Singh v Minister for Immigration - [2005] FMCA 484

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION

[2005] FMCA 484

MIGRATION – Visa – Temporary Business Entry Visa – Migration Review Tribunal – review of visa refusal – application for review of decision of Migration Review Tribunal affirming a decision of a delegate of the Minister not to grant Temporary Business Entry (Class UC) visas to the applicants – subclass 457.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.359A, 475A

First Applicant:

RIPIN RUPINDER SINGH

Second Applicant:

KIM JI YOUNG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3498 of 2004

Judgment of:

Scarlett FM

Hearing date:

6 April 2005

Date of Last Submission:

6 April 2005

Delivered at:

Sydney

Delivered on:

6 April 2005

REPRESENTATION

The First Applicant:

Appeared in person

The Second Applicant Applicant:

Appeared in person

Solicitors for the Respondent:

Ms Bautista
Sparke Helmore

ORDERS

The Application is dismissed.
The First Applicant is to pay the Respondent’s costs of this application fixed in the sum of $ 4,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3498 of 2004

RIPIN RUPINDER SINGH

First Applicant

And

KIM JI YOUNG

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

The application before the Court today is an application for review of a decision of the Migration Review Tribunal. That decision was made on 11 October 2004. In that decision, the Migration Review Tribunal affirmed a decision under review, finding that the two applicants were not entitled to the grant of Temporary Business Entry Class UC visas.
The background to this application is that there are two applicants. Mr Singh is the primary applicant who is a national of India.

His fiance is the secondary applicant. She is a national of South Korea. They lodged applications for Temporary Business Entry (UC) visas on 28 February 2003. A delegate of the Minister refused that application to grant visas to the two applicants on 17 March 2003.

On 15 April 2003, the applicants then lodged their applications for review at the Migration Review Tribunal.
The applicants, in fact, had two hearings. The first hearing took place on 5 May 2004. The hearing was adjourned until

20 June 2004. On 9 August 2004, the Tribunal purported to hand down its decision. Unfortunately the Tribunal had written to the applicants at the wrong address. What the Tribunal then did to correct that situation was to make arrangements to hand the decision down again on 11 October 2004. The decision handed down on 11 October 2004 was the same decision that the Tribunal purported to hand down on 9 August. As I said, that decision was to affirm the decisions under review, finding that the visa applicants were not entitled to the grant of Temporary Business Entry Class UC visas.
On 8 November 2004 the applicants filed a statement of claim and a short affidavit in the Federal Court seeking judicial review of that decision. The proceedings were subsequently transferred to this Court. In the affidavit, the applicants, who made a joint affidavit, say, at paragraph 3 - and I quote:
We seek relief on the grounds that:
(a)The Tribunal did not consider all the aspects of our case and committed an error finding that the decision of the delegate to refuse to grant sub-class 457 visa is correct.
(b)that we are entitled to a sub-class 457 visa which we applied.
As I indicated, the applicants filed a statement of claim at the same time as the affidavit. That statement of claim alleged that they were denied procedural fairness in that the Tribunal used, in its decision, matters that it led the applicants to believe at the hearing were not relevant, and would not be used against them. There were four particulars of that given:
(a)The Tribunal declined to hear submissions on a matter deemed to be irrelevant, being the fact that the sponsoring company was not prepared to provide the financial and other details requested by the Tribunal, whilst agreeing to sponsor the applicant, but then used that matter in the determination of its decision;
(b)The Tribunal did not consider the applicant's submissions during the appearance before the Tribunal, and in particular, did not consider the request of the applicant for time to find a new sponsoring company, implicitly rejecting the request for time. The applicant submits that the new sponsoring company would give the applicant the required sponsorship in accordance with the Migration Act and regulations;
(c)The Tribunal failed to follow the rules of natural justice by making a decision without considering the relevant submissions made by the applicant, and in particular, taking into consideration an irrelevant consideration that there was no other proposed employer of the first applicant or the second applicant. In doing so, the Tribunal failed to accord procedural fairness to the applicant.
(d)The Tribunal failed to take into consideration the decisions of the Federal Court in which the Court have remitted the matters back to the Tribunal, directing the Tribunal to review the decision after granting time to the applicant to make further submissions. In other words, the Tribunal failed to exercise jurisdiction.
The other particular set out in the statement of claim is number 2, saying:
The Tribunal committed a jurisdictional error in that it ignored relevant evidence, being that the sponsoring company, Cleantech Proprietary Limited, had expressed an intention to sponsor the applicant, but the Tribunal, in its determination, held that the applicant did not have sponsorship from Cleantech Proprietary Limited, or held implicitly that the sponsoring company had withdrawn its sponsorship.
The applicants attended Court today and the applicant, Mr Singh, made an oral submission, pointing out the fact that they had two hearings, and that they had applied for bridging visas, which needed to be extended, otherwise his fiancée, who hoped to return to her native South Korea on family business, would not have been able to re-enter Australia. Fortunately, that was sorted out.
The applicant complained that a number of documents on his file, such as pictures, statements, et cetera, had been mislaid. He complained that the Tribunal had dealt with him and his fiancée unfairly. It is a relevant fact that the proposed sponsoring company, Cleantech, failed to obtain approval as a business sponsor. The delegate's original decision was that the sponsoring business has not been approved as a business sponsor. That decision was made on 17 March 2003.
I have read the written submissions prepared by Ms Bautista, solicitor for the respondent. She sets out the background in the Tribunal's findings. She refers to the fact that the visa class the subject of this application has two sub-classes, 456 and 457. The applicant had applied for a Long Stay Temporary Visa, and sought a stay for longer than three months, so sub-class 457 was the relevant sub-class.

The only ground on which the applicant applied was sponsorship by a business operating in Australia.
A delegate of the minister rejected the application by Cleantech for approval as a business sponsor. That decision was affirmed by the Migration Review Tribunal on 14 January 2004. That Tribunal noted there was no other proposed employer for the applicant. The applicant, Mr Singh, did, in fact, attend two hearings before the Tribunal, and did give evidence that he was no longer employed by Cleantech. Indeed, on the Court file, there is a letter dated 23 April 2004, setting out that the applicant had been made redundant, and that there was no reflection whatsoever on the quality of his work. He was held in high regard. In that letter, the director of the company said of the applicant:
The termination of his employment is no way a reflection on his service. We are sorry to see him go and wish him the best in the future.
The Tribunal had, on 15 January 2004, written to the applicant by virtue of s 359A of the Migration Act. That section states that the Tribunal must explain, and invite comment on:
particulars of any information that the Tribunal considers would be the reason, or part of the reason for affirming the decision that is under review.
The Tribunal, in its letter, set out three matters upon which it sought the applicant's comments. They are these:
One necessary criterion for the granting of a sub-class 457 visa is that the applicant is employed in Australia by an employer who is the subject of an approved business sponsorship (see sub-clause 457.223(4) of the regulations). Without there being an approved business sponsor, the visa criteria cannot be met. Further, the Tribunal has made a decision on 14 January 2004 to affirm the decision of the Department not to give - to approve the application for business sponsorship by Cleantech Proprietary Limited. Further, based on this information, the Tribunal is unable to find that you -
that is the applicant -
satisfy the requirements of paragraph 457.223(4)(a) of the regulations; in particular the requirement which states that at the time of application, the visa applicant is the subject of an approved business sponsorship.
The applicant replied, by writing directly onto a copy of that letter and that document was received by the Tribunal on 13 February 2004.

In her submission at paragraph 5, Ms Bautista, for the respondent put:
The Tribunal put to the applicant, under s 359A, a letter, that he failed to satisfy the requirements of sub-class 457.223(4)(a) of the regulations which required that at the time of the application, the visa applicant was the subject of an approved business sponsorship.
And the applicant responded to that s359A notice.
6.The Tribunal concluded that the applicant's proposed employer had not been approved as a business sponsor, as required by sub-class 457.223(4), and there was no evidence that he had any other basis for meeting any alternate limbs in cl 457.223. Accordingly, the Tribunal was not satisfied that the applicant met the requirements of cl 457.223, and could not, therefore, be granted a sub-class 457 visa.
The fact is that to be granted a sub-class 457 visa, an applicant must meet the requirement of that visa, and it is a requirement of that visa that an applicant must have a current, proved business sponsorship, or business sponsor. At the time the application came before the Migration Review Tribunal, the applicant did not have sponsorship from a business sponsor. Cleantech, the intended sponsor, had not become a sponsor, and had not been approved. The applicant had either left, or was in the act of leaving the employment of Cleantech by 23 April 2004.
At the time he appeared before the Migration Review Tribunal, he did not have a business sponsor. There was no realistic proposal put before the Tribunal or put before this Court for the applicant to get an alternate visa sponsor. The applicant left his employment by May 2004.

He then found himself in the unfortunate situation of having to spend a couple of months without employment, as his approval to work in the community had been revoked when he left the employment of Cleantech. It was not until July that he was able to obtain approval to work from the Department, and then was able to work.
At the time the applicant lodged his application in the Federal Court, he did not have a business sponsor. He does not have an approved business sponsor today. It is a precondition of the granting of a

sub-class 457 visa that an applicant has the sponsorship of an approved business sponsor. The applicant did not have that sponsorship at the time of the RRT decision, and does not have that sponsorship now.

He does not qualify for a sub-class 457 visa. As to the particulars of his claim, I am unable to detect any sign of procedural unfairness.

He appeared at hearings not once, but twice, and put his point of view. There is no proof that the Tribunal declined to hear a submission on a relevant matter. I do not consider that a request by an applicant for time to find a new sponsoring company is automatically a jurisdictional error. To my mind, there is no obligation on the Tribunal to allow time for a new sponsor to be found.
In any event, the applicant commenced employment with his current employer by July of 2004, and the applicant has no business sponsorship from that company today, in April 2005. There is no prescribed proper procedure for the Tribunal to defer making its decision so that the applicant can obtain a response. I look at particular 1C, which claims that the Tribunal failed to follow the rules of natural justice, and failed to accord procedural fairness to the applicant.

The failure to follow the rules of natural justice arises from a claim that the Tribunal did not consider the relevant submissions made by the applicant.
I am not satisfied a denial of natural justice has been made out, nor has there been made out a lack of procedural fairness. There is no evidence before me to show that any relevant submission was not considered. The applicant has said that the Tribunal took into consideration an irrelevant consideration that there is no other proposed employer of the first applicant, or the second applicant. As Ms Bautista pointed out, this was not an irrelevant consideration. Whether or not an applicant has sponsorship from an approved sponsoring company is an essential part of the information that was needed in order to issue the appropriate visa. In my opinion, that consideration was highly relevant.
Ground D was that the Tribunal failed to take into consideration the decisions of the Federal Court in which the Court had remitted matters back to the Tribunal, directing the Tribunal to review the decisions after granting time for the applicant to make further submissions. The Federal Court may have referred matters back to the Migration Review Tribunal; that would only be done after a finding of jurisdictional error on the part of the Tribunal had been made. I am not satisfied that this shows a failure to exercise jurisdiction.
Particular number 2 says:
The Tribunal permitted jurisdictional error and that it ignored relevant advice, being that the sponsoring company, Cleantech Proprietary Limited, had expressed an intention to sponsor the applicant, but the Tribunal, in its determination, held that the applicant did not have sponsorship from Cleantech Proprietary Limited, or held implicitly that the sponsoring company had withdrawn sponsorship.
What the Tribunal determined was that, at the time of hearing, the applicant did not have sponsorship from Cleantech Proprietary Limited. This is not a jurisdictional error; that is an exact statement of what the Tribunal determined, and its an exact statement about what the situation is. At the time of the Tribunal hearings, and indeed today, the applicant did not have and does not have sponsorship from Cleantech, or any other company. In fact, the applicant had ceased employment with Cleantech prior to the Tribunal hearing.
There is no jurisdictional error made out. The application must be dismissed.
This is a matter where, if a party is unsuccessful, it is open to the Court to make an order for costs. I note that the application has been unsuccessful, and the first applicant, Mr Singh, has told me that he needs time to talk to his management, and that his fiancée is being solely supported by him. She is in a position where she cannot work in Australia because she is not permitted to work in Australia.

The fiancée, Ms Young, who is the second applicant, has attended Court today. She has not taken a separate role in the proceedings, and indeed, her part in these proceedings has been secondary to the application of the first applicant, Mr Singh. In fact, the entire proceedings have revolved around the point of the failure of the first applicant to have an approved business sponsor. This is a matter for a costs order. In my view, the costs order should attach to the primary applicant.
I require a transcript of my reasons for this decision.
The application will be removed from the list of cases awaiting finalisation.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 15 April 2005