TONG v Minister for Immigration

[2014] FCCA 1611

FEDERAL CIRCUIT COURT OF AUSTRALIA

TONG v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1611

Catchwords:
MIGRATION – Migration Review Tribunal – 457 visa – sponsorship cancelled – liability of lawyers for costs – application dismissed.

Legislation:  

Migration Act 1958, s.338
Migration Regulations 1994, cl. 457.223(4)(a)

Applicant: FEILIN TONG

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

MIGRATION REVIEW TRIBUNAL

File Number: MLG 717 of 2013

Judgment of: Judge Riethmuller

Hearing date: 21 May 2014

Date of Last Submission: 21 May 2014

Delivered at: Melbourne

Delivered on: 21 May 2014

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Mr Knowles

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 23 May 2013 be dismissed.

2. The First Respondent’s costs be fixed in the sum of $6,646.00.

3. The matter be adjourned to a date to be fixed for a show cause hearing to allow Rose Chai Lawyers to be heard on the question of why Rose Chai Lawyers should not be ordered to pay all or part of the First Respondent’s costs.

4. The Registrar of the Federal Circuit Court of Australia be requested to provide a copy of these Orders to Rose Chai Lawyers.

5. The First Respondent be excused from appearing on the next occasion.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 717 of 2013

FEILIN TONG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Migration Review Tribunal made on 6 May 2013.  The Tribunal determined that it did not have jurisdiction to review a decision of a delegate, of the Minister refusing to grant the applicant a Subclass 457 long-stay visa. 

2. Some history of the matter is necessary to understand what has occurred. In order to obtain a 457 visa, an applicant must have an approved business sponsor in order to fulfil an essential characteristic of this visa category.

3. In this case, Duck Duck Goose Bar & Grill Proprietary Limited applied to the Minister for approval to act as a sponsor.  This approval to act as a sponsor was granted on 10 November 2010.  Subsequently, Duck Duck Goose Bar & Grill Proprietary Limited nominated the applicant as a person that the company would sponsor.  This nomination was approved by the Minister on 21 October 2011.

4. Shortly before the nomination was approved, the applicant applied for the 457 long-stay visa. The application was made on 19 September 2011. Unfortunately, it appears that there were difficulties with the company, Duck Duck Goose Bar & Grill Proprietary Limited.  On or around 7 May 2012, a Departmental officer attended at the business premises, discovering that the business was no longer operating and that the applicant was no longer working for the business.

5. As a result, processes were put in train to cancel the sponsorship approval. Ultimately, the Department cancelled the business sponsorship approval of Duck Duck Goose Bar & Grill Proprietary Limited on 27 November 2012.  This left the applicant without an approved sponsor. 

6. The delegate of the Minister wrote to the applicant on 20 December 2012 identifying that one of the criteria for the grant of a Subclass 457 work visa is an approved nomination and that Duck Duck Goose Bar & Grill Proprietary Limited did not then have approval. The letter was quite forthright, stating:

   As a result, your visa application is unlikely to be successful.

7. The letter also asked the applicant to comment upon his intentions regarding the visa application:

   Including providing evidence that you are the subject of an approved nomination.

8. Effectively, the applicant was given a chance to provide details of any other approved nomination which may have provided a basis for the granting of a Subclass 457 visa application.  It does not appear that this letter was responded to, even though it was sent by email to his lawyer, [email protected]. 

9. On 22 January 2013, the delegate found against the applicant on the basis that he did not have a current approved sponsorship.

10. This finding was in accordance with clause 457.223(4)(a) of the Migration Regulations 1994 which states:

    457.223(4) The applicant meets the requirements of this subclause if:

    (a) either:

    (i) if the applicant and a business activity specified in the application and relating to the applicant were the subject of an approved business nomination under regulation 1.20H as in force immediately prior to 14 September 2009;

    (A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and

    (B) the approval of the nomination has not ceased to have effect under subregulation 1.20H(5) as in force immediately prior to 14 September 2009; or

    (ii) if a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act:

    (A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and

    (B) the approval of the nomination has not ceased as provided for in regulation 2.75

11. Following the decision, the applicant attended upon a different migration agent, Yu Shang Liu, who completed an application for review to the Migration Review Tribunal. This application was unsuccessful on the basis that the Tribunal did not have jurisdiction to hear such a review application, pursuant to s.338 of the Migration Act 1958.  That section relevantly provides:

    Migration Act 1958 – SECT 338

    Decisions reviewable by Migration Review Tribunal (1) A decision is an MRT-reviewable decision if this section so provides, unless:

    (a) the Minister has issued a conclusive certificate under section 339 in relation to the decision; or

    (b) the decision is an RRT-reviewable decision; or

    (c) the decision is to refuse to grant, or to cancel, a temporary safe haven visa.

    (2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:

    (a) the visa could be granted while the non-citizen is in the migration zone; and

    (b) the non-citizen made the application for the visa while in the migration zone; and

    (c) the decision was not made when the non-citizen:

    (i) was in immigration clearance; or

    (ii) had been refused immigration clearance and had not subsequently been immigration cleared; and

    (d) where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

    (i) the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

    (ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.    

12. As can be clearly seen from subsection (2)(d), the applicant had to have either an approved sponsor at the time of his application to the MRT or a sponsor who had not been approved but was subject to a pending review.  As there was no evidence that the applicant was, at that time, nominated by an approved sponsor, the Tribunal had no jurisdiction to hear a review application.  The Tribunal’s decision was, on the facts before it, quite correct.

13. The applicant appears to have then returned to Rose Chai Lawyers who have prepared, although did not add their name to, his application for judicial review before the Court. The application that he says the lawyers prepared lists eight grounds, all of which appear to have been drawn simply from somebody’s law school notes of potential grounds for judicial review (save for ground 2, which adds some context relevant to this particular case).  The grounds are in the following terms:

    1. Writ of Prohibition to stop the enforcement of the decision by Migration Review Tribunal that the Tribunal doe sot have jurisdiction in relation to the Applicant’s application for review.

    2. Writ of Certiorari to quash the decision made by Migration Review Tribunal there are jurisdictional errors in the decision in that Migration Review Tribunal misinterpreted regulations 4.02(1AA) and 4.04(4) of the Migration Regulations and s.338, s.347 and s.348 of the Migration Act, erred in the finding of fact that the applicant was not sponsored at the time of the application for review made on 22 January 2013 and failed to take into account the relevant consideration and failed to take into account that the delegate did not notify the Applicant under section s.57 of the Migration Act that the sponsorship was cancelled on 27 November 2012 prior to making decision to refuse.

    3. That there was a breach of the rules of natural justice occurred in connection with the making of the decisions.

    4. That the decision of the Migration Review Tribunal were not authorised by the enactment in pursuance of which it was purported to be made.

    5. That the procedures that were required by law to be observed in connection with the making of the decision were not observed.

    6. That the making of the decision by Migration Review Tribunal was an improper exercise of te power conferred by enactment in pursuance of which it was purported to be made.

    7. That the decision of Migration Review Tribunal involved an error of law, whether or not the error appears on the record of decision.

    8. That the decision of Migration Review Tribunal was otherwise contrary to law.

14. On the material contained in the court book, there does not appear to be any basis for judicial review of the Tribunal’s decision. 

15. When the matter came on for hearing before me, asking the applicant whether there were any other documents or material that might be relevant. He produced a decision record with respect to an apparent nominator, Jay Wang and Hugh Wu, relating to him and a nomination with respect to the regional sponsored migration scheme.

16. As this material had been produced at the last minute and had not been seen by lawyers for the Minister (and that the visa criteria are complex), I adjourned the matter to enable the Minister’s lawyers to investigate the providence of the document and its relevance in this case.

17. The matter back before me and has further evidence by way of affidavit.  It is now apparent that there were three separate visa applications over time.  It is useful that I set them out.

18. The first visa application was for a class BW subclass 856 visa made on 20 May 2010.  A nomination was made by a prospective employer and an application was made by the applicant.  On 9 November 2010, the prospective employer was approved and the nomination approved, but on 19 December 2011, Rose Chai Lawyers wrote withdrawing the application on behalf of the applicant.  Thus, this visa application came to an end.

19. On 19 September 2011, the applicant applied for a UC 457 visa.  This was the visa the subject of these proceedings. The nominator was Duck Duck Goose Grill, who was cancelled as an approved sponsor on 27 January 2012 as set out above.  On 22 January 2013, the visa application by the applicant, relying upon them as a sponsor, was refused and on that same day, his MRT application was lodged.

20. The MRT refused to hear the matter on the basis that they did not have jurisdiction, as he did not have a sponsor as at the date of the MRT application as required by s.338. It is this refusal that the applicant sought judicial review.

21. There was a third visa application for a class AN subclass 119 visa.  This was made on 29 June 2012.  It was with respect to this application that there was a refusal on 24 September 2013 with respect to Jay Wang and Qu Wu. On 17 December 2013, Rose Chai Lawyers wrote, on the applicant’s behalf, withdrawing this visa application, therefore bringing it to an end as well. 

22. Whilst the fact that there were three visa applications has created much documentation and some degree of confusion, it seems clear that each of the sponsors were with respect to different types of visa categories and that therefore there was no sponsor with respect to the class UC subclass 457 visa as would be necessary to give this application any basis upon which he could succeed before the court.

23. As the matter is not a matter over which the Migration Review Tribunal had jurisdiction to hear and determine, the grounds that are raised by the applicant in the document that he says was drawn by Rose Chai Lawyers, do not appear to address any matters relevant to the case before me.

24. It appears to me that the applicant’s application to the Migration Review Tribunal was bound to fail from the outset and that this application to the court was always bound to fail. 

25. In the circumstances, I therefore formally dismiss the applicant’s application.  Given the alleged role of Rose Chai Lawyers in this application which should never have been filed it is appropriate that I consider whether the lawyers should be jointly liable for the Minister’s costs. I therefore make orders for them to be given notice to show cause why they should not be subject to orders for costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  11 August 2014