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 the expiry of the current nomination approval on 11 June 2005.
On 15 June 2005, the Applicant’s migration agent responded to the Tribunal’s letter dated 6 June 2005 requesting an extension of time for the furnishing of documents.
On 24 August 2005, a delegate of the First Respondent refused the grant of a Temporary Business Entry Class UC Visa on the basis that the Applicant did not satisfy cl.457.223(4) of the Migration Regulations 1994 because the Applicant did not have an approved business sponsor at the time of the decision.
On 16 September 2005, the Applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 31 May 2006, the Tribunal wrote to the Applicant pursuant to s.359A of the Act, relevantly, in the following terms:
“You are invited to comment, in writing, on the following information:
· Your nominator, Victoria Park Ceramics Pty Ltd, had its nomination approved on 11 June 2004. The nomination approval was valid for 12 months and has now expired.
This information is relevant to the review because it may indicate that you do not meet paragraph 457.223 (4)(a) of the Regulations (see attached).”
The s.359A letter requested the Applicant’s written comments by 7 July 2006. On July 2006, the Tribunal received a fax in response to the s.359A letter requesting additional time to respond. Relevantly, the Applicant stated in his letter the following:
“I have been liaising with many reliable sponsors who are willing to assist my application for sponsorship. However, the sponsors advise me that they are still finalising all the necessary documents from their accountant and key stakeholders in order to fulfil the requirements for the “nomination business sponsor”. Also the building/construction industry and the business of accountants have delayed the process.”
On 12 July 2006, the Tribunal responded to the Applicant’s request for an extension as follows:
“As I advised you, when you rang on 5 July 2006, the member considering your case has not agreed to an extension. As there is no provision to change sponsors for this visa class, giving you more time to find another sponsor will not assist your case.”
By that explanation, the Tribunal was referring to the fact that there is no provision for the Applicant to change sponsors in that cl.457.223(4)(b) requires that the sponsor of the Applicant at the time the Tribunal makes its decision must be the same sponsor as the original sponsor who sought nomination approval in support of the Applicant’s 457 visa lodged on 14 October 2003, that being VPC.
The criteria which the applicant needs to satisfy, as at the time of the Tribunal’s decision, includes the following:
“Clause 457.223(4)
Sponsorship – Australian business
(4) The applicant meets the requirements of this subclause if:
(a) 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
(b) the employer is:
(i) either:
(A) a pre-qualified business sponsor; or
(B) a standard business sponsor approved under regulation 1.20D as in force before, on or after 1 July 2003; and
(ii) the employer mentioned in subparagraph 1223A(3)(d)(i); and
(c) the applicant is nominated, in accordance with approved form 1068, 1196 or 1196 (internet), in relation to the activity by the employer; and
(d) the applicant has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed; and
(e) the applicant demonstrates, if so required by the Minister, that he or she has the skills necessary to perform the activity; and
…”
Schedule 1 subparagraph 1223A(3)(d)(l) is in the following terms:
“Item 1223A. Temporary Business Entry (Class UC)
(3) (d) If an applicant seeks to satisfy the primary criteria for the grant of a Subclass 457 (Business – Long Stay) visa on the basis that the applicant satisfies the requirements of subclause 457.223 (4) of Schedule 2, the applicant must:
(i) specify the employer by whom the applicant proposes to be employed for subclause 457.223 (4); and
(ii) be accompanied by evidence that the proposed employer is:
(A) a pre-qualified business sponsor; or
(B) a standard business sponsor; or
(C) a person who has applied for approval under regulation 1.20C as a pre-qualified business sponsor or standard business sponsor but whose application has not yet been decided.”
On 4 August 2006, the Applicant attended a hearing before the Tribunal at which he gave evidence that his sponsor, VPC, “went bankrupt” and that the Applicant had lodged a new application for an approved sponsorship and nomination.
On 10 August 2006, the Tribunal wrote to the Applicant pursuant to s.359(2) of the Act inviting additional information being “Information showing that the Department has accepted the lodgement of a new application by you for a Subclass 457 visa.” The Applicant was requested to provide that information by 18 September 2006.
On 11 September 2006, a letter was sent to the Tribunal from Toufic Laba Sarkis, JP on behalf of the Applicant stating that the Department had accepted the lodgement of a new application for a Subclass 457 visa and identifying a new sponsor as the Applicant’s prospective employer. The letter attached receipts from the Department in respect of the lodgement together with an offer of employment from the Applicant’s proposed new employer, Tile Art Pty Ltd.
The Tribunal noted that it explained to the Applicant at the hearing that in relation to his current visa application, lodged on 14 October 2003, the regulations did not allow him to change sponsors.
In the circumstances, the Tribunal found that because VPC was no longer an approved business sponsor, the Applicant did not meet the requirement of having an approved business sponsor in accordance with cl.457.223(4) of the Regulations.
The Tribunal also considered whether the Applicant satisfied the other subclauses of cl.457.223 and found that there was no evidence that the Applicant would be able to satisfy the criteria in those clauses.
Based on the Tribunal’s finding that the Applicant did not meet cl.457.223, the Tribunal found that the Applicant did not meet all the essential requirements for the grant of a Subclass 457 visa. The Tribunal noted that the applicants had not claimed or provided evidence that they met the requirements for a Subclass 456 visa being the only other visa in Class (UC). The Tribunal concluded that, based on the evidence before it, the applicants did not satisfy the essential criteria for Temporary Business Entry (Class UC) Visas and the Tribunal must affirm the decision under review.
On 7 November 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
All the applicants appeared at the hearing before this Court except for Youssef Sam. The Applicant had the assistance of an interpreter and informed the Court that he represented all the applicants. However, during the hearing, both Raymond Sam and Raymona Sam made submissions to the Court.
The Applicant, after consultation with his family, confirmed that he relied upon the grounds in the application filed on 7 November 2006. Those grounds are as follows:
“1. The tribunal denied the applicant the opportunity to have another sponsor approved, especially after being asked by the applicant to provide evidence that an application for nomination was lodged. Such evidence was given to the Tribunal with copy of the receipt and this what the Tribunal asked for and the Tribunal denied the applicant the opportunity to have the decision reserved until the nomination is approved.
2. The Tribunal did not give any weight to the most compelling circumstances of the applicant, especially the fact that the original sponsor had gone bankrupt.
3. The Tribunal did not show the applicant which part of the regulations or regulation do not allow him to change sponsors, especially in the matter where the sponsorship by a business operating in Australia went bankrupt and the visa applicant as well as his family were victims since they arrived in Australia.”
Each of the grounds was interpreted for the Applicant and he was invited to say whatever he wished in support of each of the grounds or in respect of his application generally. The Applicant stated that he was able to find two sponsors to support his application but that eventually he was the “victim”. The Applicant stated that he was treated unfairly by employers and that he had been here for seven years and worked legally. The Applicant stated he had nothing to go back to in Lebanon and that he had tried to educate his children. The Applicant stated that it was not his fault that his employer went “bankrupt”. Those submissions do not identify or support the existence of a jurisdictional error in the Tribunal’s decision.

Ground 1 – “The tribunal denied the applicant the opportunity to have another sponsor approved, especially after being asked by the applicant to provide evidence that an application for nomination was lodged. Such evidence was given to the Tribunal with copy of the receipt and this what the Tribunal asked for and the Tribunal denied the applicant the opportunity to have the decision reserved until the nomination is approved”

Ground 1 appears to be a complaint that the Tribunal failed to give the Applicant another opportunity to have another sponsor approved. This complaint is misconceived in that cl.457.223(4) has the effect of requiring the sponsor at the time of the Tribunal’s decision to be the same sponsor as in the Applicant’s application for a 457 visa lodged on 15 October 2003. The Tribunal correctly found that the Applicant was not entitled to have another sponsor to replace the original sponsor of the Applicant, being VPC. The evidence before the Tribunal was that VPC’s approval had expired and VPC was insolvent. In the words of the written submissions of Mr Markus, solicitor for the First Respondent:
“Subparagraph 1223A(3)(d)(1) of Schedule 1 of the Regulations require the applicant to specify the employer by whom the applicant proposed to be employed for subclause for 457.223(4) of the Regulations. Subclause 457.223(4)(b)(ii) in turn required the Tribunal to be satisfied, at the time of making its decision, that the applicant had an approved business sponsor who was the same sponsor specified at the time of application as identified on the original visa application.”
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, lodged on 15 October 2003, because the approved nominated sponsor for that application was VCP.
No further opportunity would have reasonably assisted the Applicant to meet cl.457.223(4). In the circumstances, there was no error in the Tribunal’s decision to delay its decision.
Accordingly, Ground 1 is not made out.

Ground 2 – “The Tribunal did not give any weight to the most compelling circumstances of the applicant, especially the fact that the original sponsor had gone bankrupt”

Ground 2 asserts that the Tribunal did not give any weight to the fact that the Applicant’s original sponsor had “gone bankrupt”. That statement by the Applicant is correct. The Tribunal did not give weight to the insolvency of VPC 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, Ground 2 is not made out.

Ground 3 – “The Tribunal did not show the applicant which part of the regulations or regulation do not allow him to change sponsors, especially in the matter where the sponsorship by a business operating in Australia went bankrupt and the visa applicant as well as his family were victims since they arrived in Australia”

Ground 3 appears to complain that the Tribunal failed to show the Applicant the part of the Regulations that did not allow him to change sponsors when his sponsor “went bankrupt”. There is no evidence before this Court to suggest that there was any request made by any of the applicants to the Tribunal in the nature of Ground 3.
However, in any event, there is no requirement that the Tribunal refer the applicants to the relevant statutory provisions. The correspondence contained in Exhibit 1R, being the book of Relevant Documents, filed on 3 January 2007, makes it clear that the Applicant was told on many occasions that any further nomination in support of his application must be from his original sponsor, VPC.
Accordingly, Ground 3 is not made out.
The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for which it provided reasons. The Tribunal correctly applied the relevant law to those findings.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal discharged its obligations under the statutory regime in the making of its decision, including the conduct of its review.

Conclusion

The Tribunal’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, commenced by way of application filed on 7 November 2006, is dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 25 July 2007