Tran v Minister for Immigration - [2006] FMCA 300

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRAN v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 300

MIGRATION – Review of Migration Review Tribunal decision – refusal of a business skills visa – applicant unable to satisfy mandatory criteria for the class of visa sought – no reviewable error found – application dismissed.

PRACTICE AND PROCEDURE – Requests for adjournment – issue raised by counsel following the hearing – insufficient reason advanced to re-open the question.

Migration Act 1958, s.359A
Migration Regulations

Lobo v Minister for Immigration (2003) 132 FCR 93

Applicant:

THIEN NGHE TRAN

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

MIGRATION REVIEW TRIBUNAL

File Number:

SYG1496 of 2005

Judgment of:

Driver FM

Hearing date:

2 March 2006

Delivered at:

Sydney

Delivered on:

2 March 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr J D Smith

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The adjournment application filed in court on 2 March 2006 is refused.
The Migration Review Tribunal is joined as the second respondent to the judicial review application.
The judicial review application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1496 of 2005

THIEN NGHE TRAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 13 May 2005. The decision was notified to the applicant by letter of the same date. The MRT affirmed a decision of a delegate of the Minister not to grant the applicant a business skills (residence) (Class BH) visa. Background information is conveniently set out in the Minister's written submissions. I adopt for the purposes of this judgment as background paragraphs 3-13 of those written submissions:
The applicant is a citizen of Vietnam. On 23 February 2001, the applicant applied for a business skills (residence) (Class BH) visa on the basis that he and his wife owned shares in a company (SVN Pty Limited) that operated a whitegoods and electrical retail business, that the applicant was a director of that company and that he maintained a direct and continuous involvement in the management of that business day to day and also in making decisions that affected the overall direction and performance of the business.
The criteria for the grant of that visa was contained in clause 845 in Schedule 2 to the Migration Regulations 1994 (“the Migration Regulations”). It will be necessary in due course to have regard to several of the criteria set out in that clause.
On 17 May 2001, a delegate of the respondent made a decision to refuse to grant the applicant the visa on the basis that he failed to satisfy a requirement in respect of net assets held by the applicant in the business (see clause 845.215). The applicant applied successfully to the MRT for review of that decision and the application was remitted to the Department for reconsideration with the direction that the applicant met the requirement in respect of which he had been initially refused the visa. On 14 April 2003, another delegate of the respondent made a decision to refuse to grant the applicant the visa on the basis that he failed to satisfy other criteria for the grant of the visa. The applicant applied to the MRT for review of that decision. It is the MRT’s decision upon the application for review of the second delegate’s decision that is the subject of these proceedings. On 13 May 2005, the MRT affirmed the second delegate’s decision on the basis that the applicant did not satisfy the criteria found in clauses 845.216 and 845.222.
At the relevant time (namely, 23 February 2001) clause 845.216 stated that at the time of the visa application:
In the 12 months immediately preceding the making of the application, the applicant as the owner of an interest in a main business or main businesses in Australia maintain direct and continuous involvement in the management of that business or those businesses from day to day and in making decisions that affect the overall direction and performance of that business or those businesses. (emphasis added)
It was the applicant’s claim that his role in the company, apart from being a director, was that of a floor manager and that he was responsible for all stock, sales, delivery and personnel concerns. However, after considering the duties performed by the applicant the MRT was not satisfied that those duties and the activities carried out in the performance of them meant that the applicant maintained direct and continuous involvement in the management of the business from day to day and in making decisions that affected the overall direction and performance of the business: court book, page 463 at paragraphs
30-33. For that reason, it found that the applicant did not satisfy clause 845.216.
The MRT then turned to consider whether the applicant satisfied the requirements of clause 845.222. That clause required, that, at the time of the decision, the applicant’s score on the business skills point test was not less than a number of points specified for the purposes of the clause by the Gazette Notice. The relevant Gazette Notice (No. S238 of 27 June 1997) provided that the number of points required for the business skills point test was 105 points. There is no issue in these proceedings in that respect.
The points scored under this clause are the sum of the applicant’s scores under Division 1.4 of Schedule 7 and Parts 2, 3 and 4 of that Schedule. The relevant parts of Schedule 7 are set out in the MRT’s decision: see court book, pages 464, 465, 467 and 468. The MRT first considered the points to be scored in respect of the age of the applicant at the time of the application as set out in Part 2 of Schedule 7: see court book, page 464 at paragraph 36. The MRT found that at the time of the application, 23 February 2001, the applicant was 50 years of age, having been born on 5 November 1950. Accordingly, it found that the applicant received 10 points under Part 2 of Schedule 7 to the Regulations. This finding appears to be the subject of Ground 1 of the application which is dealt with below.
The MRT next turned to the points to be scored under Part 3 of Schedule 7 being related to the language ability of the applicant. In this respect the MRT had regard to the guidance provided by policy in respect of language ability: court book, pages 465-466. It found that there was no evidence to suggest that the applicant had completed a Diploma or Higher Degree or Trade Certificate that required at least 2 years full-time study or training that was conducted in English or indeed, 1 year full-time study or equivalent where instruction was in English. It noted that the applicant had not undertaken an IELTS test in the 12 months prior, or during the process of the application at the time of the decision although he had booked 2 tests in Vietnam for 8 January 2005 and 9 April 2005. Further, the MRT noted that at the hearing held by it the applicant did not speak in English and that another of the Directors of the company stated at the hearing that he dealt with the accountant in the company because, amongst other things, of the visa applicant’s level of English. On this basis the MRT concluded that the applicant had limited ability in English and so scored 10 points under Part 3 of Schedule 7. This finding appears to be the subject of Ground 2 of the application.
The MRT next turned to consider the net assets of the applicant or of the applicant and his spouse together as required under Part 4 of Schedule 7. It found on the material before it that the applicant had net assets of not less than the equivalent of $500,000 but less than the equivalent of $1,500,000.00 and so pursuant to Item 7407 found that the applicant received 5 points: court book, page 468 at paragraph 58. This finding does not appear to be subject to any ground in the application.
Finally, the MRT turned to Division 1.4 of Schedule 7 relating to the establishment of the business in Australia. It proceeded on the basis that the applicant was entitled to the maximum score in this respect, 60 points.
For these reasons the MRT found that the applicant’s score on the business skills points test was 85 points and that he did not meet clause 845.222.
The applicant relies on his judicial review application filed on 8 June 2005. He also filed written submissions on 18 October 2005. The applicant told me from the bar table that he has been using as his address for service the address of a Mr Daniel Ong who has been advising and assisting him in relation to these proceedings. I do not know whether Mr Ong is a legal practitioner. He has not filed any notice of appearance on behalf of the applicant. He may be a migration agent. In any event, the applicant told me from the bar table that he had dispensed with Mr Ong's services last week.
Nevertheless, the applicant sought to file in court at the trial today an application and supporting affidavit using the same address for service. He told me that he had prepared these himself. In the application filed in court by leave today the applicant sought an adjournment of the hearing of this matter until 22 March 2006. The reason for the adjournment advanced in the supporting affidavit is that the applicant had been in Vietnam and had come back to Sydney apparently later than he had anticipated. He says that he has not had much time for the arrangement of legal advice. I refused the application for an adjournment. I took into account that the principal application has been on foot since 8 June 2005. The applicant has had plenty of time to arrange whatever legal assistance he required. He has apparently chosen to use the services of someone who was unwilling to disclose his involvement to the Court or to the respondents. The applicant also claimed from the bar table that he has been unwell. However, I have no evidence of sickness apart from what the applicant told me from the bar table. I was unwilling to grant an adjournment simply on the basis of those assertions.
The judicial review application contains three grounds of review. These are dealt with by Mr Smith in paragraphs 14-17 of the Minister's written submissions. I agree with and adopt those submissions for the purposes of this judgment:
Ground 1
The first ground, as stated, is that the applicant was born on 5 November 1950 and up to the date of application the applicant has 20 points. This ground appears to be related to the MRT’s finding in respect of the points test found in Part 2 of Schedule 7, the age of the applicant. However, the MRT found that the applicant was born on 5 November 1950 and was correct, mathematically to find that at the time of the application was 50 years of age. On that basis the MRT was obliged to find that the applicant was not less than 50 years but less than 55 years and so was entitled to 10 points under Item 7204 of Part 2 of Schedule 7. There is simply no basis for the applicant’s assertion that he was entitled to 20 points because in order for that to be the case he had to have been at the time of the application not less than 20 years but less than 30 years. This ground ought to be rejected.
Ground 2
This ground is that the applicant had completed a Certificate IV in Business Studies (Distance Learning). There was before the MRT a Certificate to support the applicant’s assertion: court book, page 350. However, that Certificate said no more than to certify that the applicant had successfully completed the requirements of the prescribed course and had been awarded the Certificate IV in Business Studies in Sydney on 27 July 2001. [There was] no evidence before the MRT, suggesting that the applicant had completed a diploma, degree, higher degree or trade certificate that required either at least 2 years full-time study or training or at least 1 year full-time study or equivalent part-time study where instruction was in English. This ground too, ought to be rejected.
Ground 3
This ground is that the applicant in the last 12 months immediately preceding the making of the application maintained direct and continuous involvement in the management of that business from day to day and in making decisions affecting the overall direction and performance of the business. This ground is supported by an assertion in the applicant’s written submissions that he was involved with day to day management for his joint business and that he wishes to give further evidence on the hearing of this application. However, the applicant does not appear to take issue with the MRT’s construction of the requirement found in clause 845.216, but rather, with its finding of fact upon the application of that provision. Accordingly, this is not a case where the MRT has misconstrued the requirements of a statutory criterion for the grant of a visa, for example by applying a policy which was narrower than that criterion: cf. Lobo v Minister for Immigration (2003) 132 FCR 93. It is abundantly clear from the MRT’s decision that it applied the very words of the [enactment]: court book, page 463 at paragraphs 30-33. In light of this, this ground raises no more than the merits of the MRT’s decision and is not one which raises a jurisdictional error.
In his written submissions the applicant raises a number of matters regarding the second delegate's decision, including the fact that the second delegate did not provide an interpreter for the interview. However, even if it where true that the procedure adopted by the delegate was not fair, that unfairness would not affect the MRT’s decision upon review of the delegate’s decision. Further, the fact that the applicant says now that he required an interpreter to understand the delegate underscores the MRT’s finding in respect of the level of his English language ability.
The applicant told me that he had not received the Minister's submissions. They were couriered to the applicant's address for service on 28 February 2006. Assuming that this was the address of Mr Ong rather than the applicant's address then it is plausible that Mr Ong may not have passed on the submissions to the applicant. I dealt with the circumstances by requiring Mr Smith to present the Minister's submissions orally first.
In the course of argument I raised with Mr Smith the issue of the disclosure by the MRT of potentially adverse material pursuant to s.359A of the Migration Act 1958 (Cth) (“the Migration Act”). The MRT wrote to the applicant care of Mr Ong on 25 November 2004 pursuant to s.359A (court book, page 419). Mr Ong responded on behalf of the applicant by letter dated 26 December 2004 (court book, page 423). The letter bears an MRT receipt stamp of 30 December 2004. At page 18 of its reasons (court book, page 461), the MRT notes the invitation to comment and the response. It appears from the last sentence of paragraph 18 that the response was provided twice. There is no obvious reference to the comments provided on behalf of the applicant in the remainder of the MRT decision. It does not follow, however, that the comments were not taken into account.
The applicant raised at the hearing conducted by the MRT many of the issues that were raised in the written comments. A significant concern of the applicant was that he had been interviewed by the Minister's Department on 3 February 2003 without the assistance of an interpreter. In paragraph 29 of its decision on page 463 of the court book the MRT accepted that the applicant would have had difficulties in understanding questions asked of him at that interview. While the issue was not dealt with as clearly as one might like, on a beneficial reading, I am satisfied that the information derived at the interview was not a reason or part of the reason for the confirmation of the delegate's decision by the MRT.
I find that the MRT met its obligation of disclosure pursuant to s.359A of the Migration Act. I further find that there was no jurisdictional error in the MRT decision flowing from its treatment of the comments provided on behalf of the applicant in response to the s.359A letter.
In his written and oral submissions, the applicant took issue with the MRT’s reasoning concerning the question of whether he met the criterion set out in regulation 845.216. The applicant's argument is that he was the dominant investor in the business and hence he was responsible for it. However, in terms of what the regulation says the applicant was unable to satisfy the MRT that he was over the period of 12 months immediately preceding his application involved in the day to day management of the business to the requisite standard.
In my view, the adverse finding made by the MRT in relation to this criterion was open to it on material before it. Even if some error had been made by the MRT in relation to that criterion and, in my view, none was, it would make no difference. The applicant was unable to meet the requisite points test pursuant to clause 845.222 of the regulations. It was impossible for the applicant to mount any serious challenge to the MRT’s reasoning in relation to the points test. Even if some jurisdictional error had been made by the MRT it would have been futile to remit the matter to the MRT because the applicant simply could not qualify for the visa he sought.
I find that the decision of the MRT is free from any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
Costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,500. I accept that that is an appropriate assessment on a party and party basis. The applicant was concerned that he might need to pay by instalments. As I explained to him that is a matter he could discuss with the Minister's legal representatives. I will not order that he pay costs by any particular date. The orders are that the application is dismissed and the applicant is to pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
I will also order that the Migration Review Tribunal be joined as the second respondent to the application.

Addendum

Following the hearing in this matter my associate informed me that, during the course of the hearing when she had left the court room upon an administrative errand, she was approached by a person in the corridor who enquired about the fate of the adjournment application. On being told by my associate that the adjournment application had been refused the person expressed surprise.
On 3 March 2006 my associate was telephoned by a person claiming to be the applicant’s barrister who enquired whether the issue of an adjournment could be re-opened. The person told my associate that he had been in Brisbane and unable to attend the hearing and that he had been under the impression that an adjournment had been granted. After consulting me, my associate informed the person that a decision had been made and reasons given and that the issue could not be re-opened. The person wished to pursue the matter and my associate requested that he put it in writing.
On 7 March 2006 my associate received by facsimile a letter from Mr Sam H Nguyen of counsel dated 6 March 2006. In that letter Mr Nguyen relevantly states that:
a)he acts for the applicant;
b)he was “advised” to appear in court on 2 March 2006, however on the previous evening the applicant had advised him by telephone that the matter had been adjourned to 22 March 2006;
c)Mr Nguyen ventures the opinion that the applicant misinterpreted the Court seal as confirmation that the adjournment application seeking an adjournment to 22 March 2006 had been granted;
d)the applicant served the adjournment application on the Minister’s lawyers in the belief that he had received the Court’s “consent”;
e)Mr Nguyen requests that the matter be opened on compassionate and compelling grounds, namely:
i)there was an honest mistake and the applicant did not receive a fair and “prepared” hearing;
ii)due to language difficulties he could not communicate and understand the hearing properly; and
iii)in the absence of counsel the applicant did not have proper legal representation and could not effectively exercise and express his legal rights and entitlements at the hearing.

In my view, insufficient reason has been advanced to re-open either the issue of an adjournment or the substantive issues dealt with at the hearing. The legal merits of the substantive application are dealt with in my reasons above and I cannot usefully add to those reasons. Mr Nguyen’s understanding of the circumstances of the adjournment application is incorrect. The applicant could not have misinterpreted the Court seal on the adjournment application before the hearing because there was no court seal on it. The registry had declined to accept it for filing and it was ultimately filed by leave in court. I am informed by my deputy associate that, immediately before the hearing, the person outside court who spoke to my associate during the course of the hearing, attempted unsuccessfully to serve an unsealed copy of the adjournment application on the Minister’s solicitor. If, indeed, Mr Nguyen acted for the applicant prior to the hearing on 2 March 2006 there is no plausible explanation for his non-attendance at court.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 8 March 2006