Van Hung Ong v Minister for Immigration and Citizenship
[2011] HCASL 137
VAN HUNG ONG
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2011] HCASL 137
M167/2010
On 1 May 2009, the applicant applied for approval as a Standard Business Sponsor in relation to a subclass 457 visa. A delegate of the first respondent refused the application on 14 July 2009 on the basis that the applicant did not satisfy a requirement contained in former reg 1.20D(2)(c)(ii) of the Migration Regulations 1994 (Cth) ("Migration Regulations").
On 19 February 2010, the Migration Review Tribunal ("the Tribunal") dismissed an application by the applicant for review of the delegate's decision. The Tribunal found that it lacked jurisdiction to review the delegate's decision because the application for review was invalid, the application fee prescribed by reg 4.13(1) of the Migration Regulations pursuant to s 347(1)(c) of the Migration Act 1958 (Cth) ("Migration Act") having not been paid. On 11 August 2009, the applicant had requested that the prescribed fee be waived pursuant to reg 4.13(4) of the Migration Regulations on the ground that payment of the fee would be likely to cause the applicant severe financial hardship ("the fee waiver request"). Correspondence between the Tribunal and the applicant relating to the fee waiver request ensued. On 7 January 2010, an authorised officer of the Tribunal wrote to the applicant advising that, having considered the evidence provided by the applicant in support of the fee waiver request, the request was refused. The letter noted that the applicant had travelled outside Australia on five separate occasions in the past financial year, implying that he had access to undeclared funds, and requested that the fee be paid within 14 days. No payment was received.
On 2 August 2010, the Federal Magistrates Court (Riethmuller FM) dismissed the applicant's application for review of the Tribunal's decision. Riethmuller FM found that the applicant could not establish a ground of judicial review, the applicant having had the opportunity to be heard and the Tribunal officer having considered the facts and circumstances before refusing the application. Riethmuller FM also doubted that the Federal Magistrates Court had jurisdiction to review the decision, being a primary decision within the meaning of the Migration Act.
On 17 November 2010, the Federal Court of Australia (Marshall J) dismissed the applicant's appeal. His Honour held that the fee waiver application having been refused and the applicant having failed to pay the fee, there was no proper application for the Tribunal to consider.
On 29 April 2011, Hayne J made an order reinstating this application for special leave to appeal and reserving the question of costs. The application does not advance any questions of law that would justify the grant of special leave to appeal and enjoys no prospects of success. There is no reason to doubt the correctness of the decisions below.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.
W.M.C. Gummow S.M. Kiefel 8 September 2011
0
0