SLAVINSKAS v Minister for Immigration

[2003] FMCA 478

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SLAVINSKAS v MINISTER FOR IMMIGRATION [2003] FMCA 478

MIGRATION – Review of Migration Review Tribunal decision – refusal of a business visa – whether applicant invited to comment upon material information - whether correspondence sent by the MRT to the applicant at his last known address for service – no reviewable error found.

Migration Act 1958 (Cth), ss.359A, 359C, 360, 379A

Migration Regulations

Applicant: RAMUNAS SLAVINSKAS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ414 of 2003

Delivered on: 27 October 2003

Delivered at: Sydney

Hearing date: 27 October 2003

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ414 of 2003

RAMUNAS SLAVINSKAS

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 24 February 2003.  The MRT affirmed a decision of a delegate of the Minister not to grant to the applicant a temporary business entry class UC visa.  The general background to this matter is set out by Mr Lloyd at paragraphs 8 through to 17 of his written submission filed on 22 October 2003.  I accept that statement of background facts and adopt it for the purposes of this judgment:

   On 17 December 1999, the applicant lodged an application for a long-stay temporary business visa. The application was made on the basis that he was a person sponsored by an Australian business, namely Pedreira Plastering.

   At the time of the application, Schedule 1 of the Migration Regulations (“the Migration Regulations”) provided for a class of visa known as Temporary Business Entry (Class UC) (see item 1223A).  That class of visa had two subclasses, the relevant one in the present case being: subclass 457   (Business (Long Stay)).

   The criteria for the grant of a subclass 457 visa, at the relevant time, are set out at pages 19-25 of the court book.  The applicant applied, in essence, under items 457.223(4) or (5) of the Migration Regulations.  Both of these criteria require, inter alia, three elements:

   a)the visa applicant must be nominated in relation to a business activity by the employer;

   b)the employer must be a pre-qualified or standard business sponsor; and

   c)the activity must be the subject of an approved business nomination by the employer.

   Regulations 1.20C-1.20F deal with approval of an employer as a business sponsor.  Regulations 1.20G and 1.20H concern the approval of nomination of business activities.

   As is usual, the applicant’s visa application was accompanied by an application for approval as a business sponsor and a nomination of an activity in which the visa applicant is proposed to be employed in Australia.

   On 22 May 2001, a delegate of the respondent advised the applicant that his application had been refused.  It noted, inter alia, that a decision had been made to refuse the application for nomination by a business sponsor. As a consequence, the applicant did not comply with the requirements of either item 457.223(4) or (5).

   On 18 June 2001, the applicant lodged an application for review with the MRT.  That application included a residential address for the applicant in Waterloo (court book, page 12). It also indicated that he was represented by Mr Gary Penhall of Penhall & Co Lawyers (court book, page 14).  It also specified an address for correspondence, being the PO box address for Penhall & Co Lawyers.

   On 19 December 2002, the MRT sent to the applicant an invitation to comment on information in accordance with s.359A of the Migration Act (“the Migration Act”). That letter was sent to the applicant’s representative and it was copied to the applicant at the last residential address provided to the MRT by him in connection with the review: see s.379A(4)(c)(ii).

   On 24 February 2003, the MRT handed down its decision, affirming the decision under review (court book, pages 41-44). The decision was based upon the fact that at the time of the decision there was no approved business sponsor.

   On 21 March 2003, the applicant commenced the present proceedings in the Federal Magistrates Court.

2. The applicant relies upon his application filed on 21 May 2003 and his supporting affidavit filed on the same date. In addition, I received oral evidence from the applicant. Essentially, the applicant bases this application on the argument that the MRT failed to correspond with him at his address for service and in so doing breached s.359A and/or s.360 of the Migration Act. The former section gives the applicant an opportunity to comment upon material information. The latter section provides that the tribunal must invite the applicant to appear before the tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. I have previously held, and I confirm, that a failure by the MRT to comply with s.360 would be a jurisdictional error invalidating the decision of the MRT. A breach by the MRT of its obligation under s.359A(1) would probably also be a jurisdictional error, although a breach of s.359A(2) may not be. In any event ss.360 and 359C, when read together, make clear that there is no need for an invitation under s.360 where an applicant fails to respond to an invitation under s.359A. The real issue, therefore, is whether the MRT complied with its obligations under s.359A.

3. The applicant gave evidence that he changed his address several times. He gave evidence that he was at the time he lodged his application for review to the MRT living at an address in Waterloo.  That address is shown in his application to the MRT at page 12 of the court book. However, the applicant says that he subsequently moved to Chatswood in May 2002 and later in May 2002 he moved from Chatswood to Rose Bay.  Finally, the applicant moved from Rose Bay to Bexley in 2003.  There is no dispute that the applicant informed the MRT of his change of address from Rose Bay to Bexley.  However, there is a factual dispute as to whether the applicant informed the MRT of his move from Chatswood to Rose Bay.  The move from Waterloo to Chatswood is not relevant due to its short duration.

4. The applicant has not asserted that he informed the MRT of his move from Waterloo to Chatswood and, indeed, he only lived at Chatswood for a short time.  Exhibit A2 is a change of address form which I was told was prepared and submitted by a migration agent, Mr Ryvchin, who acted for the applicant in relation to a cancellation of a bridging visa. Although the change of address form is dated 29 May 2001 I accept that that date was an error and the date that it was actually prepared was 29 May 2002. 

5. I also accept that the change of address form was submitted to the Department of Immigration and Multicultural Affairs.  However, there is no evidence before me that the change of address form was provided to the MRT.  The applicant gave oral evidence that he orally informed the MRT of his change of address to Rose Bay at the time of a hearing into the cancellation of his bridging visa.  However, that was a different application than the one which is relevant to the proceedings before me.

6. Another provision of the Migration Act of relevance is s.379A(4). That subsection relevantly provides that an approved method of communication by the MRT to an applicant is to the last address for service provided to the tribunal by the recipient in connection with the review

7. The words “in connection with the review” are important. Provided that the MRT communicates to an applicant at his or her last address for service given in connection with the review there is in my view compliance by the MRT with its obligations under s.359A. It is apparent from the court book, the oral evidence and the affidavit of Jonathan Willoughby-Thomas, filed on 23 October 2003 on behalf of the Minister, that at the time of the invitation to comment given to the applicant by letter dated 19 December 2002 (court book, page 35) the last address given by the applicant to the MRT in relation to his business visa review application was his address at Waterloo. That address appears in his application for review on page 12 of the court book.

8. The applicant had, through his migration agent Mr Ryvchin who, incidentally, was a different migration agent to the lawyers who the applicant had instructed in relation to the business visa decision, informed the Immigration Department of his move to Rose Bay but Mr Ryvchin was not instructed in relation to the business visa decision and did not provide any advice to the MRT of a relevant change of address in relation to the business visa application before the MRT.

9. In addition, the oral advice given by the applicant to the MRT at the MRT hearing in relation to the cancellation of his bridging visa was in relation to a different review.  In the circumstances, I find that the MRT did give to the applicant at his last address for service provided to the MRT in connection with the review of the business visa decision the invitation to comment on information appearing at the court book on page 35, as well as the invitation to the handing down of a decision appearing on page 37 of the court book.

10. I find that there was no breach by the MRT of s.359A and hence no need to comply with s.360 of the Migration Act. In the circumstances, there is no jurisdictional error that would permit me to disturb the decision of the MRT.

11. For completeness, I mention that Mr Lloyd has properly raised a jurisdictional issue in his written submissions.  There was some discussion between Mr Lloyd and myself about that jurisdictional issue.  However, given that I have not found any jurisdictional error in the decision before me the decision of the MRT in this matter is a privative clause decision and it is unnecessary to rule on that jurisdictional issue.  The occasion of course may well arise in another matter.  I will dismiss the application.

12. On the question of costs, the application having been dismissed, Mr Lloyd has sought an order for costs on behalf of the Minister and has submitted that an order fixed in the sum of $6,600 on a party/party basis would be appropriate.  It is apparent from the applicant's evidence and written submissions that he has been involved in a rather complex factual situation involving both the approval of a sponsor and a business activity by the sponsor and also his application for a business visa and an application to review the cancellation of a bridging visa.

13. In the course of those various immigration proceedings, the applicant has, in my view, made an attempt to fulfil his obligations to inform the MRT of changes of his address.  He did not do sufficient in order to substantiate his claim for jurisdictional error.  However, it would have been possible for the MRT to have found out, by cross referencing of records, the applicant's change of address.  Some considerable effort has been made on behalf of the Minister for the purposes of these proceedings in order to put before me the relevant facts.

14. If that effort had been undertaken at an earlier stage, these proceeding may not have been necessary. There is a question in my mind whether the procedures of the MRT could be improved by way of cross referencing of information between applications in order to ensure that MRT officers responsible for particular applications are better informed of changed circumstances.

15. While the applicant has lost, the applicant deserves in my view some consideration in view of those comments.  I will order that the applicant pay the Minister's costs of and incidental to the application which I fix in the sum of $3,500.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  13 November 2003