take into consideration the situation in the People’s Republic of China of persons of North Korean origin who did not have substantial economic means.
(b) The Tribunal Member therefore regarded the Applicant as being no different to any other unlawful entrant to Australia and this constituted a failure to afford the Applicant procedural fairness.
(c)The Tribunal Member therefore failed to afford the Applicant procedural fairness by taking a personally subjective view of the Applicant’s actual circumstances.
(d) The Tribunal Member also failed to afford the Applicant procedural fairness in not recognising the factual circumstances in which the Applicant found herself subsequently in Australia, having to find work in order to support herself.
(e)The Tribunal Member also failed to give proper consideration to the fact that the Applicant had an approved 457 Visa sponsor and effectively discounted this important consideration.
4. The Tribunal failed to determine the Applicant’s application for review according to law by failing to take into consideration the Applicant personal circumstances and the likely consequences for the Application if repatriated to the Peoples Republic of China and from there to the Democratic People’s Republic of Korea, otherwise known a North Korea.
Particulars of Ground 4.
(a) It is now well known that, even though the Government of the Peoples Republic of China has at best a tense relationship with the Government of the Democratic Peoples Republic of Korea, otherwise known as North Korea, it nevertheless has a policy of repatriating to North Korea persons of North Korean origin who are, in one way or another, in the territory of the Peoples Republic of China.
(b) There is also now a considerable body of independent evidence that persons so repatriated are treated with the greatest harshness, even in some cases being executed but frequently subjected to torture, as they are considered to be traitors to North Korea for having left that country, even in the case of the Applicant, who was an infant of approximately one year of age when her family took her from North Korea to China.
5. The Tribunal failed to determine the Applicant’s application for Review according to law by failing to properly consider whether the Applicant was entitled to the Subclass of Visa for which she applied under the provisions of the Migration Act and Regulations to which the Tribunal Member did not Advert.
Particulars of Ground 5
(a) The Tribunal failed to give proper consideration to the fact that the Applicant could be employed and was offered employment by an approved 457 employer in an occupation for which the Applicant was fitted by her training and experience, that is, in the occupation of tiling.
(b) Had the Tribunal given proper consideration to that fact instead of merely noting and dismissing it without proper consideration, the Tribunal should have come to a different view of the Applicant’s case for review.
6. The applicant is in fact entitled to a temporary business entry (Class UC) visa in in accordance with the relevant provisions of the Migration Act and Regulations.
Particulars of Ground 6
(a) As already stated in the Particulars for Ground 5, The Applicant has an approved 457 employer who can and will employ her if she is granted the appropriate visa, which in this case is a Temporary Business Entry (Class UC) Visa.
This employer will employ the Applicant in the occupation for which her training and experience make her competent, that is tiling. ”
At the hearing, the applicant was represented by Mr Mendelssohn.
Mr Mendelssohn read an affidavit of the applicant affirmed 30 July 2013 without objection.
The first respondent tendered a bundle of relevant documents identified as ‘relevant documents’ filed on 4 June 2013, which together were marked Exhibit 1R.
Following discussion of the relevant legislative scheme, Mr Mendelssohn confirmed that the applicant’s complaint was encapsulated as follows:
“Whether the MRT should have considered the consequences for the applicant of repatriation to North Korea in considering cl.3004(d) as to whether there were compelling reasons to grant the visa.”
Mr Mendelssohn did not otherwise press any of the grounds of the amended application and confirmed that the only complaint relied upon by the applicant was as stated above.
Mr Mendelssohn accepted that the applicant was required to meet all of the criteria referred to in item 3004 of Schedule 3 to the Regulations. Mr Mendelssohn conceded that any failure by the applicant to meet any of the criteria had the consequence that the applicant’s application for the 457 visa must be refused. The Court was grateful to Mr Mendelssohn for seeking to confine and encapsulate the applicant’s complaint.
Item 3004 makes clear that in addition to there being compelling reasons for granting the 457 visa, the applicant must have been entitled to be granted a 457 visa if she had applied for that visa on 4 October 2008, being the date when she last held a substantive visa.
As stated above, the MRT found that the applicant would not have been entitled to the grant of a 457 visa on 4 October 2008, being the day on which the applicant last held a substantive visa because as at 4 October 2008, the applicant did not have the sponsorship required for the grant of a 457 visa.
The MRT’s findings were open to it on the evidence and material before it and for the reasons it gave.
In the circumstances, it was not necessary for the MRT to consider whether there were compelling reasons for granting the 457 visa given that the applicant was unable to satisfy all the mandatory criteria necessary for the grant of a 457 visa.
In the circumstances, the applicant’s complaint is not made out.

Conclusion

A fair reading of the MRT’s decision record makes clear that the MRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support, including submissions prepared and provided to the MRT by the applicant’s migration agent. The MRT set out carefully and comprehensively the relevant legislative scheme applicable to the applicant’s application for a 457 visa. The MRT then made findings based on the evidence and material before it. Those findings of fact were open to the MRT on the evidence and material before it and for the reasons it gave. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 2 September 2013