Sundaze International Pty Ltd v Minister for Immigration

[2004] FMCA 814

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUNDAZE INTERNATIONAL PTY LTD v MINISTER FOR IMMIGRATION [2004] FMCA 814

MIGRATION – Review of Migration Review Tribunal decision – refusing to grant approval as standard business sponsor – no reviewable error – application dismissed.

Migration Act 1958 (Cth), ss.359, 359A, 360, 499
Migration Regulations 1994, Reg. 1.20D(2)(c)(i), 2(c)(ii)
Judiciary Act 1903 (Cth), s.39B

Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102
NADN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 291
NANF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 292
Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140
Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant: SUNDAZE INTERNATIONAL PTY LTD

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1275 of 2004

Delivered on: 25 November 2004

Delivered at: Sydney

Hearing date: 14 October 2004

Judgment of: Lloyd-Jones FM

REPRESENTATION

Applicant appeared in person with the aid of an interpreter.

Counsel for the Respondent: Mr J Potts

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant is to pay the Minister’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1275 of 2004

SUNDAZE INTERNATIONAL PTY LIMITED

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This is an application for a review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 10 March 2004 affirming the decision of the delegate of the respondent (“the delegate”) made on 31 October 2002 refusing to grant the applicant approval as a standard business sponsor.

Background

1. The applicant is a company incorporated in New South Wales and carries on the business trading under the name “Price War” (Court Book pp.18-19) (“CB”).  On 21 October 2002 it applied for approval as a standard business sponsor (CB pp.1-68), ostensibly at least to enable an employee, Mrs Jia Shao, (“the proposed nominee”) to be sponsored by the applicant for a long-stay business visa.

2. Following the delegate’s refusal of the application on 31 October 2002, the applicant applied to the Tribunal on 22 November 2002 for a review of that decision (CB pp.77-82).

3. On 30 April and 7 May 2003, the Tribunal wrote to the applicant care of its migration agent, pursuant to s.359 of the Migration Act 1958 (“the Act”) (CB pp.89-91), the letter appearing at pp.84-85 is marked “Draft” and was presumably not sent. Further material was then submitted by the applicant’s migration agent (CB pp.93-306). On 26 September 2003 the Tribunal invited the applicant to attend a hearing to give evidence and present arguments (CB pp.307-308). Mr Jian (Kevin) Ren, a director of the applicant, attended the hearing (CB p.316 [2]). On 10 March 2004 the Tribunal gave its decision (CB pp.313-318) which was sent to the applicant’s migration adviser under cover of a letter of the same date (CB pp.311-312). The Tribunal affirmed the decision of the delegate.

The Tribunal’s findings and reasons

1. The delegate initially refused the applicant’s application on the basis that the applicant did not meet the requirements of Reg. 1.20D(2)(c) of the Migration Regulations 1994 (“the Regulations”). The Tribunal’s review therefore focussed on whether the applicant met the requirements of that paragraph of the Regulation. Reg. 1.20D(2)(c) states:

   “The Minister must approve the application if:

   (c)The Minister is satisfied that the applicant for approval:

   (i)will introduce to, or utilise or create in Australia, new or improved technology or business skills; or

   (ii)has a satisfactory record of, or a demonstrated commitment towards training Australian citizens and Australian permanent residents in the business operation of the applicant in Australia …”

2. The Tribunal noted that the applicant claimed that his business promoted new products in the Australian domestic market and also the international market. The Tribunal also noted that the majority of new products introduced into Australia by the applicant had already been available on the Australian market through other brands and shops. The Tribunal did not therefore consider that the sale of the applicant’s products constituted introducing, utilising or creating new or improved technology or business skills (CB p.317). The Tribunal observed that the applicant’s specific business interest was the retailing of a variety of goods, including importing and exporting, and that at the hearing the applicant, represented by Mr Ren, had claimed that the proposed nominee had an understanding of the cultural differences between Australia and China and was familiar with Chinese customs. The Tribunal was not, however, satisfied that this equated to “new or improved business skills”, nor a “specialist skill” as defined within the Immigration Law and it referred to PAN3: Division 1.4A – Temporary Business Entry: Sponsorship and Nomination, to which it was bound to have regard: s.499 of the Act (CB p.317). Based on the evidence before it, the Tribunal found that on a balance, the applicant did not satisfy Reg. 1.20D(2)(c)(i) of the Regulations (CB p.317).

3. The applicant claimed that it conducted weekly training to all staff and formal training for three non-Australian “on the job” trainees. At the hearing the applicant claimed that further “on the job” training was to be conducted by the proposed nominee (CB pp.317-318). The Tribunal found that there was no evidence before the Tribunal that the business had a satisfactory record of training Australian residents or citizens. The Tribunal referred to additional material provided to it, but noted that it had had given less weight to it, as it appeared to relate to courses completed by employees in their own time, whilst working part-time for the applicant. In the absence of detailed training plans, either current or for the future, the Tribunal was not satisfied that the applicant’s commitment satisfied the requirements of Reg. 1.20D(2)(c)(ii) of the Regulations (CB p.318).

The application for review of the Tribunal’s decision

1. On 30 April 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:

   “(1)There was an error or law in the Tribunal’s decision constituting a jurisdictional error.

   (2)There was procedural error in the Tribunal’s decision constituting an absence of natural justice.”

2. These grounds were repeated with detailed particulars within the application.  They are too extensive and detailed to reproduce here, however, I adopt a summary of those particulars as suggested by the respondent’s Counsel as a condensing of the grounds upon which relief is sought:

   a)The Tribunal did not comply with its obligations under s.359 of the Act, and did not have regard to certain information submitted by the applicant, and ignored certain other information provided by the applicant.

   b)The Tribunal did not comply with its obligations under s.359A of the Act. The Tribunal’s decision was:

   “… mainly based on its [sic] ‘curious to know how the proposed nominee, who required an interpreter duringthe [sic] hearing would be able to conduct training …’.  In other words, English ability is a key issue for affirming the decision that is under review”.   (Errors in original)

Submissions

1. The applicant appeared self represented with the aid of an interpreter.  The applicant attended a directions hearing on 11 August 2004 and consented to Short Minutes of Order at that time which included the filing and serving of any amended application and any evidence upon which it proposed to rely at the hearing.  However, the applicant did not file any amended application or written submissions prior to the hearing.

2. When the applicant was invited to make oral submissions before me in support of its case, Mr Ren, through the interpreter, gave an explanation of the company’s training plan, as set out in the Court Book (pp.63-64) and the training limit in the Court Book (p.293).  The applicant claimed that the Tribunal ignored the content and operation of these training plans. Mr Ren also addressed the Tribunal’s concern about the proposed nominee’s lack of English proficiency and her ability to conduct training and impart knowledge to Australian citizens and permanent residents without this requisite language skill.  Mr Ren referred to his letter to the Department dated 17 October 2002 where he emphasised the importance of the proposed nominee’s extensive knowledge of Chinese business and how she would convey this knowledge to local staff

3. Mr Ren then provided the Court with a detailed view of the rapid development of the applicant’s business and the good relationship it had developed with China, its attention to the training plan, its sponsorship of Chinese cultural groups and the sound relationship it had with Chinese government officials visiting Australia.  Mr Ren then went on to explain the importance of the proposed nominee’s role within the organisation and the impact that she was going to have on staff training and its overall importance to the success of the company.

4. Mr J A C Potts of Counsel, appearing for the respondent, filed written submissions prior to the hearing which have been helpful and upon which I have relied extensively in the preparation of this judgment. It was submitted that the first ground of review, in so far as it alleges a failure to comply with s.359 of the Act, is misconceived. It was submitted that the Tribunal did not breach s.359 of the Act by providing the applicant with an opportunity to provide further information and it is apparent that the applicant’s real complaint is that the Tribunal failed to take into account further information provided by the applicant. The material which the applicant said the Tribunal failed to consider was provided by the applicant by letter dated 13 June 2003 (CB pp.93-96), and in its migration agent’s original covering letter dated 20 October 2002, submitted with the applicant’s application for approval to the Department (CB pp.1-8).

5. Counsel submitted that this ground of review is without substance.  The Tribunal referred to the evidence provided by the applicant, and noted that the applicant claimed to conduct weekly training for all staff and formal training for three non-Australian “on the job” trainees.  Despite this evidence, the Tribunal was not satisfied that the applicant had a demonstrated record of training, or a satisfactory commitment towards training as required by Reg. 1.20D(2)(c)(ii) (CB pp.316-318 at [9], [10], [15], [22] and [23]).  It was submitted that this was a conclusion on the facts that was open to the Tribunal on the evidence before it and there was no failure to consider the material as the applicant alleged.  It was further submitted that this ground of review should be rejected.

6. In respect of the second ground of review, the applicant claimed that the Tribunal failed to comply with s.359A by basing its decision on the English language skills of the proposed nominee. The applicant referred to a comment made during the hearing, recorded by the Tribunal in paragraph 22 of its reasons for decision (CB p.318). It was submitted that there was no merit in this ground for review. The Tribunal, in its reasons for decision, indicated that it put to the applicant that it was curious as to how the proposed nominee, who required an interpreter during the hearing, would be able to conduct training and impart knowledge to Australian citizens and permanent residents. Mr Ren responded to this question posed by the Tribunal and accordingly, it was submitted, was provided with an opportunity to address the matter and was therefore afforded natural justice.

7. It was submitted that, even assuming this was a matter that was required to be put to the applicant under s.359A, at best the only breach by the respondent could have been of s.395A(2), which requires the information and invitation to comment on it, be given by a method specified by s.379A. Counsel submitted that in the context of s.424A(2), being materially identical to s.359A(2) for the purposes of this case, a failure to comply with that sub-section is not a jurisdictional error, provided natural justice is otherwise observed: Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [25]-[27]; applied in NADN v Minister for Immigration & Multicultural & Indigenous Affairs; and NANF v Minister for Immigration & Multicultural & Indigenous Affairs at [54]-[56]. It was also submitted that natural justice was accorded to the applicant when it was given the opportunity to comment on the matter at the hearing and any breach of s.359A(2) was not a jurisdictional error.

8. It was further submitted that the Tribunal did not appear to draw any adverse inference based on this particular factual matter and there was nothing on the face of the Tribunal’s reasons to suggest it did not accept the explanation offered by the applicant in response to this query.  The Tribunal found that there was no evidence of the applicant having a “satisfactory” (past) record of training Australian residents or citizens.  The nominee’s proficiency in English could not have played a part in this conclusion, Counsel submitted, as the Tribunal’s question had been how she, “would be able to conduct training”, given the applicant’s assertion that special training for staff of the business “is to be conducted by the proposed nominee”.  Counsel further submitted that these were matters relating to contemplated future training and that the Tribunal’s finding on the applicant’s commitment to future training being insufficient was predicated chiefly on the absence of any detailed training plans, either current or future.  It was argued that there was nothing in the Tribunal’s reasons that would suggest it regarded a lack of English proficiency on the nominee’s part as in any way significant and therefore this ground of review should also be rejected.

Reasons

1. Based on the oral and written submissions of Mr Ren, five issues have been identified by him which he claim led to jurisdictional error.  For an applicant to be successful in the grant of a standard business sponsorship visa there are a number of regulations which it must satisfy.  In particular Reg. 1.20D(2) states:

   “The Minister must approve the application if:

   (d)The Minister is satisfied that the applicant for approval:

   (ii)has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia”

2. In respect of this regulation the Tribunal was considering the training plan submitted by the applicant (CB p.63).  The Tribunal considered copies of the training agreements (CB p.316 [14]) in conjunction with the frequency and nature of the training program made particular findings concerning that program (CB p.317 [22]).  The Tribunal undertook the relevant considerations in respect of the training and assessed that program against the requirements of the regulation.

3. The Tribunal did raise the query in respect of the proposed nominee’s English proficiency against the background of the requirements of the regulation within 1.20D(2)(c)(ii).  However, the Tribunal did not make any reference to rejection of the application on the basis of the lack of English proficiency demonstrated by the proposed nominee.  The issue of which the Tribunal was not satisfied was the planning program, because it lacked sufficient detail and the Tribunal was not satisfied that it met the criteria required by the regulation.  The reasons for that decision are quite clearly set out in the Tribunal’s findings (CB p.318 [22]-[24]).

4. The third issue raised by the applicant was that the Tribunal failed to comply with s.359A of the Act. The argument advanced by Mr Ren was that the Tribunal did not provide the applicant with information regarding the proposed nominee’s English proficiency and the reason that the visa application had failed was because of her lack of English proficiency. The Tribunal wrote to the proposed nominee on 30 April 2003 inviting her to provide further information. On 26 September 2003 representatives of the applicant were invited to attend a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the applicant’s application. The Federal Court of Australia-Full Court decision in Minister for Immigration & Multicultural & Indigenous Affairs v Awan examines whether the Tribunal is obliged to provide particulars of information and explanations of relevance to the applicant in writing. At issue in that case was whether there was a failure by the Tribunal to comply with its obligations under s.359A of the Act because it failed to provide the applicant with written particulars of the information that it must have considered would be the reason or part of the reason for affirming the decision of the delegate of the Minister that the Tribunal was reviewing. The respondent’s Counsel also referred me to the relevant provisions in relation to s.424A(2) which, for the present purposes, are materially identical to s.395A(2).

5. Importantly, the Tribunal made its adverse decision on the content of the training program and not on the English proficiency of The proposed nominee. Any failure by the Tribunal to observe s.359A in relation to the proposed nominee’s English proficiency is irrelevant.

6. The Tribunal hearing took place in Sydney and the applicant appeared via a video link to Brisbane.  A letter dated 26 September 2003 inviting the applicant to appear at the hearing contained an oversight in the nominated time.  The invitation stated that the hearing was to commence at 10.00 a.m., but did not take into account the daylight saving arrangements in place in New South Wales at the time.  When the representative of the applicant arrived at the nominated hearing centre, he found the hearing delayed for one hour due to the time difference between the two states.

7. The applicant claimed that the invitation was a breach of s.360A of the Act because of the error in time (CB p.307). Under s.360A the Tribunal must give the applicant notice of the day on which and the time and place at which the applicant is scheduled to appear. While it is unfortunate that the applicant’s representative arrived one hour prior to the commencement of the hearing, I am not satisfied that the administrative oversight may have lead to circumstances where an error of law was made that may have resulted in jurisdictional error. There is no evidence before this Court that the decision maker identified the wrong issue, asked the wrong question, ignored relevant material or relied on irrelevant material in a way that affects the exercise of power resulting in an error of law.

8. The final issue raised by the applicant was that the hearing held by video conference was not as effective as in person and was less preferable to a face to face meeting and claimed that the meeting was in breach of s.360 of the Act. There is no provision with the section that specifies that the meeting must be face to face and cannot occur via the medium of video link.

Conclusion

1. The applicant in these proceedings was representing itself.  Where an applicant is self represented the Court must independently consider whether any arguable case based on the material could have been made out:  Yo Han Chung v University of Sydney & Ors.

2. I have not been able to identify any ground that the Tribunal has committed any jurisdictional error.  The applicant’s claim should be dismissed.

1. I am satisfied that an order for costs should be made in this matter.  I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:  Menna McMullan

Date:  25 November 2004