Tunc v Minister for Immigration & Anor
[2008] FMCA 1498
•20 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TUNC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1498 |
| MIGRATION – VISA – Educational (Temporary) (Class TH) visa – Subclass 442 (Occupational Trainee) – where nomination application refused – whether Tribunal erred in not reviewing the refusal of a nomination application – whether a decision to reject an application for approval of a nomination is an MRT-reviewable decision – no jurisdictional error. LAW REFORM – Whether applicants should be given a real opportunity to address nomination refusals considered. |
| Migration Act 1958 (Cth) ss.338, 347, 359A Migration Regulations 1994 (Cth) subclause 442.222(1) of Schedule 2, Regs 4.02(4)(e), 5.19(1B) |
| Kim v Minister for Immigration and Citizenship [2007] FCA 138 followed Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375 Lee v Minister for Immigration & Anor [2007] FMCA 1822 Chae v Minister for Immigration & Anor [2008] FMCA 829 Kim & Anor v Minister for Immigration & Anor [2006] FMCA 1206 Dai v Minister for Immigration and Citizenship [2007] FCAFC 199 |
| Applicant: | DILEK TUNC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1984 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 October 2008 |
| Date of Last Submission: | 20 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2008 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitor for the First Respondent | Ms Griffin |
| Solicitors for the Respondents | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,400.00.
I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1984 of 2008
| DILEK TUNC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant asks the Court to review a decision of the Migration Review Tribunal refusing her an Educational (Temporary) (Class TH) visa. The Tribunal handed down its decision on 4th July 2008, affirming the decision of a delegate of the Minister for Immigration and Citizenship that found that she was not entitled to the grant of that visa.
The Applicant asks the Court to make orders cancelling the Tribunal’s decision and requiring the Tribunal to review the application again. The ground upon which she relies is that the Tribunal made an error of law by not reviewing the refusal by the delegate of the Minister of the nomination of her employer. The Applicant claims in her application that despite the decision of the Federal Court in Kim v Minister for Immigration and Citizenship[1] the Tribunal was able to review the nomination refusal on the basis of the decision in Tvarkovski v Minister for Immigration and Multicultural Affairs[2].
[1] [2007] FCA 138
[2] [2001] FCA 375
Background
The Applicant is a young lady who is a citizen of Turkey. She is 24 years of age and is currently employed as a Trainee Hairdresser. She has been employed in this capacity since June 2006 by a Hairdressing salon in Jersey Street, Paddington, New South Wales called “Strobe Hair”.
On 28th September 2007 she applied to the Department if Immigration and Citizenship for an Educational (Temporary) (Class TH) visa, Subclass 442 (Occupational Trainee). Her employer, “Strobe Hair”, nominated her for a two-year visa as a Trainee Hairdresser.
On 17th December 2007, a delegate of the Minister refused the Nomination of the Applicant’s employer. The delegate stated:
…I find that Ms Tunc could be seen as a competent Junior Hairdresser. I also find that to learn to provide Specialist Hair Design Services, Specialist Hair Colour Services and Specialist Styling Services to clients are not consistent with the job duties of a Junior Hairdresser. Consequently, I am not satisfied that the proposed 6 months training program will add to, or enhance, the nominee’s skills in this regard.[3]
[3] Court Book at 65
On 31st January 2008, the delegate refused the Applicant’s application for an Occupational Training Visa (Sub Class 442). In the Delegate’s Decision Record, the delegate made this finding:
I find that the applicant does not satisfy sub-criteria at Migration Regulation 442.222(1) of Schedule 2 of the Migration Regulations for the following reasons:
· The Commonwealth is not providing a nomination in respect of the occupational training.
· The Minister has not approved a nomination in respect of the occupational training.
As the applicant does not satisfy Migration Regulation 442.222(1), she does not satisfy the criteria at Migration Regulation 442.222 of Schedule 2 of the Migration Regulations. As the applicant does not satisfy Migration Regulation 442.222, she does not satisfy all the requirements for the grant of a visa subclass 442.[4]
[4] Court Book 71
On 26th February 2008, the Applicant applied to the Migration Review Tribunal for a review of the delegate’s decision.
Application to the Migration Review Tribunal
On 15th April 2008, the Tribunal wrote to the Applicant, care of her migration agent, Mark Tarrant, inviting her to comment on information that the Tribunal considered would, subject to any comments or response that she made, be the reason, or part of the reason, for affirming the decision under review. The information upon which the Tribunal sought comments or response was that:
a)The Applicant had been nominated in connection with her visa application by K.P. Archer and P.J. Martin (trading as Strobe Hair, Paddington); and
b)The nomination application was refused on 17th December 2007.
The letter told the Applicant:
This information is relevant to the review because the Tribunal is bound by the decision of the Federal Court of Australia (Kim v MIAC [2007] FCA 138 (9 March 2007) where Justice Lander found that the decision to refuse the nomination was not an MRT reviewable decision. This means that the Tribunal cannot review the decision to refuse the nomination. Without an approved nomination you cannot meet cl. 442.222 of the Migration Regulations 1994 and your application for a visa cannot succeed. This means that the Tribunal will agree with the Department’s decision to refuse to grant you a visa.[5]
[5] Court Book 82
The letter, in accordance with s.359A of the Migration Act, invited the Applicant to give comments or respond to the information in writing by 13th May 2008.
The Applicant’s migration agent replied to the Tribunal on her behalf on 13th May 2008. He submitted that the Tribunal’s reading of the decision in Kim v Minister for Immigration and Citizenship was incorrect. He further submitted that the decision agreed with the decision of Raphael FM in Lee v Minister for Immigration & Anor[6], although Lander J did not refer to Lee in his decision. He went to refer to the decision of Goldberg J in Tvarkovski v Minister for Immigration and Multicultural Affairs[7]. Mr Tarrant went on to submit:
What Justice Goldberg is saying in Tvarkovski is that despite the absence of review rights for the nomination application in that case pursuant to accepted principles of administrative law the Court can review the decision-maker’s findings in the nomination application via the appellant’s visa application.
As recorded above the MRT has been bound by the Tvarkovski decision and continues to be bound by Justice Goldberg’s decision.[8]
[6] [2007] FMCA 1822
[7] [2001] FCA 375
[8] Court Book 86
The Tribunal wrote to the Applicant on 19th May 2008 and invited her to attend a hearing to take place on 19th June 2008. An interpreter in the Turkish language was to be provided.
The Applicant’s migration agent forwarded a submission to the Tribunal dated 18th June 2008, to which he attached a number of documents relating to the Applicant’s claim. Mr Tarrant made this point:
However it is not clear from the Decision Record whether the delegate refused the Nomination as the Review Applicant’s skills as Junior Hairdresser were not sufficient for her to cope with the 6-month training program or that her skills were too advanced for the Review Applicant to benefit from the training program. All the Delegate stated was that the skills in proposed training plan were ‘not consistent with the job duties of a Junior Hairdresser.’
With respect, whichever way the Decision Record is read the Delegate’s decision is incorrect.[9]
[9] Court Book 94
Mr Tarrant submitted that the Applicant would gain additional or enhanced skills from the 6-month training program which she would be able to utilise in her employment as a hairdresser.
The Applicant attended the hearing on 19th June 2008 and gave evidence. Her employer, Mr Archer, also attended and gave evidence.
After the hearing, the Tribunal wrote to the Applicant on 26th June 2008, advising that the decision would be handed down on 4th July 2008. Mr Tarrant replied to the Tribunal on 30th June, drawing to the Tribunal’s attention the decision of Driver FM in Chae v Minister for Immigration & Anor[10], where his Honour said at [10]:
This case illustrates the difficulties which the present state of the law concerning this class of visa. An applicant is unable top qualify for this class of visa without there being a nomination in place. Once an application for nomination is refused, a visa applicant cannot succeed. Nevertheless, the critical issue of the refusal of the nomination cannot be reviewed by the Tribunal. The Tribunal is left in the peculiar position of attempting to assess the nomination issue without being strictly entitled to do so. That is an entirely unsatisfactory situation and ought to be addressed by the Minister’s Department.
[10] [2008] FMCA 829
Mr Tarrant submitted that as Driver FM had called for law reform of the Occupational Trainee visa review process to be fair to the Applicant the Tribunal should not hand down its decision until the Department of Immigration and Citizenship had responded to his Honour’s call to have the review law reformed.[11]
[11] Court Book 107
The Tribunal replied to Mr Tarrant’s letter on 2nd July 2008, advising that the Tribunal had considered the material but would still proceed to hand down its decision on 4th July.
The Tribunal handed down its decision on 4th July 2008, affirming the decision and finding that the Applicant was not entitled to the grant of an Educational (Temporary) (Class TH) visa.
The Migration Review Tribunal Decision
The Tribunal found that the delegate’s decision was an MRT-reviewable decision and that the Applicant had made a valid application for review under s.347 of the Migration Act.
The Tribunal found that the Applicant did not meet “key criteria” for a visa in any of the other subclasses. The Tribunal referred to the criterion under review, cl.442.222, which requires that 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 by the Minister, and said:
The nomination application lodged by the nominator was refused by the Department. Without an approved nomination the applicant cannot meet cl 442.222 and the application cannot succeed.[12]
[12] Court Book 116
The Tribunal expressed itself to be bound by the decision in Kim. It noted the request to defer its decision in light of the comments by Driver FM in Chae, but it considered it inappropriate to do so, because it was highly speculative that the Department would seek to change the legislation and if it were to do so the process would be lengthy.
The Tribunal went on to say:
Prior to the decision of Kim v MIAC [2007] FCA 138, it was considered that decisions to refuse nominations for occupational training were reviewable by the Tribunal (see Tvarkovsky[13] v Minister for Immigration and Multicultural Affairs (2001) FCA 375 (4 April 2001) and PMA 4/2001)). The Tribunal considers that the applicant has provided evidence indicating that she has ongoing occupational training, comprising her TAFE studies and workplace training. In such circumstances may have approved the nomination for occupational training and considers it unfortunate that it was refused by the delegate given that there was evidence provided to the Department establishing the applicant’s ongoing training. However, as previously stated, the Tribunal is unable to review the Department’s refusal of the nomination for workplace training made by Strobe Hair.[14]
[13] sic
[14] Court Book 116
The Tribunal found that the Applicant was not entitled to the grant of Subclass 415, 418 or 419 visas. The Tribunal found the Applicant not to be entitled to the grant of an Educational (Temporary) (Class TH) visa and, consequently, the application for review failed.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 31st July 2008. Apart from a Notice of change of address for service which she filed on 17th September 2008, the Applicant has not filed any further documentation.
The Applicant attended Court on 20th October and made an oral submission. She did not require an interpreter as she speaks fluent English. She told the Court that she did not believe that the Tribunal had reviewed the substance of her claims.
The solicitor for the Minister, Ms Griffin, submitted that the application for review of the Tribunal decision must fail. The decision in Tvarkovski concerned a review of a decision to refuse a subclass 805 visa. Goldberg J held that a nomination in support of a subclass 805 visa decision is MRT-reviewable under s.338(9) of the Migration Act. Regulation 4.02(4) (e) states that for the purpose of s.338(9) a decision under sub-regulation 5.19(1B) to reject an application for approval of a nominated position is an MRT-reviewable decision.
Ms Griffin also submitted that unlike Tvarkovski, Kim v Minister for Immigration and Citizenship concerned a nomination in support of a subclass 442 visa application. Lander J distinguished Tvarkovski on the basis that a nomination in support of a subclass 442 visa is not an MRT-reviewable decision, and, if it was, would only be reviewable at the instigation of the nominator and not the review Applicant.
Accordingly, it is submitted that the present case falls squarely within the parameters of the reasoning in Kim and so the Tribunal was bound to apply it.
It was also submitted that, notwithstanding the comments of Driver FM in Chae that there are difficulties with the present state of the law in relation to subclass 442 visas, his Honour ultimately followed the decision in Kim v Minister for Immigration and Citizenship.
Conclusions
The Applicant claims that the Tribunal wrongly decided that it did not have the power to review the decision to refuse the nomination, following Kim v Minister for Immigration and Citizenship. The Applicant claims that, despite the decision in Kim, the Tribunal was able to review the decision to refuse the nomination on the basis of the decision in Tvarkovski.
The decision in Tvarkovski is a decision of a single judge of the Federal Court at first instance, whilst the decision in Kim is a decision on appeal from the Federal Magistrates Court. Accordingly, provided it is on point, the decision in Kim is binding on the Federal Magistrates Court.
The decision in Kim is a decision on appeal from Driver FM (Kim & Anor v Minister for Immigration & Anor)[15], where his Honour dismissed an application for review of a decision of the Migration Review Tribunal in respect of a subclass 442 visa. It is clearly on point. In the notice of appeal, one of the grounds was that the Tribunal exceeded its jurisdiction by failing to review the nomination application.
[15] [2006] FMCA 1206
In his decision in Kim, Lander J said:
[22]A nomination under reg 1.20H relates to a nomination for approval of certain business activities of a business sponsor or party to a labour agreement. A nomination under subreg 5.19(1B) relates to a nomination for approval of an employment position of an employer and is not specific to a particular visa applicant.
[23]Those regulations do not govern the application for a nomination by Shark Australia. They do not require consideration of the criteria in Part 442, specifically subclause 442.223(a) and (b).
[24]In those circumstances, the decision to refuse Shark Australia’s nomination was not an MRT-reviewable decision as it was not prescribed under s.338(9).
[25]In the end, I do not think it matters whether it was a prescribed MRT-reviewable decision or not. If it was not as the first respondent contends and I have found, it was not reviewable by the Tribunal. If it was, in my opinion, for the reasons that follow, it was not reviewable by the Tribunal at the instigation of the applicant.
His Honour then went on to consider s.347(2) of the Migration Act and reg 4.02(5)(e) and found:
[28]It follows therefore that the only party who might have sought a review of the decision to refuse Shark Australia’s application for nomination was Shark Australia itself because only the business sponsor (reg 4.02(5) (c)) or the employer(reg 4.02(5)(d)) are prescribed persons for the purpose of s 347(2)(d) of the Act.
[29]It appears that Shark Australia has never sought a review. The decision of the delegate therefore to refuse Shark Australia’s nomination must stand.
Lander J then referred to the decision in Tvarkovski at [31]-[31] and held at [31] of his decision:
In this case, the decision to refuse Shark Australia’s nomination was not reviewable by the Tribunal for the two reasons which I have mentioned. First, it was not an MRT-reviewable decision. Secondly, if it was, it was only reviewable at the instigation of Shark Australia.
It was for these reasons that Lander J distinguished the decision in Tvarkovski. In the present case, I note that the Applicant’s employer, Strobe Australia, did not seek a review of the decision to refuse the nomination. In any event, I am of the view that, following Kim, it was not open to Strobe Australia to seek a review of that decision.
I am satisfied that Kim v Minister for Immigration and Citizenship is on point and, being an appeal from the Federal Magistrates Court, is binding on the Federal Magistrates Court. It follows that the Migration Review Tribunal did not fall into jurisdictional error and the decision is a privative clause as defined by s.474(2). Privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari or mandamus.
The application will be dismissed.
One matter that is worth consideration is that Driver FM made reference to the unsatisfactory state of the law in Chae v Minister for Immigration & Anor[16] at [10]:
This case illustrates the difficulties which the present state of the law concerning this class of visa has created. An applicant is unable to qualify for this class of visa without there being a nomination in place. Once an application for nomination is refused, a visa applicant cannot succeed. Nevertheless, the critical issue of the refusal of the nomination cannot be reviewed by the Tribunal. The Tribunal is left in the peculiar position of attempting to assess the nomination issue without being strictly entitled to do so. That is an entirely unsatisfactory situation and ought to be addressed by the Minister’s Department.
[16] [2008] FMCA 829
His Honour went on to say in a footnote:
It effectively renders the entire review process an empty gesture. Moreover, there is a question (which was not addressed in this case) whether regulation 442.222(1) is valid because it imposes a visa criterion on an applicant that an applicant could never comply with. The criterion can only be met by someone else and the decision whether it has been met is made without reference to a visa applicant and without any right of review: cf Dai v Minister for Immigration [2007] FCAFC 199.[17]
[17] Chae at footnote 3
With respect, I agree with his Honour’s views.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 3 November 2008
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