Selever v Minister for Immigration
[2005] FMCA 735
•31 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SELEVER v MINISTER FOR IMMIGRATION | [2005] FMCA 735 |
| MIGRATION – Business sponsorship – Clause 421.222 – Cultural/Social (Temporary) (Class TE) visa – Subclass 421 (Sport) visa. |
| Migration Act 195 , ss.359(2) Migration Regulations Schedule 2, Clause 421 |
| Applicant: | VOLODYMYR SELEVER |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 855 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 31 May 2005 |
| Date of Last Submission: | 25 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. A. McInerney |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application is dismissed.
Applicant to pay respondent’s costs set in the amount of $4000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 855 of 2004
| VOLODYMYR SELEVER |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 23 March 2004 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 25 February 2004 and notified to the applicant by letter dated 25 February 2004 to affirm the decision of a delegate of the respondent Minister to refuse him a Cultural/Social (Temporary) (Class TE) visa.
The applicant is an Ukrainian national who first entered Australia on
3 July 2001. He is incorrectly described as a national of the Russian Federation in the Tribunal’s decision record. As will be evident in this judgment nothing turns on this error by the Tribunal. On 14 February 2003 he applied for a Cultural/Social (Temporary) (Class TE) visa which was refused on 16 April 2003. The applicant sought review by the Tribunal on 19 May 2003 and on 25 February 2004 the Tribunal affirmed the decision that the applicant was not entitled to the grant of this visa.The application for a TE Cultural class visa is at Court Book 1 to 10, the application for review to the Tribunal is at CB 23 to 27. The applicant's complaint to the Tribunal as to the reason why the delegate’s decision was incorrect is at CB 27 where he states:
“The sponsor withdrew their sponsorship in the last minute and the application was lodged without a sponsor. A sponsor (his previous one) lodged an application that was also rejected.”
By letter dated 20 August 2003 the Tribunal wrote to the applicant care of his then migration adviser, pursuant to s.359(2) of the Migration Act inviting the applicant to give information that was relevant to the review of the decision. A copy of that letter is at CB 31 to CB 32. The Tribunal specifically invited the applicant to provide the following information:
“Information and supporting documentation regarding your ability to satisfy clause 421.222 of the Migration Regulations (this clause is extracted at the end of this letter).”
The Tribunal further noted that there was minimal information or evidence before the Tribunal regarding the applicant's ability to “satisfy clause 421.222”.
The applicant's migration adviser responded on the applicant's behalf and a copy of the facsimile received by the Tribunal on 25 September 2003 is at CB 33. The applicant's adviser sought additional time to present information to satisfy Clause 421.222, and advised the Tribunal relevantly that the applicant had been seeking a new sponsor to fulfil this condition. By letter dated 26 September 2003, copied at CB 34, the Tribunal responded. It formally refused the request for an extension but indicated that the Tribunal would take into consideration any evidence and submissions that were provided up until the date of the hearing. As the hearing had not been scheduled at that time the Tribunal indicated that it would be in contact with the applicant to set the hearing date. By letter dated over a month later on 31 October 2003 the Tribunal wrote to the applicant advising that the hearing had been set down for 5 February 2004. The applicant then responded by returning the “Request For Hearing” form, and this was received by the Tribunal on 11 November 2003. He indicated that he would be appearing before the Tribunal and would require an interpreter in the Ukrainian language. The applicant did not attend the hearing and there is nothing before me to show that he sought any adjournment or gave any further advice to the Tribunal that he was unable to attend on that date. The Tribunal then proceeded to make a decision on what was before it.
The applicant has held a number of visas. In relation to the decision under review before me the application lodged by the applicant was for a Cultural/Social (Temporary) (Class TE) visa. This type of visa contains a number of sub classes of visa. The only relevant subclass in the circumstances presented by the applicant is subclass 421 (Sport) visa. At CB 47.9 the Tribunal clearly looked at the evidence before it and found that there was no evidence to suggest that the applicant would meet the key criteria for the grant of any other subclass of visa within this class of visa. Clause 421.221 of the Schedule 2 to the Migration Regulations provides that the applicant must satisfy a number of matters set out in clauses 421.222 to 421.229. Relevantly, the applicant was required to show that he satisfied subclause 421.222 (4), that is, that he had a relevant sponsor. The Tribunal found that as the applicant did not have a sponsor as required by subclause 421.222(4), he did not meet the necessary regulatory requirement and that therefore the applicant was not entitled to the grant of a subclass 421 (Sport) visa. As the Tribunal had already found that the applicant was not entitled to the grant of any other of the subclass visas that are contained in the Cultural/Social (Temporary) (Class TE) visa class, he was therefore not entitled to the visa that he had applied for and that the application for review must therefore fail.
It is clear on the material before me that the applicant would have known that the requirement for a sponsor was a necessary and critical element for the success of his application. The decision record of the Minister’s delegate at CB 22 clearly stated that the applicant's application was refused on the basis that the applicant did not have a sponsor and that no sponsorship in relation to the applicant had been approved. Therefore as the applicant was not sponsored by any person or any organisation in Australia for a subclass Sport visa he did not meet the necessary regulatory criteria. The applicant acknowledged the need for a sponsor in his application to the Tribunal where at CB 27 he begins an explanation for his lack of sponsorship. By way of letter dated 20 August 2003 when the Tribunal clearly put the applicant on notice of the need to satisfy the matters set out in Clause 421.222 of Schedule 2 to the Migration Regulations, the applicant's response by way of his migration agent again provided a reference to a lack of sponsorship, and indeed sought an extension of time to arrange such a sponsor.
The applicant appeared before me today. He was unrepresented. He was assisted by an interpreter in the Ukrainian language. The applicant’s arguments appear to be:
1)By way of application filed in this Court the applicant complains that the Tribunal failed to recognise that he had a sponsorship from the “Rising Star Entertainment” company, which had been formed to promote education and develop boxing talent in this country.
2)The applicant has also filed in support of his claim, an affidavit sworn by a Mr. Stan Selever on 31 January 2005 stating that in February 2001 he had offered the applicant a position in his business “Kwkday Pty Ltd which is trading as Green Valley Child Care” and that based on this the respondent's Department had issued a temporary visa to the applicant for one year. He further states that at the expiry of that year he had expressed his willingness to extend the contract with the applicant for four more years but that this application was refused by the respondent’s Department.
3)In a submission filed in this Court on 23 June 2004 the applicant asserted that the “Green Book” filed by the respondent was deficient in that it did not contain documents regarding his sponsor. The sponsor was not named.
On the material before me I cannot see any merit in the applicant's claim before this Court. The regulatory requirement is very clear, a sponsor is needed to support the application. The applicant and his adviser were on clear notice of this requirement and attempted to deal with it. The applicant's complaint in the application to this Court that the Tribunal failed to recognise that he had a sponsorship from the Rising Star Entertainment Company is not supported by any evidence. Nor was the applicant able to offer any evidence that such sponsorship documentation had been filed with the respondent's Department and was before the Tribunal. The applicant's reliance on the affidavit of Mr. Stan Selever does no more than show a willingness on Mr. Selever’s part to provide a sponsorship for the applicant. But it also clearly shows that the application, by his business “Kwkday Pty Ltd” to be recognised as a sponsor, was refused by the respondent’s Department. This separate decision was not on the material before me the subject of a review by the Tribunal. In any event it is quite clear that subsequent to February 2002 the time at which Mr. Selever says that he was willing to sponsor the applicant, the applicant had engaged in the correspondence outlined above which clearly showed that he did not have a sponsor, and his attempts to obtain a sponsor.
The applicant’s claim that the “Green Book” is deficient in that it did not contain all his sponsor’s documents is addressed by the affidavit affirmed on 17 January 2005, of Ishan Muthalib, a solicitor in the employ of the respondent’s solicitors. Relevantly, the affidavit and annexures, (particularly Annexure “B”) evidence the respondent’s attempts to obtain from the applicant details of his complaint. There is nothing before me to show any response. Further, at the hearing before me today the applicant asserted that he had not seen the Department’s refusal of the sponsorship put in support of his claim. This appeared to be a reference to the sponsorship referred to in the affidavit of Mr. Selever, and an explanation of what he had referred to in his written submission. [I explained to the applicant the separate processes by which the sponsorships and visa applications are processed by the respondent’s Department and then reviewed by the Tribunal].
The Tribunal's decision turned on the finding that the applicant did not have a sponsor and therefore did not meet the relevant statutory and regulatory requirement. This was a finding of fact which was open to the Tribunal on the material before it. There is nothing that the applicant was able to put before me today to show that there was any sponsorship and that any other finding was open to the Tribunal. The affidavit by Mr. Selever indicating a willingness to sponsor the applicant in February 2002 is offset by his statement that his sponsorship was not accepted. The claim that there was a sponsor by Rising Star Entertainment is not supported by any evidence. The Tribunal had clearly written to the applicant and given him an opportunity to focus on the necessary sponsorship requirement and although it refused the request for extension of time by the applicant, he was clearly given additional time to obtain material to show that he had a sponsorship to support his application. There is nothing before me to show that he was able to do so. The Tribunal looked at the claims made by the applicant, applied the relevant legislation and requisite criteria I can see no error, let alone jurisdictional error in the way the Tribunal has gone about its task, or in the decision of the Tribunal. On this basis the application is dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Wagma Aziza
Date: 3 June 2005
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