Sun v Minister for Immigration
[2007] FMCA 765
•22 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SUN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 765 |
| MIGRATION – Educational (temporary) (class TH) visa – whether jurisdictional error – whether Court has power to review primary delegate decision – whether Applicant met requirements of clause 442.22 of Schedule 2 of Migration Regulations – application dismissed. |
| Migration Act 1958 |
| Kim v Minister for Immigration & Citizenship [2007] FCA 138 |
| Applicant: | RUI SUN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 930 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 19 April 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 22 May 2007 |
REPRESENTATION
| Applicant: | In person (assisted by interpreter) |
| Counsel for the First Respondent: | Mr R.C. Knowles |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 930 of 2006
| RUI SUN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter the Applicant who is unrepresented relies upon an Amended Application filed 15 November 2006. In the Amended Application the Applicant purports to seek judicial review of a decision dated 8 March 1999. That decision was in fact a decision of a delegate of the First Respondent. I am satisfied that this court does not have jurisdiction to entertain that application (see Kim v Minister for Immigration & Citizenship [2007] FCA 138 per Lander J at [18] and [19]).
However, at the hearing the First Respondent's counsel was prepared to accept that the Applicant effectively seeks judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 14 June 2006 and handed down on 26 June 2006. The concession was made having regard the fact that in the Amended Application the Applicant under the heading "Orders Sought by Applicant" refers to "the MRT's decision on 26 June 2006" and asserts that that decision was "wrong as well".
The Tribunal in its decision dated 14 June 2006 affirmed a decision under review, namely, a decision dated 8 March 1999 that the applicant should be refused the grant of an educational (temporary) (class TH) visa.
It is important to note that in fact a delegate of the First Respondent made two decisions, both dated 8 March 1999. The first was a decision refusing to approve a nomination put forward by a company, and the second, a decision by the delegate to refuse to grant the Applicant the occupational trainee visa referred to earlier in this judgment.
The Applicant is a citizen of the Peoples Republic of China. She had first arrived in Australia on 20 March 1997 as the holder of a temporary business visa. She departed Australia on 13 April 1997. She was then granted a further temporary business visa on 6 August 1997 and returned to Australia on 13 September 1997.
The Applicant subsequently obtained visitor visas on 8 December 1997 and 1 June 1998. Since the expiry of her last visitor visa on 12 December 1998, the Applicant has remained in Australia on bridging visas.
On 10 December 1998 the Applicant applied for the occupational trainee visa. In that application she stated that her occupational activity which she proposed to undertake in Australia was "(Construction Industry) Manager" (Court Book p.3).
Her application was supported by a nomination from Yon Fu Decoration Pty Ltd ("Yon Fu") (Court Book p.22).
The Court Book reveals that Yon Fu had specialised in building decoration and tiling, and in the nomination it was proposed the Applicant would undertake occupational training with Yon Fu in the following areas:-
(i)Studying and collecting the different patterns which are popular in Asia and western countries and their suitability to different styles of buildings.
(ii)The technology and application of the new adhesives currently used for the fixing of tiles.
(iii)Cutting skills and research work on the Australian supplies of off-cuts from ceramic and marble tiles (Court Book p.10).
In relation to training, the proposal from Yon Fu was that the Applicant would receive training:
“... in the uses and applications of building materials in building decorating, Import and Exporting procedures of building materials and the skills necessary for managing building construction.”
Reference was made in training to the Applicant obtaining "basic computer skills" and "some business English" (Court Book pp.10-11). By a letter dated 12 January 1999 (Court Book pp.22-23) a delegate of the First Respondent requested that the Applicant provide additional information in support of her application for the occupational trainee visa.
On 8 March 1999 a delegate of the First Respondent refused to approve a nomination put forward by Yon Fu (Court Book pp.25-28). In a covering letter dated 8 March 1999 attaching the decision record, a delegate of the First Respondent advised Yon Fu of the decision not to approve the nomination of Rui Sun as an occupational trainee. In that letter the author states,
“This decision is not subject to review.”
(Court Book p.29)
I accept as submitted by the First Respondent that the delegate was correct when it was asserted that that decision not to approve the nomination is not subject to review.
A further decision which directly related to the Applicant was the delegate's decision also dated 8 March 1999 refusing to grant the Applicant the occupational trainee visa (Court Book p.36).
Apparently the First Respondent acknowledged that the Applicant was not properly notified of the delegate's decision refusing to grant her the occupational trainee visa. It is claimed that she eventually was notified of the delegate's decision on 27 July 2005 (Court Book pp.34-35). It is not entirely clear to me why there was a delay of over six years from the date of the delegate's decision to the date of re-notification.
In any event on 17 August 2005 the Applicant applied to the Tribunal for review of the delegate's decision refusing to grant her the occupational trainee visa. In the review application form the Applicant claims,
“The nomination for the business sponsor, YON FU DECORATION P/L, should be approved. The details will be provided later.”
(Court Book p.57)
No further evidence or submissions were provided to support this contention. The Tribunal conducted a hearing on 13 June 2006 at which the Applicant gave evidence and was represented.
The Tribunal Decision
In its decision, the Tribunal refers to the following relevant evidence:
“17.At the hearing the visa applicant corroborated her visa history and she obtained permission to work on 20 February 2006 and has been working at Quarvane Pty Ltd since then. The firm makes frozen dumplings to supply to business and hotels. The visa applicant said she controls the manufacturing process for the dumplings. From about July 2005 until she obtained this job, she was a casual sales person, selling things in Victoria market but she did not have permission to work. Back in 2001 she started training and has completed a short course in making Dim Sum and a Certificate II in hospitality. The Yon Fu Decoration Pty Ltd was 'found' by her previous agent, Simon Feng, to provide training for a period of 6 to 12 months. Her previous agent introduced her to the business and assisted her to get the training, she left all of the sponsorship arrangements in the hands of that agent. She has never worked for Yon Fu Decoration Pty Ltd. In January 1999 the Department issued a letter requesting more information about the sponsorship, but the then agent did not notify her about this. Her then agent did not give her any information and she learned later that the sponsorship had been refused. In July 2005 the Department visited her and informed her that she had breached her working conditions. Her current agent filled out the application for review and also informed her that Yon Fu Decoration Pty Ltd was no longer able to act as a sponsor. The visa applicant said that the failed application has caused her great hardship.
18.The visa applicant's current agent at the hearing said that when he lodged the application for review he did not have all of the necessary documentation but lodged the application to remain within the time limitations. Her former agent advised the visa applicant that Yon Fu Decoration Pty Ltd was able to provide training. The previous agent had handled all of the discussion with Yon Fu Decoration Pty Ltd and the visa applicant had had no contact with the business. In May 2005 the Department re‑notified the visa applicant about her subclass 442 application and by then her previous agent was no longer acting for her. Her current employer would like to support her.
19.At the hearing the visa applicant provided original documents showing she has completed a short course in making Dim Sum and a Certificate II in hospitality, and a letter of support from her current employer, Quarvane Pty Ltd.”
(Court Book p.94)
In its findings the Tribunal relevantly stated:
“20.At the time the visa application was lodged, Educational (Temporary) (Class TH) contained the following subclasses: subclass 415 (Foreign Government Agency), subclass 418 (Educational), subclass 419 (Visiting Academic) and subclass 442 (Occupational Trainee). The only subclass in respect of which any claims have been advanced is subclass 442 (Occupational Trainee). There is no claim or evidence to suggest that the visa applicant meets key criteria for any of the other subclasses.
21.The purpose of the subclass 442 (Occupational Trainee) visa is stated as:
Temporary stay of persons to undertake a comprehensive training program of which at least 70% is workplace based.
The training must clearly relate to the person's current occupation or area of study where evidence is provided from the relevant overseas body that it is a mandatory requirement for the student to undertake practical experience. [emphasis in original]
22.Regulation 442.221(a) requires that the visa applicant satisfies the criteria in clauses 442.222 to 442.229.
23. Clause 442.222
442.222(1) Except in the case of an application made in relation to occupational training to be provided by the Commonwealth, a nomination in respect of the occupational training has been lodged and has been approved by the Minister.
24. The visa application was made on the basis that the visa applicant would was to be employed as an occupational trainee by Yon Fu Decoration Pty Ltd.
25. While the Tribunal is not bound by policy, it takes note of Procedures Advice Manual 3 - Schedule 2 Occupation Trainee Visa 442' at paragraph 16.1:
Consistent with Division 1.4A Temporary Business Entry sponsorship and nomination provisions, visa 422 nominations have a finite validity:
·For the purposes of approving it, a nomination may be regarded as valid for 12 months from date of its being signed by the nominator;
·For the purpose of granting a visa, the nomination may be regarded as valid for 12 months from date of its approval.
Policy envisages few circumstances where the period described above is likely to have elapsed before a decision is made.
However, if it does, under policy a fresh nomination is required, with a view to officers re-assessing whether it is one for approval and/or whether visa criteria can still be satisfied on the basis of the nominator's current circumstances.
26. On 8 March 1999 a delegate of the Department refused the application by Yon Fu Decoration Pty Ltd for nomination for occupational training. The nominator did not apply for a review of that decision. At the hearing the visa applicant said she had never worked for Yon Fu Decoration Pty Ltd and now works for an independent business in a different line of work, having undertaken some training on her own behalf in 2001 and 2002.
27. On the evidence before the Tribunal, the Tribunal is satisfied that there is no approved and valid nomination in existence for the visa applicant, and on that basis the Tribunal finds that the visa applicant does not meet the requirements of clause 442.222(1).”
(Court Book pp.94-95)
The Amended Application
In the Amended Application the Applicant refers to the following grounds:
“1.In the visa refusal letter of which DIMA sent on 8th of March 1999 to my sponsoring company (Yon Fu Decoration P/L), clearly indicates the reject decision was not subject to review. This was fault.
2.An important request letter which was sent by DIMA to require me to supply outstanding documents for my visa application (Subclass 442) was not sent to my Migration Agent. This was fault.
(Although it was showed in a document, the DIMA sent the letter on 12 of January 1999 to the applicant, but the applicant never received this letter.)
3.MRT decided that the applicant's sponsoring company (Yon Fu Decoration P/L) gave up the chance of an appeal to the DIMA's refusal decision issued on 8th of March 1999, and MRT used this reason to affirm DIMA's decision. This was fault.”
Contentions
The Applicant relied upon written contentions filed 15 November 2006. In those contentions the Applicant appears to criticise the First Respondent's Department and its correspondence with Yon Fu. Reference was made to a letter dated 12 January 1999 (Court Book p.22) which the Applicant claimed she did not receive. That letter referred to regulation 442.22 of the Migration Regulations and requested that the Applicant provide the following:-
“1.Details of your employment history, giving dates, description of occupation and name of employer, since coming to Australia on 13th September 1997.
2.Statement addressing the situation that despite the fact that you have been in Australia for an unbroken period of time since 8th December 1997 on a succession of visitor visas there apparently exists a continuing contract of employment in your home country. Please provide documentary support.
3.Please provide documentary evidence of the employment arrangements which apparently exist for you at the end of the proposed period of occupational training.
4.Details of your activities and sources of income in Australia since 13th September 1997.”
It should be noted in passing that the letter dated 12 January 1999 is addressed to the Applicant's home address which is also the postal address that appears on the Applicant's visa application (Court Book p.2). No reasonable explanation has been given as to why the Applicant did not receive the letter.
The Applicant claims she then lost the important opportunity or chance to provide the information which may have altered the delegate's decision refusing to approve the nomination of Yon Fu and which was otherwise relied upon by the delegate making a decision on the same day to refuse the Applicant's visa.
The Applicant referred to the significant delay between the date of the delegate's decision and notification.
Before the court the Applicant otherwise claimed that the decision was unfair.
First Respondent's Submissions
It was submitted on behalf of the First Respondent that there is no jurisdictional error. It is not necessary to refer in detail to the First Respondent's submissions save to note that it was submitted that the Tribunal made a finding open to it, namely, that on the evidence before it it did not consider that a valid nomination existed for the Applicant. It was submitted that at the time of the Tribunal's decision the Yon Fu nomination was approximately eight and a half years old and it no longer related to the Applicant's circumstances.
The First Respondent noted the Applicant had never worked for Yon Fu and was not at the time of the Tribunal's decision employed in any capacity that related to the occupational training described in the nomination and referred to earlier in this judgment.
It was submitted there was no evidence before the Tribunal that the Applicant since arrival in Australia in 1997 had ever worked in the building decoration industry. The nomination was therefore not for occupational training which the Applicant might seek to undertake at that time.
Reliance was placed upon paragraph 25 of the Tribunal's decision set out earlier in this judgment concerning the applicable policy on the finite validity of nominations. It was noted that there was no other nomination before the Tribunal. It was submitted that once the Tribunal had found there was no valid nomination in existence at the time of its decision it followed that there was nothing which the Tribunal could approve pursuant to subclause 442.22(1) of part 442 of Schedule 2 of the Regulations. Accordingly it was submitted the Tribunal was entitled to find that "no approved and valid nomination" existed.
Reasoning
In my view the submissions of the First Respondent are correct.
I can see no error in the Tribunal's findings. It made findings reasonably open to it on the evidence and consistent with the relevant regulation. It was clear that the Tribunal was entitled to be satisfied that there was no approved and valid nomination in existence for the visa Applicant. It was then titled to make a significant adverse finding that the Applicant did not meet the requirements of clause 442.222(1) of the Regulations.
The Applicant's Amended Application in my view is misconceived. The Applicant appears to complain about lack of due process, though I am satisfied that in the material before me there is no evidence that the Applicant was denied due process. It is clear to me that the Applicant has not responded to a request for further information, though in any event it is difficult to see how the Applicant could have provided further information which would have assisted the application. It is equally clear to me that the Applicant by her conduct could not have provided information which would have supported the original nomination by Yon Fu, to the extent that it would have enabled a different outcome. I cannot see on the material before me how Yon Fu could possibly be an approved nominator. Hence, in the absence of any other nomination before the Tribunal it is difficult to see any other conclusion open to the Tribunal other than to affirm the decision under review, and to find that the Applicant was not entitled to the grant of the occupational training visa.
It is not necessary for the court to consider other matters including the purported claim by the Applicant for damages. I am satisfied in the circumstances that that claim is misconceived.
Whilst on the one hand the court may have some sympathy for the Applicant given the extraordinary delay between the date of the delegate's decision and re-notification, that does not of itself provide a basis upon which the court should make orders in favour of the Applicant upon judicial review. Indeed, it might be considered somewhat remarkable that the Applicant has now managed to remain in Australia for a period of approximately 10 years in the absence of an approved nominator for what after all only commenced as a temporary visa application.
However, it follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 22 May 2007
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