Suh and Ors v Minister for Immigration and Anor (No.2)

[2008] FMCA 1546

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUH & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2008] FMCA 1546

MIGRATION – Application to review decision of Migration Review Tribunal – no jurisdictional error – application dismissed. 

Migration Act 1958 (Cth), ss.338, 359A, 362

Kim v Minister for Immigration and Citizenship [2007] FCA 138
Lee v Minister for Immigration & Anor [2007] FMCA 1822
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24
Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375

Applicants: SANG SUP SUH, GI SUK KIM, JU YEON SUH, JUN HEOK SUH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2672 of 2007

Judgment of: Barnes FM

Hearing date: 5 November 2008

Delivered at: Sydney

Delivered on: 5 November 2008

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr M Cleary

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application be dismissed.

2. That the first and second applicants pay the costs of the first respondent fixed in the sum of $6,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2672 of 2007

SANG SUP SUH, GI SUK KIM, JU YEON SUH, JUN HEOK SUH

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal dated 5 July 2007 and handed down on 25 July 2007 affirming a decision of a delegate of the first respondent that the applicants were not entitled to the grant of Educational (Temporary) (Class TH) visas.  The primary applicant in this case was Mr Sang Sup Suh.  The other applicants are members of his family. 

2. The applicants applied for Educational (Temporary) visas in May 2004. The application was refused and the applicants sought review by the Tribunal. The Tribunal affirmed the delegate's decision and the applicants sought judicial review of that decision in this Court. By consent orders dated 5 March 2007 the matter was remitted to the Tribunal for reconsideration. It was noted on the consent orders that the Minister consented to the remittal owing to the Tribunal's failure to review the refusal of the nomination for occupational training as part of its review of the refusal of the Subclass 442 Occupational Trainee visa application.

3. After the matter was remitted to the Tribunal, the Tribunal wrote to Mr Suh by letter dated 3 April 2007 under s.359A of the Migration Act 1958 (Cth) inviting him to comment on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. That letter recited the fact that Mr Suh had applied for an Occupational Trainee Subclass 442 visa in relation to which he needed to be the subject of an approved nomination for occupational training and that in the visa application he advised that his nominee was Tasko Development Pty Ltd (Tasko). The letter referred to the fact that Tasko had lodged a nomination for occupational training that on 29 January 2005 had been refused by the Department of Immigration and stated: “This information may lead the Tribunal to find that [the applicant did] not meet the criteria relevant to the grant of the visa, namely regulation 442.222.” 

4. The applicant was invited to comment in writing by 14 May 2007 and was informed that if the Tribunal did not receive comments within the period allowed it may make a decision on the review without taking further action to obtain his views and that he would lose any entitlement he might otherwise have had to a hearing. 

5. Included in the Court Book is a fax from Mr Suh to the Tribunal dated 9 May 2007 and received by the Tribunal on 12 May 2007.  In that letter he indicated that he thought the nominator was able to provide occupational training opportunities for someone like himself because it already provided “many people with workplace-based training for franchising purposes” and he understood that it had “sufficient training experience in internal training program and facilities to provide additional enhanced skills to [the applicant's] current professional career.” 

6. On 18 May 2007 the Tribunal invited the applicants to attend a hearing on 5 July 2007.  The invitation letter was addressed to the address nominated by the applicants as their address for service in the review application.  The applicants failed to attend the Tribunal hearing.  

7. In its decision the Tribunal referred to the fact that the nomination application had been refused by the Department.  It stated that the applicant had been invited by letter of 3 April 2007 to comment on information that would be part of the reason for affirming the decision under review.  It indicated that at the same time the Tribunal set the matter down for hearing on the basis that as the matter had been remitted back to the Tribunal it wanted to ensure the applicant had every opportunity to present his case.  The Tribunal then stated:

   The primary visa applicant failed to respond within the requisite period to the 359A letter.  The primary visa applicant failed to attend the scheduled hearing.  The Tribunal is thus able to proceed to decision without taking any further steps to elicit a response from the primary visa applicant. 

8. The Tribunal had regard to the criteria for Subclass 442 of Class TH as there was no evidence to suggest that the applicant met the criteria for any of the other subclasses for a Class TH visa.  It set out the criterion in clause 442.222 of Schedule 2 to the Migration Regulations that a nomination in respect of the occupational training had been lodged and approved by the Minister, except where occupational training was to be provided by the Commonwealth.  It found that the evidence was that there was no application made in relation to occupational training to be provided by the Commonwealth and that there was no approved nomination in place, as Tasko's nomination for occupational training had been refused on 29 January 2005 for reasons which were said to have been clearly articulated in the Departmental refusal.  Hence the Tribunal found the primary applicant did not meet the criterion in clause 442.222 and that on that basis it had no alternative but to affirm the decision under review that that applicants were not entitled to the grant of Educational (Temporary) (Class TH) visas.

9. The applicants sought review by application filed in this Court on 30 August 2007.  There are two grounds in the application.  The first is that: “The applicant provided comments on information as the Tribunal requested him to do so within the requisite period, but it was denied by the Tribunal” and the second that: “The applicant has no evidence that the Deligate (sic) of Minister requested further information from the nominator.”  These grounds were reiterated in the accompanying affidavit.  The applicants did not file written submissions, but Mr Suh was given the opportunity to make oral submissions. 

10. It is convenient to consider the second ground first and the issues that arise from that ground insofar as it is taken as an assertion that the Tribunal had an obligation to review the refusal of the nomination application as part of its review of the refusal of the visa application.  I note that the basis on which the matter was remitted by consent to the Tribunal on 5 March 2007 suggested that the Tribunal had such an obligation.  However there is subsequent appellate authority of the Federal Court of Australia to the contrary in Kim v Minister for Immigration and Citizenship [2007] FCA 138 of 9 March 2007. In Kim Lander J considered a Tribunal review of the refusal of an application for the same class of visa in issue in this case (indeed the same subclass) to which the criterion in subclause 442.222 applied where the nomination had been refused by the Department. 

11. Lander J found that a decision to refuse a nomination in respect of the occupational training was not an MRT reviewable decision as it was not prescribed under s.338(9) of the Migration Act1958 (Cth).

    
    

    His Honour referred to regulation 4.02(4), which prescribes MRT reviewable decisions for the purposes of s.338(9) and found that the provisions in that regulation did not govern the application for a nomination in respect of occupational training applicable to applications for subclass 442 visas and did not require consideration of the criteria in Part 442, in particular in subclauses 442.223(a) and (b) of Schedule 2 to the Migration Regulations (which are the considerations that the Minister is to have regard to in relation to nomination applications).

12. His Honour found on this basis that the nomination decision was not reviewable by the Tribunal, but went on to find that if such a decision was, contrary to his view, reviewable, it was not reviewable by the Tribunal at the instigation of the visa applicant, having regard to the provisions of s.347(2) and reg.4.02(5).  Lander J found that the only party who might have sought a review of the decision to refuse the nomination in that case was the applicant for a nomination (Shark Australia).  Shark Australia had not sought review by the Tribunal of the decision in relation to the nomination. 

13. Lander J referred to the earlier decision of Goldberg J in Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375 in which the view had been expressed that the Tribunal should have reviewed the whole process of decision-making in relation to the applicant’s visa, including that part of the process which determined that the applicant had not been nominated in accordance with the applicable regulation. However Lander J reiterated that in the case before him the decision to refuse the nomination was not reviewable by the Tribunal because it was not an MRT-reviewable decision and if it was it was only reviewable at the instigation of Shark Australia.

14. Prior to the decision in Kim, the view of Goldberg J in Tvarkovski had been taken to mean that the Tribunal had power to and ought to consider for itself whether or not an occupational training nomination that has been refused should be approved (see Lee v Minister for Immigration & Anor [2007] FMCA 1822 at [10] referring to a recommendation of the principal member of the Tribunal about review of all types of nomination refusals based on the approach in Tvarkovski).  However Tvarkovski was a decision of the Federal Court at first instance.  This Court is bound by the subsequent decision of Lander J sitting as the Full Court of the Federal Court on appeal from this Court in Kim in relation to the specific provisions in issue in these proceedings. Hence for the reasons given by Lander J in Kim the visa applicants in this case have no right of review of the nomination refusal by the Tribunal.  There is no suggestion that Tasko had sought review of that decision. 

15. Thus, insofar as ground two is intended to contend that the Tribunal should have reviewed the nomination decision, it does not establish that the Tribunal fell into jurisdictional error.  Insofar as it refers to whether the delegate requested further information from the nominator, the only decision under review in these proceedings is the Tribunal decision.  Given that, on the authority of Kim, the nomination decision was not reviewable by the Tribunal, it was under no obligation to seek information from the nominator.  This ground is not made out. 

16. That has ramifications in relation to the first ground in the application of 30 August 2007, which refers to the fact that the Tribunal incorrectly stated that there was no response to the s.359A letter within the requisite period. The Minister accepts that the facsimile of 9 May 2007 from the applicant was received by the Tribunal on 12 May 2007. While an issue was raised as to whether in fact it was a response to the s.395A letter or responsive to the issue raised in that letter (because it does not address the fact of the absence of an approved nomination as such but rather takes issue with the grounds on which the nomination ought, from the perspective of the applicant, to have been approved) I am not persuaded that the letter can be seen as unresponsive in the sense that it can be said that there was no response. That is particularly so in circumstances where this matter had been remitted on the basis that as the law as it stood at the date of the remittal the Tribunal ought to have reviewed the refusal of the nomination as part of its review of the refusal of the visa. In those circumstances the applicant's response in relation to why the nomination ought to have been approved can be seen, in a broad sense, to be addressing the absence of an approved nomination.

17. The Tribunal made an error of fact to state that it did not receive a response to the s.359A letter within the specified period. However in this case the Tribunal did not proceed to make its decision simply on the basis of an absence of a response to the s.359A letter (which may have constituted a jurisdictional error). Rather, the Tribunal also invited the applicant to a Tribunal hearing, which he did not attend. There is no suggestion that the Tribunal invitation to the hearing failed to comply with any of the requirements of the Migration Act. Hence, under s.362B of the Act as the applicant did not appear the Tribunal was empowered to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. While the Tribunal decision is expressed in terms of not taking further steps to elicit a response from the applicant, terminology more appropriate to circumstances where there had been a failure to respond to a s.359A letter, in fact in this case there was a basis on which the Tribunal could make the decision (because of the failure to attend the Tribunal hearing) without taking any further action in relation to the applicant.

18. Insofar as ground one raises the question of whether the Tribunal erred in failing to take into account the applicant's response to the s.359A letter, it is clear that it did not take that response into account. However because the Tribunal could not, as discussed in relation to ground two, review the nomination decision, the applicant's response could not have materially affected the outcome of the Tribunal's decision, in the sense that it could not have produced a different result. Even if the Tribunal had correctly acknowledged receipt of the response it was not obliged to refer specifically to the content of the response in its findings and reasons.

19. In any event, not every evidentiary consideration that a decision-maker is bound to take into account (but does not do so) will justify intervention by the Court (see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40 per Mason J). Even if it could be said that the Tribunal had fallen into error by failing to take into account the applicant's response to the s.359A letter in the sense considered in Peko-Wallsend, the decision should be allowed to stand as the evidence could not have materially affected the outcome of the decision and could not possibly have produced a different result (see Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82 at [104] and SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190). The Tribunal decision in this instance turned on the issue of the lack of an approved nomination. The applicant's facsimile of 9 May 2007 did not contain any information that could have supported a finding that a nomination had been approved by the first respondent and the Tribunal's decision would not have been any different had it had regard to that facsimile. In those circumstances the grant of relief would be futile and should be refused.

20. In oral submissions the applicant suggested that rather than asking him for information about the nominator, the Tribunal should have asked Tasko, his nominator, for information.  However, on the authority of Kim, the nomination was not reviewable by the Tribunal because it was not an MRT reviewable decision or (if that is wrong) as there had been no application for review of the nomination decision by the nominator, Tasko. In these circumstances the applicant's concerns address matters which it was not necessary for the Tribunal to consider and do not establish that it fell into jurisdictional error. Insofar as the applicant might be seen to be suggesting that the Tribunal was asking the applicant for information that was in some way outside s.359A of the Act, that does not establish a jurisdictional error on the part of the Tribunal.

21. In these circumstances, the application should be dismissed.

RECORDED  :  NOT TRANSCRIBED

1. The applicant has been unsuccessful and there is nothing in the material before the Court to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.  In this case the third and fourth applicants are minors.  Any costs order should be met by the first and second applicants.  The amount sought in this case is appropriate in the particular circumstances of this case having regard to the history of these proceedings. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  17 November 2008