Sam v Minister for Immigration - [2007] FMCA 1217

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAM & ORS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1217

MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal erred in finding that the applicant for a 457 visa cannot change sponsors following approval – whether the applicant satisfied the conditions of a 457 visa – whether the insolvency of an earlier approved sponsor has the effect that the applicant cannot meet the conditions of his application for a 457 visa.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65; 359(2); 359A; 474
Migration Regulations 1994, cl. 457.223; 457.223(4); 457.223(4)(b); 457.223(4)(b)(ii)

First Applicant:

ELIAS HANNA SAM

Second Applicant:

HELENE SAM

Third Applicant:

MATHILDA SAM

Fourth Applicant:

RAYMONA SAM

Fifth Applicant:

RAYMOND SAM

Sixth Applicant:

YOUSSEF SAM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG 3249 of 2006

Judgment of:

Emmett FM

Hearing date:

24 July 2007

Date of last submission:

24 July 2007

Delivered at:

Sydney

Delivered on:

26 July 2007

REPRESENTATION

Applicants appearing on their own behalf

Solicitor for the Respondent:

Mr A. Markus, Australian Government Solicitor

Solicitors for the Respondent:

Ms B. Griffin, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3249 of 2006

ELIAS HANNA SAM

First Applicant

HELENE SAM

Second Applicant

MATHILDA SAM

Third Applicant

RAYMONA SAM

Fourth Applicant

RAYMOND SAM

Fifth Applicant

YOUSSEF SAM

Sixth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 22 September 2006 and handed down on 13 October 2006.
The first named applicant is the husband of the second named applicant and the first and second named applicants are the parents of the four subsequent named applicants. All of the applicants’ applications depend on the outcome of the first named applicant (“the Applicant”).
The applicants are citizens of Lebanon who arrived in Australia on

15 June 2000 on a Subclass 457 Temporary Business Visa. On

15 September 2001 the Applicant was granted a second 457 visa that ceased on 15 October 2003.
On 14 October 2003, an application for a Temporary Business Entry Visa Class 457 was lodged on behalf of the Applicant together with a nomination by a business sponsor, Victoria Parks Ceramics Pty Ltd (“VPC”).
On 11 June 2004, the Department approved the business sponsorship and nomination applications of VPC. The nomination approval was valid for twelve months from 11 June 2004, thereby expiring on

11 June 2005.
On 13 May 2005, the Department wrote to the Applicant seeking further information and pointing out to the Applicant that such further information must be provided before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FMCA 1217
Decision Date: 26 July 2007

CaseChat Overview and Summary

Elias Hanna Sam and his family, all citizens of Lebanon, brought a judicial review application against the Minister for Immigration and the Migration Review Tribunal. They sought to overturn a decision made by the Tribunal to deny Elias Hanna Sam's application for a 457 visa. The applicants argued that the Tribunal failed to properly consider their circumstances, including the fact that their original sponsor had gone bankrupt. The legal issues before the court were whether the Tribunal's decision was affected by jurisdictional error and whether the Tribunal erred in finding that Elias Hanna Sam could not change sponsors following approval. The court found that the Tribunal's decision was not affected by jurisdictional error and that there was no requirement for the Tribunal to refer the applicants to the relevant statutory provisions. The court held that the Tribunal correctly applied the relevant law to its findings and conclusions. Accordingly, the court dismissed the application with costs.

The Federal Magistrate concluded that the Tribunal’s decision was not affected by jurisdictional error and that the application for judicial review should be dismissed. The court held that the Tribunal had discharged its obligations under the statutory regime in making its decision, including the conduct of its review. The court found that the Tribunal correctly applied the relevant law to its findings and conclusions. The court held that the Tribunal's findings and conclusions were open to it on the evidence and material before it and for which it provided reasons. The court held that there was no requirement that the Tribunal refer the applicants to the relevant statutory provisions. The court held that the Tribunal correctly found that the Applicant was not entitled to have another sponsor to replace the original sponsor of the Applicant, being Victoria Parks Ceramics Pty Ltd. The court held that an application for approval for sponsorship by Tile Art Pty Limited was not capable of satisfying the statutory and regulatory requirements of the conditions attaching to the Applicant’s 457 visa application. In the circumstances, there was no error in the Tribunal’s decision to delay its decision. The court held that the Tribunal did not give weight to the most compelling circumstances of the Applicant because it was not a matter relevant to the issues for determination before the Tribunal. In circumstances where the Applicant had failed to meet the essential criteria being the conditions of his visa, there is no discretion in the Tribunal to grant the visa. It is for the Applicant to satisfy the Tribunal that he has met the criteria. In the event that the Tribunal is not so satisfied s.65 of the Act mandates that the visa must be refused. Accordingly, the application for judicial review was dismissed with costs.

Orders