Wilson v Minister for Immigration - [2007] FMCA 104

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILSON v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 104

MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether Migration Review Tribunal complied with statutory regime in s.359A of the Migration Act 1958 (Cth) for requesting additional information.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.357A; 359; 359(2); 359B; 359C; 359C(1); 474; pt.5 div.5; pt.8 div.2
Migration Regulations 1994 (Cth), reg.1.20D; 457.223; 457.223(4)
Federal Magistrates Court Rules 2001, r.13.03A(c)

Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61

First Applicant:

JOHN WILSON

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG3791 of 2005

Judgment of:

Emmett FM

Hearing date:

30 January 2007

Date of last submission:

30 January 2007

Delivered at:

Sydney

Delivered on:

8 February 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Ms A. Nanson, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3791 of 2005

JOHN WILSON

First Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 25 November 2005 and handed down on

25 November 2005.
The applicant was born on 2 June 1965 and is from Canada (“the Applicant”).
On 12 November 2004, Namakas Pty Limited (“Namakas”) applied for approval as a business sponsor of the Applicant with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
On 16 November 2004, the Applicant lodged an application for a Temporary Business Entry (Class UC) visa with the Department under the Act.
On 20 December 2004, a delegate of the First Respondent (“the Delegate”) refused Namakas’ application for approval as a business sponsor because Namakas did not satisfy a mandatory criteria in regulation 1.20D of the Migration Regulations 1994 (Cth), in that Namakas failed to provide evidence of their business operations or genuine intention to engage in business and did not provide relevant undertakings.
On 20 December 2004, the Delegate refused the Applicant’s application for a Temporary Business Entry (Class UC) visa on the basis that the Applicant did not meet the requirements of regulation 457.223 of the Migration Regulations 1994 (Cth). Regulation 457.223(4) requires that the Applicant be nominated by an employer who is an approved business sponsor.
Thus, the Delegate found that the Applicant did not have an approved business sponsor because the Delegate had not approved Namakas as a business sponsor and therefore the Applicant’s visa application was refused.
On 4 January 2005, the Applicant and Namakas separately lodged applications for review of the Delegate’s decisions by the Tribunal.
On 25 November 2005, the Tribunal affirmed the decision of the Delegate not to grant a Temporary Business Entry (Class UC) visa to the Applicant. On 25 November 2005, in a separate decision, the Tribunal affirmed the Delegate’s decision to refuse Namakas’ application for approval as a business sponsor.
On 21 December 2005, the Applicant and Namakas filed separate applications in this Court seeking judicial review of the Tribunal’s decisions.

The proceeding before this Court

The Applicant was unrepresented before this Court.
The Applicant filed an application on 21 December 2005 seeking judicial review of the Tribunal decision dated 25 November 2005. The grounds of the application are in the following terms:
“1. The Tribunal denied the Applicant procedural fairness.
Particulars
a. The Applicant was sponsored by Namakas Pty Ltd for a temporary business visa.
b. The Applicant’s visa was not granted because the sponsorship by Namakas Pty Ltd was not approved.
c. In reviewing the decision on Namakas Pty Ltd’s sponsorship, the Tribunal denied it procedural fairness.
d. The Tribunal affirmed the decision to refuse the Applicant’s visa because it affirmed the decision to refuse the sponsorship of Namakas Pty Ltd.
e. As Namakas Pty Ltd was denied procedural fairness, the Applicant was also denied procedural fairness.”
Namakas also filed an application for judicial review on 21 December 2005 in similar terms. Both applications were set down for hearing together. However, at the hearing of both applications before this Court, there was no appearance by Namakas. Accordingly, that proceeding was dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001 due to the non-appearance of Namakas.
The Applicant’s application is dependent upon the Applicant satisfying this Court that Namakas had been denied procedural fairness by the Tribunal in the conduct of its review of the Delegate’s decision not to approve Namakas as the Applicant’s sponsor.
On the form of the application lodged by Namakas to sponsor the Applicant, it was made clear that there were certain undertakings required to be provided by any sponsor.
On 10 August 2005, the Tribunal wrote to Namakas inviting Namakas to provide additional information to the Tribunal pursuant to an enclosed checklist. The invitation was purported to be sent by the Tribunal pursuant to s.359(2) of the Act.
The First Respondent correctly submitted that s.357A of the Act provided an exhaustive statement of the rules of natural justice in respect of the requirements of pt.5 div.5 of the Act and that, unless the Applicant could demonstrate a breach of the statutory requirements of the review process, there was no further scope within the legislation for a denial of procedural fairness (Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61 at [66]).
Section 359(2) of the Act provided an opportunity to the Tribunal to request further information. If such a request is sent in accordance with the statutory regime prescribed in s.359B of the Act, then, if no further information is provided within the time specified under the Act, then s.359C of the Act provides that the Tribunal can proceed to make its decision without taking any further opportunity to enable Namakas to provide such information.
On 12 August 2005, the Tribunal wrote to Namakas inviting Namakas to appear before it to give evidence and present arguments in support of its application. The hearing date was set for the 21 September 2005.
Following the hearing, the Tribunal wrote again to Namakas, on 27 September 2005, requesting Namakas to provide identified additional information. The letter informed Namakas that the invitation was sent pursuant to s.359(2) of Act and that, if the Tribunal did not receive any additional information within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain information. The letter informed Namakas that the information must be provided within 28 calendar days of the date of notification of the invitation and that the date of notification of the invitation was taken to be 7 working days after the date of this letter. The First Respondent agreed that the date upon which the information was required to have been furnished was no later than 4 November 2005.
On 2 November 2005, Namakas wrote to the Tribunal seeking an extension of time to provide the additional information and erroneously identified the due date as 3 November 2005.
On 4 November 2005, the Tribunal wrote to Namakas refusing the extension of time and again informing Namakas that, if the Tribunal did not receive any additional information within the period allowed or as extended, it may make a decision on the review about taking any further action to obtain the information.
On 9 November 2005, the Tribunal wrote to Namakas inviting it to attend the handing down of its decision.
The Tribunal’s decision stated that there was insufficient information provided to it to enable it to be satisfied of the relevant criteria required for approval for sponsorship. That was a finding open to the Tribunal on the material before it and for which it provided reasons.
Whilst the Tribunal incorrectly noted in its decision that the due date for the response to its letter of 27 September 2005 was 3 November 2005, the Tribunal did not in fact make its decision until 25 November 2005.
In fact, as stated above, the statutory time for response by Namakas expired on 4 November 2005. However, because the Tribunal did not proceed to make its decision until after that date, it is not relevant that the Tribunal decision stated the wrong date.
Relevantly, s.359C(1) of the Act makes it clear that, as long as the Tribunal complies with the statutory requirements of s.359 of the Act in requesting additional information, it can proceed with its decision without giving the applicant any further opportunity to respond, if the information is not provided within the prescribed time. The Tribunal’s letter, dated 27 September 2005, made clear the prescribed period and the consequences that may flow if the information was not received and no extension was made to that period.
The Tribunal, in the proceeding before this Court complied with the statutory regime prescribed by s.359 of the Act, in that the invitation was sent to the Applicant at his last known address for service and otherwise was given in accordance with s.359B of the Act. In those circumstances, there was no duty on the Tribunal to have to consider any extension of time and it was not obliged to grant one.
In the circumstances, there was no error in the Tribunal’s decision to proceed with its review and make its decision without taking any further steps to allow the Applicant to provide any further information or to accede to its request for an extension.
It should be noted that Namakas wrote to the Tribunal on 9 November 2005 informing it that, on 4 November 2005, there had been a break-in in its accountant’s office as a result of which its financial records had been destroyed. However, the Tribunal, by letter dated 4 November 2005, had already refused Namakas’ request for an extension.
There was no error in the Tribunal’s decision to affirm the decision under review not to approve Namakas as a sponsor.
As stated above, a required criteria for the Applicant’s application for the visa, lodged by him on 16 November 2004, was that he had an approved sponsor. The Applicant did not have an approved sponsor. In the circumstances, the Tribunal was bound to affirm the decision under review.
Accordingly, the Tribunal’s decision dated 25 November 2005 affirming the Delegate’s decision to refuse the Applicant’s visa on the basis that he did not have an approved business sponsor is not affected by jurisdictional error.
Accordingly, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The Applicant’s proceeding in this Court commenced by application filed on 21 December 2005 is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 31 January 2007