Sakhno v Minister for Immigration and Citizenship
[2007] FMCA 1492
•6 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAKHNO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1492 |
| MIGRATION – Visa – Business Skills (Residence) (Class BH) visa – Migration Review Tribunal – application for review of MRT decision affirming decision of a delegate of the Minister refusing to grant a visa – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth) ss.46, 55, 65, 359A, 474(2) Migration Regulations 1994 reg.2.07, 840.216, 840.222, 841.214 |
| Ahmed v Minister for Immigration (2005) 143 FCR 314 Minister for Immigration & Multicultural Affairs v Li (2000) 103 FLC 406; (2000) 103 FCR 486 SZECD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 31; (2006) 150 FCR 53 Uddin v Minister for Immigration (2005) 149 FCR 1 Yilmaz v Minister for Immigration (2000) 100 FCR 495 Zubair v Minister for Immigration (2004) 139 FCR 344 |
| First Applicant: | OLEG VIKTOROVICH SAKHNO |
| Second Applicant: | MARGARITA VLADIMIRONA SAKHNO |
| Third Applicant: | KARINA SAKHNO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2821 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 February 2007 |
| Date of Last Submission: | 15 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Killalea |
| Solicitors for the Applicant: | Chancellor & Rados |
| Counsel for the Respondents: | Mr Bromwich |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The first applicant is appointed litigation guardian of the third applicant.
The title of the first respondent is changed to Minister for Immigration & Citizenship.
The application is dismissed.
The applicants are to pay the first respondent’s costs fixed in the sum of $8,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2821 of 2005
| OLEG VIKTOROVICH SAKHNO |
First Applicant
| MARGARITA VLADIMIRONA SAKHNO |
Second Applicant
| KARINA SAKHNO |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for a review of a decision of the Migration Review Tribunal (“the Tribunal”), dated 26th September 2005.
The Tribunal affirmed the decision under review finding that the three applicants were not entitled to the grant of Business Skills (Residence) Class (BH) visas. The applicants seek the following:
a)A writ of certiorari directed to the second respondent, the Migration Review Tribunal, quashing the Tribunal's decision;
b)a writ of mandamus directed to the second respondent requiring the Tribunal to determine the application for review according to law; and
c)costs.
The applicants are a husband and wife and their daughter, who was born on 9th November 1991. The second and third applicants rely on the application of the first applicant. The third applicant is a minor.
At the outset of the hearing I appointed the first applicant as litigation guardian of the third applicant. I also note that the title of the first respondent, the Minister, has now changed to Minister for Immigration & Citizenship, and I propose to make an order reflecting that fact.
The applicants are citizens of the Russian Federation. The first applicant applied for a Business Skills (Residence) Class (BH) visa on 24th May 2002. His application included his wife and daughter, who are the second and third applicants.
A delegate of the Minister, then the Minister for Immigration & Multicultural & Indigenous Affairs refused the application for visas on 13th March 2003. The delegate found that the first applicant failed to meet the requirements of regulations 840.216 and 840.222.
The delegate found that the first applicant did not notify the appropriate regional authority of a State or Territory of his business history and his intention to develop a business in that State or Territory.
The applicant was found not to satisfy regulation 840.222(1) because his main businesses did not have at least $500,000.00 in turnover in each of any two of the four fiscal years immediately preceding the making of the application. Thus, the applicant could only achieve a maximum of 95 points under the points test. To satisfy the points test the first applicant had to achieve a minimum score 105 points.
The delegate stated:
As I stated above in the legislative framework section, applicants for these sub classes of visa must satisfy all the requirements set out in the Migration Act and regulations to be granted a business skills Residence visa. In view my findings of fact in the assessment above, and that the applicant has failed to meet the requirements of regulations 840.216 and 840.222(1). As these criteria have not been satisfied I have not considered the other criteria prescribed for this visa sub class. As the applicant fails to meet all prescribed criteria for the grant of a sub class 840 visa I find that his application must be refused.
As the turnover for Colonial Trading Number 2 Proprietary Limited was less than $10 million I find that the applicant fails to meet division 1.2 and, therefore, the points tests for sub classes 841 and 843.
As Mr Sakhno has not obtained sponsorship from an appropriate regional authority I find that he, therefore, fails to meet 842.216. Therefore, I find that Mr Sakhno fails to meet the requirements of sub class 842. As Mr Sakhno has not made a designated investment as required by 844.222 I find that he, therefore, fails to meet division 1.3 and, therefore, the points test for sub class 844. As Mr Sakhno has spent only 43 days in Australia in the 12 months immediately preceding the making of the application which I find to be less than nine months, I find that the applicant fails to meet the requirements of regulation 845.212. Therefore, I find that Mr Sakhno fails to meet the requirements of sub class 845. As Mr Sakhno has not obtained sponsorship from the New South Wales Department of State & Regional Development I find that he fails to satisfy division 1.5 of the Business Skills Points Test and, therefore, the requirements of sub class 846.
As the applicant does not meet the requirements of any sub classes 840 to 846, I therefore have decided to refuse Mr Sakhno the grant of a Business Skills (Residence) Visa. As I have refused Mr Sakhno a visa I also refuse his spouse, Margarita Vladimirovna Sakhno and his daughter, Karina Sakhno a Business Skills Residence Visa.[1]
[1] See Court Book page 448
The applicants applied to the Migration Review Tribunal for a review of the delegate's decision on 26th March 2003. In the application for review the first applicant stated:
We do not necessarily contest that DIMIA decision was incorrect. We rather submit that it was made in absence of certain financial documents re the main business and its operations. We are currently taking steps to have the financial statements ready for your consideration in due time.[2]
[2] Court Book at 455
The Tribunal wrote the applicant's migration agent on 30th September 2004. The letter was headed “Invitation to Comment on Information”, and referred to the provisions of s.359A of the Migration Act 1958 (Cth) (“the Act”). The matter invited the applicants to comment on this information:
The department's file reveals that in the letter dated 27 September 2002, the delegate requested Mr Sakhno provide, among other things, form 927 signed by an appropriate regional authority. Information on the department's file indicates that Mr Sakhno did not provide form 927 signed by an appropriate regional authority. This information is relevant to the review for the following reasons: to be granted a sub class 840 visa the primary visa applicant must meet the primary criteria set out in page 840 of schedule 2 to the regulations. The above information shows that Mr Sakhno, the primary visa applicant, may not satisfy the criteria in clause 840.216 at the time of application.
To satisfy the criteria in clause 840.216 at the time of application Mr Sakhno had to notify the appropriate regional authority or a State or Territory of his business history and his intention to develop a business in that State or Territory. The above information does not include information that you gave the Tribunal for the purpose of the application or information that, under the Act, is non disclosable.[3]
[3] Court Book at 460-461
The Tribunal invited the applicant to provide written comments within 28 calendar days of the date of notification of the invitation.
The member went onto advise the applicant that if he was unable to provide comments within that period he may request in writing that he be allowed additional time in which to respond.
A further copy of that letter was sent to the applicant's migration agent on Thursday, 28th October 2004. The letter was identical in its terms except that before the heading it had these words added:
This letter has been sent to you as requested by Mr Oleg Viktorivich Sakhno.
The applicants' solicitor, I. Rados and Associates, replied to the Tribunal on 8th November 2004. In that letter they advised that they had been appointed to act for the applicant and enclosed the appropriate forms showing that they had been appointed as his representative. They went on to say, relevantly:
Our client has presented to us a copy of your letter, dated 28 October 2004. We note the deadline given for our client to respond is 6 December 2004. Our client requires our timely advice, which in the absence of the perusal of all final material cannot be provided. Accordingly, as per the enclosed requests for access forms, we ask that an appointment be made as a matter of urgency for an inspection of all files. As our client requires our timely advice our client hereby applies for an extension of time. Our client requests a further 28 days from 6 December 2004.[4]
[4] Court Book at 465
The applicant's lawyers again wrote to the Tribunal on 12th November 2004. In that letter they referred to their previous letter and said:
We enclose herewith certified copy of form 927 signed both by the applicant and by the New South Wales Department of State and Regional Development.[5]
[5] Court Book at 469
The letter did, indeed, contain a form 927 duly signed. The applicant's solicitors again wrote to the Tribunal on 6th December 2004.
They referred to their earlier letters and said:
We note by your letter, dated 28 October 2004, that the lack of a form 927 at the time of application is an issue before the Tribunal. We advise that the Tribunal in another case handed down a decision today with the same issue. The decision was favourable. The review applicant failed, through no fault of her own, to include a form 927 at the time of application. The form was served on the DIMIA during review of the Tribunal.
The Tribunal found that certain criteria under sub class 840 were met and remitted the application to DIMIA to reconsider other criteria. The case reference MRT, file number N01-07159. In our view the decision handed down today in NO1-07159 established a precedent whereby the omission of a form 927 at the time of application does not necessary preclude an application from favourable consideration by the Tribunal and ensuing favourable reconsideration by the DIMIA.[6]
[6] Court Book at 472
On 16th December 2004, the applicants' solicitors again wrote to the Migration Review Tribunal referring to all three of their previous letters. They maintained their submission that the late lodgement of form 927 did not necessarily preclude an application from favourable consideration stating the reason was that DIMIA was open to accepting late lodgements of form 927. They referred to other cases and enclosed an email message from one Monica Siu, manager Business Skills Unit, DIMIA, Hong Kong, dated 2nd April 2004.
The Tribunal wrote to the applicant on 5th April 2005. The Tribunal invited the applicant to appear for a face to face hearing at 1:30 pm on 13th May 2005. The applicant's solicitors wrote on 19th April 2005 and asked if the hearing could be rescheduled at a more suitable time after 18th June 2005, because the applicant was in Russia on business and was not due to return until around that time.
The Tribunal acceded to this request. The Tribunal wrote to the applicant on 18th May 2005, advising that the Tribunal had set down a face to face hearing for 12:00 noon on 22nd July 2005, with an interpreter in the Russian language. The applicant's solicitors wrote on 23rd June 2005 advising that their client would depart Australia on
27th June and it was possible that he would not be able to return to Australia in time for the hearing.
The hearing, in fact, took place, which was attended by the applicants' migration agent, Mr Rados, and by the second applicant and the first applicant gave oral evidence with the assistance of an interpreter in the Russian language. The second applicant, the wife, gave evidence in support of the application.
The Tribunal handed down its decision on 26th September 2005.
A copy of the decision record can be found at page 495 through to 503 of the Court Book. The Tribunal set out on pages 497 to 500 a summary of the evidence. The Tribunal's findings and reasons can be found at pages 500 through to 502.
The Tribunal in its findings and reasons referred to various subclasses of (Class BH) Business visa, and noted that the only subclass in respect of which he claims had been advanced were subclass 840, that of business owner. The Tribunal said:
In this matter the criterion specified at clause 840.216 is in issue. That clause is one which applied at the time of application and requires that the applicant has notified the appropriate regional authority of a State or Territory of (a) the applicant's business history; and (b) the applicant's intention to develop a business in that State or Territory.
The appropriate regional authority for the purposes of the clause at the time of application was the Business Migrant and Information Service of the NSW Department of State and Regional Development as specified in the Gazette notice 35 of 1 September 1999. This remains the case by virtue of Gazette notice 29 of 29 June 2005 with affect from 1 July 2005.
There is no evidence that any notification of the review applicant's business history or intention to develop a business ever took place prior to the form completed on 5 November 2004. There was some discussion at the hearing that the review applicant's former adviser may have made the relevant notification, however, there has been no evidence produced that satisfies that this was the case. The difficulty in this matter is that a request was made for the notification to occur during the processing of the application before the department and this did not occur.
The review applicant contends that, in fact, this was the fault of his former agent and he was unaware that any such request was made until the application was refused. He contends that now having completed the relevant form he has complied with the requirements and as such the matter could be remitted to the department. In the Tribunal's view, it is not possible now to find that the criterion prescribed as clause 840.216 has been satisfied. The requirement is one which applies at the time of application. The review applicant's current advisor has apparently identified some flexibility in how this matter has been interpreted in past cases both before the department and the Tribunal.[7]
[7] Court Book at 500-501
The Tribunal went on to say:
In this matter, however, a request to the appropriate person nominated by the review applicant was made for evidence of the notification before a decision was taken by the delegate. The delegate, having not received evidence of the notification took decisions relating upon failure to satisfy that criterion as one basis for determining that a visa could not be granted under section 65 of the Act. The review applicant, through his advisor, has submitted authority pointing to the fact that the Tribunal is not bound by legal forms or technicalities, and that the rules of evidence do not apply.
The Tribunal does not read those authorities to authorise the Tribunal's to depart from the clearly intended meaning of the regulations because of an error by an agent or the review applicant themselves. In this matter the review applicant did not at the time of application or when a request was made to supply evidence of the relevant notification having occurred.
The correctness of other decisions is not before the Tribunal in respect of this matter.
The criterion described at clause 840.216 calls for a clear determination in the finding of fact, that is, at the time of application the applicant had notified in any way the appropriate regional authority. While the form 927 is the usual form of this notification evidence of other forms of notification may well suffice. There is no such evidence in this matter.[8]
[8] Court Book at 501
The Tribunal went on to find that the applicant had failed to meet the criterion prescribed at clause 840.216 as a result he could not meet the prescribed criterion for the ground of a subclass 840 visa and, therefore, the grant of such a visa to him must be refused under s.65 of the Act. No members of his family unit, therefore, could meet prescribed secondary criteria for the visa sought and it was not evidenced that any of them would independently meet the criterion for the visa. As such each of them had to be refused the ground of a subclass 840 visa.
The Tribunal considered other subclasses being subclass 841, subclass 842, subclass 843, and subclass 846 but found that the applicant has not notified the appropriate regional authority or State or Territory and his business history and intention to develop a business in that State or Territory at the time of application. The Tribunal noted that in respect of a subclass 844 investment link visa there was no suggestion that a designated investment would be made, and in respect of subclass 845 (established business in Australia) the review applicant was not in Australia as a holder of a temporary substantive visa for at least nine months during the period of 12 months immediately preceding the making of the application.
The Tribunal formed the view that no visa applicant satisfied the criteria prescribed for any (Class BH) visa and that each must be refused the grant of such a visa, and the Tribunal affirmed the decision under review finding that the visa applicants were not entitled to the grant of Business Skills (Residence) (Class BH) visa.[9]
[9] Court Book at 502
The applicants sought judicial review of that decision by means of an application, filed on 4th October 2005. The applicants filed an amended application on 28th August 2006, and the second amended application on 9th February 2007. The application was listed for final hearing on 15th February 2007, when the applicant sought and was granted leave to file a third amended application. In that application the applicant sought the following orders:
(1) that a writ of certiorari issue;
(2) that a write of mandamus issue;
(3) Costs.
The amended application sets out the grounds upon which the applicant claim the Tribunal fell into jurisdictional error.
(1) the MRT failed to attain or failed to exercise jurisdiction by reason that the MRT erred in law in finding, in relation to (1) subclass 840, that the applicant had failed to meet criterion 840.216 and/or (2) subclass 841 that the applicant had failed to meet criterion 841.214 when the applicant did meet the criteria respectively.
(2) The MRT failed to attain or failed to exercise jurisdiction by reason that the MRT erred in law in finding in relation to subclasses 842, 843, 846, that the applicant had "not notified the appropriate regional authority of the State or Territory at the time of application" and therefore, "failed to satisfy the criteria prescribe" when there was no requirement to do so and the MRT otherwise failed to consider whether the criteria of the subclasses was met by the applicant.
(3) The MRT failed to attain or failed to exercise jurisdiction by reason that the MRT erred in law in finding in relation to subclass 844 that implicitly the applicant was required to and had failed to designate the investment when there was no such requirement to do so.
The applicants had filed an outline of submissions which originally sought to rely on the second amended application which, of course, was replaced by the third amended application. The applicants prepared submissions in reply in response to the respondent's outline of submissions, filed on 12th February 2007.
For the applicants Mr Killalea of counsel, relied in part upon the original outline of submissions, and in part on his submissions in reply. He submitted that in respect of the first ground that the rationale for the Tribunal's findings, which were set out by the Tribunal at paragraph 38 of the Tribunal's decision at page 501 of the Court Book, may be paraphrased as a finding that the form 927 or some equivalent had to be provided to the delegate at the time of application being a time at least prior to a decision being made by the delegate.
He submitted that the Court should consider the decision of SZECD v Minister for Immigration & Multicultural & Indigenous Affairs[10], and although that decision referred to the Refugee Review Tribunal the submission goes that the RRT was the review body subject essentially in respect of the validity of applications before it, the same statutory regime as the MRT.
[10] [2006] FCA 31 at [25]
In SZECD the Court said:
Yilmaz[11] and the cases which have followed that concern circumstances where the visa application was valid by the time it was considered by the Tribunal but invalid at the time of consideration by the delegate. Li determined that the application does not become valid if additional material is submitted to the Tribunal and not to the department. However, Giles J in Yilmaz specifically referred to that situation and drew no distinction. The respondent relies also upon Zubair which followed Yilmaz (to which I would add Minister for Immigration & Multicultural & Indigenous Affairs in Ahmed (2005) 143 FCR 314; and Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218. They are authority for the proposition that a decision of the delegate invalid for its examination of an application that had been valid due to failure to comply with the requirements of the Act is a decision capable of being reviewed by the Tribunal. The defects are 'cured' upon merits review. The court in Uddin and Zubair endorsed the application of the principles in Lawlor.
[11] Meaning Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495
Mr Killalea submitted that that view may be supported by reference to s. 55 of the Act which allowed the further material to be provided to the Minister for consideration between the time of lodging an application and that application being considered and determined by the Minister. The Tribunal, he submitted, was required to consider the form 927 which the Tribunal received on 15th November 2004 in the context of the requirement of clause 840.216 and 841.214. He submitted that the Migration Review Tribunal failed to do so and its decision to refuse to grant (Class BH) subclasses 840 Business Owner and 841 Senior Executive visas and therefore reviewable accordingly for jurisdictional error.
In respect of ground 2, Mr Killalea submitted for the applicants that the Tribunal affirmed the delegate's decision in respect of subclasses 842, 943, and 946, on the basis that the applicant had not notified the appropriate regional authority of the State or Territory in his business history, and intention to develop a business in that State or Territory at the time of application. In making that decision, it is submitted, the Tribunal has re-stated the criterion for the grant of (Class BH) subclass 841 visas, clause 840.216, being also the like criterion for the grant of a BH subclause 841 visa, clause 841.214. He submitted that that criterion is not a criterion in like terms to be satisfied for the grant of a (Class BH) subclass 842, 943, 846 visa.
Accordingly, he told the Court the Tribunal erred in finding that none of the visa applicants satisfied the criteria prescribed for any (Class BH) visa. In respect of ground 3, which related to subclass 844, Mr Killalea submitted that the Tribunal had affirmed the decision in respect of subclass 844 on the basis that there was no suggestion that a designated investment would be made and given those conclusions it was the view of the Tribunal that no visa applicant satisfied the criteria prescribed for any (Class BH) visa.
Mr Killalea submitted for the applicant that at the relevant time the department's procedures advice manual (3) schedule (2) Investment Link visa 131 provided as follows:
4.2.2 note that for the reasons set out in para.9.2.1, under no circumstances should applicants select a designated investment until invited by an assessing officer to do so. 9.2.1 briefly an invitation to the applicant to select a designated investment should be the final stage of processing the visa application. Officers are not to invite applicants to select and make a designated investment until:
. the applicant has been assessed as having satisfied all 1.3.21 criteria:
. the applicant and family members have been assessed as having satisfied generic criteria, i.e., relating to relationships, public interest, custody of minor children, etcetera;
. officers are satisfied that the applicant will satisfy the remaining visa specific criteria (including the schedule 7 points test) if a designated investment (in the amount nominated by the applicant) is make.
Accordingly, Mr Killalea submitted that in light of the policy direction at 9.2.1 no cogent reasons being given to depart from that policy, it was not open to the Tribunal to affirm the delegate's decision for the stated reason if there was no suggestion that a designated investment would be made.
Counsel for the first respondent Minister, Mr Bromwich, submitted that the Tribunal was plainly correct and had not committed any jurisdictional error. As to ground 1, he submitted that the ground was wholly misconceived and entailed both a misreading of the relevant provisions and a misreading in this application of the case law.
The "time of application" criterion does not involve a question of validity of the application for the visa, but rather a required factual state of affairs which must exist in order for an application to be granted. If it is not met, the application is unsuccessful rather than invalid. He went on to submit that the cases to which the applicant refers must be approached with some caution. They were Zubair v Minister (2004) 139 FCR 344; Ahmed (2005) 143 FCR 314; and Uddin (2005) 149 FCR 1. There were visa cancellation cases concerned with statutory procedural fairness requirement as a pre condition to the exercise of the power of cancellation.
The validity in issue in those cases was not the validity of a visa application, but rather the validity of a document giving notice as a pre condition to the exercise of power. The live issue in those cases was whether the failure on the part of a delegate to meet a statutory procedural fairness pre condition for the exercise of the cancellation power could be "cured" at the Tribunal stage. The law arising from those cases is that it can be cured.
Mr Bromwich submitted that the cases of Yilmaz[12] and SZECD[13] also need to be approached with caution. In the matter of Yilmaz, Giles J had said at [83] that the phrase:
After considering a valid application for a visa in section 65 of the Migration Act did not form part of the conditions for the exercise of the power but rather was the assumption upon which the section proceeds.
[12] (2000) 100 FCR 495
[13] (2006) 150 FCR 53
His Honour, at [93], interpreted s.65 as permitting an invalid application before a delegate to be made valid after the delegate's decision but with the reservation that a Tribunal could not ignore statutory constraints and could not make a valid decision that was not authorised by the Act or regulations.
In this case, once the delegate had made the decision and whatever may be said about the concept of "time of application" that time had passed and could not be changed at a later as a state of affairs by what took place before the Tribunal. He also submitted that the basis for validating a previously invalid application was that additional information was provided to the department albeit after the delegate's decision rather than to the Tribunal.
In Li[14], Yilmaz was distinguished upon the basis that provision of validating information to the Tribunal did not render the application valid for the purposes of Tribunal review.
[14] (2000) 103 FCR 406 at [81]
The Full Court in Li, at [82], went on to observe that it strained language to say to say the powers to review decisions included the power to receive essential components of the prescribed application form. The decision in Yilmaz is confined to those cases in which additional validating documents are provided to the department in the small window between the delegate's decision and expired the time limit to apply for merits review. That, it is submitted, has no application to this case.
As to the reliance placed on SZECD, Mr Bromwich submitted that this was misconceived. SZECD was a case concerning factual circumstances well removed from the case before this Court and is a doubtful authority in light of the unanimous and binding authority of Li. It was a decision of a single Judge on appeal from the Federal Magistrates Court.
A passage quoted by counsel for the applicant from [25] referred to the capacity of the Tribunal to review a delegate's decision that it is invalid and for that purpose cured the basis for the valid decision. It does not go so far as to address the problem that the applicant faced in this case which does not concern an invalid application but a failure to satisfy a legislative criterion in the migration regulations. Hence, he submitted that ground 1 could not be sustained.
In respect of ground 2, Mr Bromwich submitted that the Tribunal appeared to have slipped in its description at the time of application criteria for subclasses 842, 843, and 846, that the underlying point was the same as that dealt with in relation to ground 1, namely, that what is required in relation to dealings with State or Territory authorities had not taken place by the time of the delegate's decision. In the case of those three subclasses the requirements concern sponsorship either being obtained or, at least, being considered by those particular authorities.
In the alternative, it is submitted that it has never been suggested that the applicant ever sought to obtain sponsorship so that subclasses 842, 843, 846 could never have been a basis for the grant of the visas sought. Relying again on the reasoning in respect of the first ground, it is now too late to do so, so that there could not be a successful application for review upon the ground of futility. It was futile, he submitted, because the Tribunal could not grant subclass 842, 943, or 846 to the applicant and his family because a time of application criterion could never be met.
Mr Bromwich submitted on behalf of the respondent Minister that ground 3 attempted to use policy to override the migration regulations which cannot be done. Item 844.222 of subclass 844 contained a criterion that the applicant should provide evidence that he had made a designated investment of $750,000.00 to $2,000,000.00 by the time of the decision, and there was no evidence that that criterion had ever been met or had ever been proposed to be met. The Tribunal was obliged to refuse to upset the delegate's decision and accordingly there is no factual, legal or jurisdictional error involved.
He went on to submit that the policy to which counsel for the applicant referred was evidently designed to ensure that its investments were not made without consultation with the delegate in the lead up to the final decision, presumably, to ensure that the investment was not futile by reason of other criterion not being able to be met. Accordingly, he submitted, that ground 3, as well as grounds 1 and 2 could not be sustained and the application should be dismissed.
In reply, Mr Killalea, of counsel, submitted that the decision in Minister for Immigration & Multicultural Affairs v Li was authority for the proposition that a visa application which is not a valid application before the Minister cannot be rendered by providing to the Tribunal on review, information which would have cured the invalidity in the application before the Minister.
He submitted that to the extent the decision in Yilmaz decided otherwise, the Minister for Immigration & Multicultural Affairs v Li distinguished Yilmaz as applying to the situation where relevant information was provided to the department and not the Tribunal.
In this matter, as he pointed out, the relevant information, namely, the form 927 was provided to the Tribunal, and thus Yilmaz has no direct application to this matter and the Court would be constrained to follow the decision of the Minister for Immigration & Multicultural Affairs v Li.If the ratio of that matter was determinative of any issue in this matter, he submitted, however, that it was not. His submission is that the applicant complied with s.46 in regulation 2.07 in lodging a completed form, 47BU and it was not a condition of the validity of the application to lodge a form 927 with the application (see s.46 of the Migration Act). Hence, the delegate considered the valid application and the delegate's decision was subject to the view by the Migration Review Tribunal.
The issue in this matter arose in respect of form 927 which was provided to the Tribunal and not to the delegate, but it was a document not concerned with the validity of the application. The requirement to provide a form 927 document is found at schedule 2 clause 841.216.
It is a clause arising under clause 841.21, which provides:
Criteria to be satisfied at time of application. The issue in this case is whether 'time of application' applies to a period truncated by the delegate making a decision or whether it applies in respect of a decision under review by the MRT. He submitted that the ambulatory nature of the time of application was manifest in consideration of regulation 2.10 'an application must be made at the Migration Office' and the Court's judgment in Li to the affect that an application might be validated, at least up to the time of decision by delegate. In effect, the time of application is the date on which the last of information provided by an applicant is received and considered by the Minister. See Migration Act s. 55.
Mr Killalea submitted that:
(1) it is the function of the Tribunal to review the delegate's decision being a decision about an application, and which application is brought before the Tribunal under an application for review;
(2) section 349 of the Migration Act provides that the Tribunal may exercise all the powers and discretions of the Minister including the power under s.55;
(3) the Migration Review Tribunal might obtain information, for example, at form 927, which did not validate an application;
(4) there is no impediment in Li at the time of application extending to the time of application before the MRT, and therefore time of application must be read to include the time at which an application is completed on receipt of material by the Tribunal.
In my view, the Minister is correct in submitting at the time of application the criterion does not involve a question of validity of an application for a visa, the required factual state of affairs must exist in order for an application to be granted. If that factual state of affairs does not exist the application is unsuccessful rather than invalid. In my view, the question of invalidity which has been raised in argument is a "red herring". This was not an invalid application. It was an application which was made where a certain state of affairs, namely, the submission of the form 927 had not been made.
This clearly appears to have been an error not of the applicant's current advisors, but of, if anyone, a former advisor. Nevertheless, by the time the form 927 was submitted, it was too late. The delegate's decision had been made. It does not avail an applicant to submit a form 927 to the Tribunal and thereby change the state of affairs which the delegate considered. The application is not an invalid application but what happened is that there was a failure to satisfy a criterion set out in the migration regulations.
In that respect, the applicants' first ground 1. The applicants' second ground fails also. What was required in respect of subclasses 842, 843, and 846, was that there had to be either sponsorship for subclass 842 or 843, or sponsorship being considered by the relevant State or Territory authority. That had not been done. The second ground failed. I am also of the belief that ground 3 must fail because policy, not matter how clearly set out, in the Procedures Advice Manual 3 of the department cannot change or amend the migration regulations, if what is set out in the policy document is not in accordance with the migration regulations, then it is wrong. It is the regulation that must be preferred to the policy document.
The Tribunal was reviewing a delegate's decision where the applicant had not submitted the appropriate form 927. It was appropriate for the Tribunal to affirm that decision. The later attempt to provide the form 927 to the Tribunal was too late. I am of the view that no jurisdictional error has been made out. The Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act and consequently it is not subject to orders in the nature of certiorari or mandamus which the applicant seeks.
It follows that the application will be dismissed. In my view, it is important to consider the question of costs. I note, however, that the third applicant is a minor and it would not be appropriate to make an order for costs against her. In my view, the question of the Minister's costs should be sought as an order against the first and second applicants only and I will hear submissions as to whether or not such an order should be made and if so on the quantum of that order.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 23 August 2007
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