Wang v Minister for Immigration - [2004] FMCA 356

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION

[2004] FMCA 356

MIGRATION – Application for review of Migration Review Tribunal decision – temporary business entry visa refused because employer not approved as business sponsor – Tribunal refused to delay decision pending Departmental assessment of fresh sponsorship application – whether Tribunal ignored relevant material – whether unreasonable decision – whether lack of procedural fairness.

Applicant:

TONG QING WANG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1397 of 2003

Delivered on:

21 April 2004

Delivered at:

Sydney

Hearing date:

21 April 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application is dismissed.
That the applicant pay the respondent's costs set in the amount of $3,500

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1397 of 2003

TONG QING WANG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) made on 7 May 2003 affirming a decision of a delegate of the respondent, finding that the visa applicant and his wife and child were not entitled to the grant of Temporary Business Entry (Class UC) visas. The applicant had applied for a Temporary Business Entry visa on 5 October 2001 shortly before the expiration of an earlier Temporary Business Entry visa. His wife and child were included in the application. The delegate's decision to refuse to grant the visas was made on 29 November 2001 and the applicants sought review by the Tribunal on 18 December 2001. The Tribunal decision was made on 7 May 2003. The applicant sought review of the Tribunal decision in the Federal Court on 30 May 2003. The matter was transferred to this Court. The applicant’s wife and child are not parties to this application.
The background to the application is that the applicant sought the visa in order to undertake in Australia the activity of general manager of a business which was owned by him. He proposed to be sponsored by the business, Xin Cheng (Aust) Pty Ltd. The delegate of the respondent refused to grant the visa on the basis that a decision had been made to refuse the application by Xin Cheng (Aust) Pty Ltd for approval as a business sponsor. Hence the applicant had not been nominated by an employer who was an approved business sponsor. The business sought review by the Tribunal of the decision not to approve it as a sponsor. The visa applicant also sought review of the decision to refuse his visa application. It is the review of the decision in relation to the visa applicant that is before the Court.
The applicant sought to meet the applicable criteria in clause 457.223 of Schedule 2 to the Migration Regulations on the basis that he was sponsored by a standard business sponsor, approved under regulation 1.20D of the Migration Regulations (Subclause 457.223(4)). No claims were made in respect of the other grounds under clause 457.223.
On 19 February 2003 the Tribunal affirmed the decision not to approve Xin Cheng (Aust) Pty Ltd as a business sponsor. On 20 February 2003 the Tribunal wrote to the applicant under section 359A of the Migration Act 1958 with particulars of information that it considered would be the reason, or part of the reason, for affirming the decision that he was not entitled to the visa. That information was that the Department had refused the sponsorship and that the Tribunal had affirmed that decision, finding that the Xin Cheng (Aust) Pty Ltd did not meet the criteria for approval as a standard business sponsor. The information was relevant because without an approved sponsor the applicant could not be granted a Subclass 457 visa.
The applicant’s migration agent responded in a letter which referred to the applicant’s six years in Australia and his attempts to conduct business and to contribute to society but did not address the absence of an approved business sponsor. On 14 March 2003 the Tribunal invited the applicant to a hearing on 15 April 2003, which he attended.
The Tribunal found that the proposed employer had not been approved as a business sponsor. The applicant did not meet the alternative grounds. Hence the visa applicant did not meet the criteria for a Subclass 457 visa. Nor did he meet the criteria for a Sublcass 456 visa. The Tribunal affirmed the decision under review.
The Tribunal also stated that it had considered whether to delay the review so that the Department could assess a new sponsorship application by a business named Jin Xua International Trading Pty Ltd which was part-owned by the applicant. In the hearing the applicant had provided evidence of such business and of the sponsorship approval application. The Tribunal had regard to the fact that it was required by section 353 of the Migration Act to be quick, that the applicant had been in Australia for some years, that his application had been refused in November 2001 and that the visa applied for provided only for temporary residence in Australia. It stated that after considering the available evidence it had decided not to further delay the review.
In his application for review the applicant claimed that in making the finding that he failed to satisfy the basic requirements for the visa the Tribunal had ignored parts of his claims in the statement attached to his application for the visa and that in doing so the Tribunal had ignored relevant material, reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation and that this constituted jurisdictional error. No particulars of the claim were provided. The applicant did not file written submissions but addressed a number of matters in oral submissions before the Court today.
The applicant indicated that he had a considerable amount of material and that the Tribunal had not considered it all fully. However the Tribunal properly considered the applicable criteria and found that the absence of an approved business sponsor was in itself fatal to the applicant's visa application. In such circumstances there was no need for it to consider at any length other aspects of the applicant's claims. The Tribunal understanding of the relevance of applicable criteria was correct. It did not err by approaching the applicant's case in the way that it did. It cannot be said that it reached a decision that could not reasonably have been reached or reached a decision without rational or reasonable foundation.
The applicant also claimed that the Tribunal used a standard form decision, that this was unfair and that the Tribunal had not properly decided the matter. He recounted some of his personal circumstances to the court. The criticism of the Tribunal for publishing its reasons in a template form that is similar to other decisions does not of itself establish any jurisdictional error. The use of a decision template and the similarity of cases in which the defect in the application is the absence of an approved business sponsor may lead to very similar form decisions. However I am not satisfied that the use of a template has in any way blinded the Tribunal to the relevant issues in this instance or that it establishes prejudgment or an appearance of bias. The Tribunal properly outlined and considered the relevant circumstances of the applicant, albeit not in the detail that the applicant would have wished. In particular it properly had regard to the circumstances in relation to sponsorship. The lack of an appropriate sponsorship was fatal to the application. This was recognised by the Tribunal. There is nothing in the form of the reasons for decision that leads to any conclusion that there was actual or apprehended bias, a lack of fairness or other jurisdictional error.
As was pointed out by counsel for the respondent, the Tribunal was under an obligation to apply the Migration Regulations and if the applicant did not meet the relevant criteria (in this case that he had an approved business sponsor) then no matter how meritorious his circumstances might otherwise be, his application to the Tribunal could not succeed. Hence it was not necessary for the Tribunal to engage in a detailed consideration of other aspects of the applicant's circumstances.
The applicant also took issue today with the manner in which the hearing was conducted by the Tribunal. In particular he asserted that the interpreter used by the Tribunal was some 20 minutes late, that as a result he was nervous, that the Tribunal member appeared frustrated and unhappy and that the hearing and the decision were rushed. He indicated that he felt that he had not always fully stated what he wanted to state and that some issues were not dealt with at length. He felt the decision-maker was against him and rushed.
The hearing was conducted on 15 April 2003. The decision was made on 7 May 2003. There is nothing in the material before me to suggest any inappropriate or undue haste in the decision-making process by the Tribunal. The only evidence of what occurred in the hearing on 15 April 2003 is the Tribunal reasons for decision. Even accepting what the applicant says in relation to the late arrival of the interpreter making him nervous and that he had a perception that the member appeared to be frustrated and unhappy and that the hearing was short, this does not establish that the applicant did not have a reasonable opportunity to present his case and address critical issues, bearing in mind that the critical issue in this case was the absence of an approved business sponsor. There is no evidence before the Court as to the conduct of the hearing.
Furthermore, the complaints that the applicant makes, if established, could not have affected the outcome of the case which turned on the objective issue of whether he had an approved business sponsor. The claims are not established on the evidence before me and there is nothing to be served by further consideration of the conduct of the Tribunal hearing in the circumstances that are put before the Court by the applicant. The complaints about the lateness of the interpreter and the demeanour or presentation of the Tribunal member are not such as to establish a lack of procedural fairness. There is no suggestion that the applicant sought an adjournment on the basis of his ‘nervousness’.
The applicant also complains about the Tribunal decision to proceed to make a decision rather than to delay it. The Tribunal explained that it had considered whether to delay the review in order for the Department to assess the application for approval of a new sponsorship by a different business. It gave reasons for its decision not to delay the review which are unexceptionable. In the circumstances of this particular case, I am not persuaded that any jurisdictional error is apparent in the manner in which the Tribunal made that decision or in its failure to delay the decision until resolution of a fresh sponsorship application. The Tribunal had brought to the applicant's attention on 20 February 2003 the difficulty caused by the absence of a standard business sponsor. The response to that letter in no way indicated that the applicant would be seeking a delay for approval of a further sponsor.
It appears from the material before the court that the issue was first raised by the applicant at the Tribunal hearing. The Tribunal obligation is to decide a case on the basis of the circumstances before it. While in some circumstances procedural fairness would require that the Tribunal should delay making a decision until it received further information, I am not persuaded that this is such a case.
Whether or not to delay making a decision is a matter ordinarily within the discretion of the Tribunal. I consider that the Tribunal properly met its obligations by considering whether to delay the review having regard to the relevant circumstances and making a decision based on such circumstances as outlined above. It has not been suggested nor is it apparent that the Tribunal failed to consider the request or to take into account relevant matters not referred to in the decision. It has not been established that there was an unreasonable refusal to delay making a decision or a denial of procedural fairness.
The applicant complained generally of the attempts that he had made to establish himself in the community in Australia and to establish businesses in Australia. It is not for the court to review either the merits of the Tribunal decision or to enter into a consideration of the broader humanitarian issues which the applicant raises. The contribution that the applicant may have made to the Australian community and his attempts to establish himself in business in Australia do not establish that the Tribunal erred in making the decision that it made that he was not entitled to the grant of a temporary business entry visa because he did not have an approved business sponsor.
No jurisdictional error is established in this case either on the basis contended in the applicant's application, in his oral submissions or in any other way. Accordingly, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and it is appropriate that as an unsuccessful applicant he should meet the respondent's costs. Bearing in mind the nature of this and other similar matters, I consider that the sum of $3,500 is appropriate.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 9 June 2004