Rhee v Minister for Immigration & Anor
[2007] FMCA 23
•16 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RHEE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 23 |
| MIGRATION – Visa – sub-class 442 (Educational Temporary) (class TH) visa – Migration Review Tribunal – application for review of MRT decision affirming a decision of a delegate of the Minister not to grant the applicant a visa – where applicant did not provide comments in response to letter from the Tribunal under Migration Act 1958 (Cth) s.359A – no reviewable error. PRACTICE & PROCEDURE – Adjournment – application for adjournment refused – where applicant had ample time to arrange legal representation. |
| Migration Act 1958 (Cth), ss.359A, 359C |
| Applicant: | MAN GWOUN RHEE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2432 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 January 2007 |
| Date of Last Submission: | 16 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 January 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2432 of 2006
| MAN GWOUN RHEE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Migration Review Tribunal. The decision was made on 29th June 2006. The Tribunal affirmed the decision of a delegate of the Minister finding that the visa applicant was not entitled to the grant of an (Educational Temporary) (Class TH) visa. The applicant seeks a review of that decision and in particular seeks a declaration that the decision by the Tribunal was made in excess of jurisdiction and is therefore null and void. He also seeks an order that the Court should remit his application to the Migration Review Tribunal to be redetermined according to law.
The background of this matter is that the applicant arrived in Australia on 7th April 2004. On 5th October 2004 he applied for an occupational training visa. He was nominated by a company called the Tomato Cleaning Company which lodged a nomination for occupational training on 5th October 2004. A delegate of the Minister refused the application on 1st June 2005. The Tribunal sets out at page 76 of the Court Book that the delegate refused the nomination because the delegate was not satisfied that occupational opportunities available to Australians citizens or permanent residents would not be adversely affected if the visa were granted.
The applicant applied to the Migration Review Tribunal for a review of this decision on 4th July 2005. The Tribunal wrote to the applicant on 6th March 2006. A copy of that letter appears at pages 68 and 69 of the Court Book. The letter stated that s.359A of the Migration Act set out certain things that the Tribunal must do. In particular 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 Tribunal's letter invited the applicant to comment in writing on two pieces of information. Those pieces of information are as follows:
The Commonwealth is not providing a nomination in respect of your occupational training. A nomination in respect of your occupational training lodged by Tomato Cleaning Company was refused on 1st June 2005.
The letter went on to explain that that information was relevant to the review because without an approved nomination in respect of the occupational training, or a Commonwealth nomination in respect of the occupational training, the applicant could not satisfy the relevant criteria for the grant of a sub-class 442 visa. The letter asked the applicant to provide written comments within 28 calendar days of the date of notification. The letter went on to explain that the date when the applicant would be considered to have been notified was seven working days after the date of that letter.
The letter set out that if the applicant were unable to provide his comments in writing within that time he may apply for additional time in which to apply. The letter went on to set out this warning:
If the Tribunal does not receive any comments within the period allowed or as extended it may make a decision on the review without taking any further action to obtain your comments or to invite you to appear before the Tribunal.
The Tribunal recorded that it did not receive any reply to its letter.
The applicant told the Court that he could not remember whether he received that particular letter or not. He did recall receiving a letter from the Tribunal but could not understand the content. The Tribunal went on to make its decision on the review without any appearance by the applicant. A copy of the Tribunal decision record appears on pages 74 through to 78 of the Court Book. The Tribunal in its decision referred to the history of the matter and referred to the letter sent to the applicant on 6th March 2006.
The Tribunal went on to note that as it had received no answer, and the applicant had failed to provide any comments within the prescribed time frame, the Tribunal had proceeded to make a decision under s.359C of the Migration Act. The Tribunal's findings are set out on pages 76 to 78 of the Court Book. The Tribunal noted that the criteria that had to be satisfied at the time of decision and noted the criteria for consideration for whether the nominee appeared to be a genuine occupational trainee.
The Tribunal referred on pages 77 and 78 of the Court Book to the lack of evidence in this case. The Tribunal referred to the fact that there was no evidence as to what the applicant's proposed training program would consist of nor was there any evidence or detail as to what training that the nominator would provide. The Tribunal said that without any detail or evidence in relation to the training of the applicant, the Tribunal could not find that the nomination should be approved because the Tribunal found that the nomination for an occupational trainee visa does not satisfy the criteria in clause 442.223.
The Tribunal also found that due to lack of evidence that the applicant was not subject to an approved nomination and was not a genuine applicant for entry to Australia as an occupational trainee because the applicant did not meet the criteria and in clauses 442.222 and 442.224. The Tribunal affirmed the decision of the delegate and found that the applicant was not entitled to the grant of an (Educational Temporary) (Class TH) visa.
The applicant commenced proceedings for judicial review in this Court by filing and application on 31st August 2006. That application was accompanied by an affidavit. The application set out three grounds for relief.
(1)The Tribunal erred in law and thereby fell into jurisdictional error and acted without jurisdiction in the making of the decision.
The Tribunal did not make a review on the nominator's application.
The Tribunal did not assess the information and documents submitted by the nominator.
The application came before this Court on 9th October 2006. At that time I made directions for hearing and listed the application for final hearing today. Those directions included directions as to the filing of written submissions and any other relevant documentation. No further documents have been filed by the applicant or on the applicant's behalf. The applicant attended Court today with the assistance of an interpreter in the Korean language. He applied for an adjournment on the basis that his legal advisor was not present and he had not been able to contact his legal advisor.
He told the Court that through an intermediary he had instructed a lawyer to appear for him shortly after the first Court date on
9th October. He was not sure whether the lawyer was a barrister or a solicitor and was not sure where the lawyer’s chambers or office were. He explained that due to the language difficulty all his communications with the lawyer had been through a friend. He told the Court that he contacted the lawyer before Christmas to double check but had not been able to make contact with him since. He was unable to explain why the lawyer had not filed any documents at Court and he did tell the Court that he had not yet paid the lawyer any money.
The lawyers for the Minister opposed an adjournment in the circumstances. They of course had counsel briefed and were ready to proceed with the hearing. I refused the application for an adjournment. I have taken the view that the applicant has had ample time to arrange legal representation. He may well have seen a lawyer, but the fact that the lawyer has not taken any steps to comply with the pre-hearing directions that I made, nor has the lawyer filed any document indicating that he is acting for the applicant, does not give me any confidence in the applicant's assertion that he has instructed a lawyer to appear for him in these proceedings. Accordingly, I refuse the adjournment.
The solicitors for the Minister have, with the assistance of their counsel, filed a written outline of submissions. Those submissions, to my mind, more than adequately set out the situation regarding this application for judicial review. I propose therefore to refer to them in my decision as the reasons given in the submission appear to me to be a correct summary of the relevant law and appear also to be factual and correct. The particular paragraphs which I consider to be relevant are paragraphs 6 through to 9 inclusive and I propose to incorporate them in my reasons, complete with their original paragraph numbers.
(6)There are three grounds in the application. First that the Tribunal erred in law and so fell into jurisdictional error. This ground has no particulars and so ought to be rejected. The second ground is that the Tribunal did not make a review on the nominated application. The third ground is that the Tribunal did not assess the information and documents submitted by the nominator.
(7)The second ground ought to fail because it is clear, on the face of the Tribunal's record, that the Tribunal did assess the nominator's application. It stated at Court Book 77, paragraph 19:
In the case of the visa refusal decision under review, it is the refusal to approve the nomination of the proposed occupational training that constitutes the issue in dispute.
(8)In paragraph 22 of its decision at Court Book 77 the Tribunal expressly deals with the application for nomination and rejects it on the basis of lack of evidence and detail as to the training that would be provided.
(9)The third ground ought to be rejected for two reasons: first, because the Tribunal expressly referred to the information before it, and to which it had regard, which included the Department case file OPF2005-004835 folio numbers 1 to 48. It is clear from the delegate's decision in respect of the nominations; see Court Book 55 to 58, that this file number related to the application by the nominator for approval as nominator of the applicant. The handwritten folio numbers at the top right-hand side of the page confirm that the Tribunal did have regard to these pages. Secondly, the documents contained in that file (being apparently the only documents provided by the nominator in respect of the application for approval) had no bearing whatsoever on the type of training to be given to the applicant.
The critical issue for the Tribunal was the question of training.
The material provided by the nominator is irrelevant, thus the Tribunal was entitled to say, as it did, that there was no detail or evidence in relation to the training. In my view, the submission correctly analyses the issues before the Court. The applicant has not made out any jurisdictional error by the Tribunal. I have read through the material myself, mindful of the fact that the applicant has not been legally represented today, and I am unable to discern any arguable case for jurisdictional error.
I am satisfied that there is no jurisdictional error and thus the decision is a privative clause decision and the application will be dismissed.
There is an application for costs and the applicant has been wholly unsuccessful in his claim and in my view it is an appropriate matter for the Minister to be entitled to a costs order. The amount sought is $5,000.00 which is an appropriate figure according to the Court rules.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 17 January 2007
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