Xavier Fernandez v Minister for Immigration

[2005] FMCA 960

FEDERAL MAGISTRATES COURT OF AUSTRALIA

XAVIER FERNANDEZ & ORS v MINISTER FOR IMMIGRATION [2005] FMCA 960

MIGRATION – MRT decision – application for temporary business visa – sponsoring business not approved – applicant changed employer – Tribunal dispensed with hearing when no response to invitation to comment – no error found.

Migration Act 1958 (Cth), ss.359A, 359B(2), 359C(2), 359C(2)(b), 359C(5), 360, 360(2)(c), 360(3), 360A, 379G, 379B(4), 379C(5), 379G(2), 483A, Part 8

Applicant: XAVIER FERNANDEZ & ORS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 784 of 2005

Judgment of: Smith FM

Hearing date: 27 June 2005

Delivered at: Sydney

Delivered on: 27 June 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Mr B Cramer

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs in sum of $2000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 784 of 2005

XAVIER FERNANDEZ & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Migration Review Tribunal handed down on 11 March 2005. The Tribunal affirmed a decision of a delegate to refuse the first named applicant and the other applicants temporary business entry (class UC) visas. The other applicants are his dependent wife and two children. Because they had no separate basis for eligibility, I shall refer from hereon to the first named applicant as "the applicant".

2. The applicant and his family entered Australia in January 2004 on a visitor's visa and soon thereafter applied for a subclass 457 visa.  This is available only where a person is sponsored by an Australian or overseas business in relation to particular proposed employment.  The sponsoring employer itself requires approval from the Minister under Div 1.4A of the Migration Regulations, and reg 1.20D in particular.

3. Of particular relevance to satisfaction of the subclass visa sought by the applicant, is item 457.223(4)(b) in Sch 2 of the Migration Regulations. It provides as a criterion to be satisfied at the time of decision by a delegate, or on appeal at the time of the Tribunal’s decision, that:

   The employer is:

   (i) either:

   A)   a pre-qualified business sponsor or;

   B)   a standard business sponsor approved under reg 1.20D as enforced before, on or after 1 July 2003; and

   (ii) the employer mentioned in subparagraph 1223A(3)(d)(i). 

4. The reference to a subparagraph of 1223A, is to that subparagraph in item 1223A of Sch 1, which sets out the general requirements of an application for a class UC temporary business entry visa.  In particular, subparagraph 1223A(3)(d)(i) requires a visa application to:

   Specify the employer by whom the applicant proposes to be employed for subclause 457.223(4).

5. In short, the Tribunal in the present case was obliged to be satisfied at the time of decision that an employer proposed for the applicant was either a pre-qualified business sponsor or a standard business sponsor with an approval covering this proposed employment, and also that such an approved sponsor was the same employer as was identified on the original visa application form.

6. The present applicant's visa application form was lodged on his behalf by a migration agent employed at a firm of lawyers, and indicated a desire to qualify as a person sponsored by an Australia or overseas business.  The identified sponsoring employer had the business name, “The Dish Café, Restaurant Bar” in George Street, Sydney.  It was not a “pre-qualified business sponsor” but was required to obtain

   
   

   special sponsorship approval covering this proposed employment.  Accordingly, the forms requesting that approval were lodged at the same time as the present visa application.

7. When refusing the visa application on 16 March 2004, the delegate indicated the reason for the refusal as follows:

   In answer to question 19 on the prescribed application form, 1066, the applicant stated that he was applying as a person sponsored by an Australian business.  The visa application was accompanied by an application for approval as a business sponsor by a business operating in Australia.  A decision has been made to refuse the application for approval as a business sponsor.  The sponsoring business has not been approved as a business sponsor.

8. The delegate therefore found that the applicant was unable to satisfy the criteria in 475.223(4) which I have referred to above and which the applicant had hoped to meet.

9. Applications for review of the decision concerning the applicant and also of the decision refusing sponsorship approval were lodged by the applicant's lawyer.  Although relevant documents concerning the employer's appeal are not in evidence before me, reference is made to that proceeding in the material before me. 

10. In Section 4 of his application for review, the applicant provided details of the lawyer’s name and address, and indicated that he wished the Tribunal to send all documents to the address of the lawyer as the applicant's authorised recipient pursuant to s.379G of the Migration Act. The address details included a facsimile number.

11. On 25 October 2004 the Tribunal faxed an invitation to comment to the applicant's lawyer, inviting him to comment on the fact that the nominated employer did not currently have approval as a business sponsor, but had a current application for review before the Tribunal which the Tribunal proposed be dealt with together with the applicant’s appeal.  

12. Apparently in response, the Tribunal received a facsimile from Cronulla Catering Company Pty Ltd on 7 January 2005 stating:

    Cronulla Catering Co Pty Ltd is the new employer of visa applicant Xavier Fernandez, MRT file no. N04/01901604.  I am in the process of putting together all the requested documentation, however I will require an extension of 14 days to finish this process and forward these comments to your office.  I hope that this request will be granted.

13. I am satisfied on the evidence before me that on 11 January 2005 the Tribunal sent by facsimile to the applicant's solicitor a further s.359A invitation to comment. The invitation asked the applicant to comment on the fact that the Cronulla Catering Company had advised that it was now the applicant's employer, and to comment on the information:

    Cronulla Catering Company Pty Ltd is not the review applicant and cannot take over the review application lodged by the Dish Café, Restaurant Bar.

    It appears that you no longer propose to work for the Dish Café, Restaurant Bar.  You are therefore unable to satisfy clause 457.223(4)(b) which in effects requires that your sponsoring employer must be the same employer specified at the time of application.  This is relevant because without an approved sponsorship by the Dish Café, Restaurant Bar you cannot satisfy all criteria for the visa.

14. The applicant has not challenged that this invitation came to his attention, and has not sought to establish that any response was sent by him or his agent to the Tribunal.

15. There is in evidence a Tribunal file note dated 10 February which notes:

    The review applicant has failed to provide a s 359A response in the above case.  The last day in which to respond within the prescribed time was 8 February 2005.

16. I am satisfied that the opinion expressed in that file note was correct. That is, that there was a failure to respond within the time required under ss.359B(2) and 359C(2)(b). These provisions must be read in the light of the regulations deeming receipt of the facsimile on the date of transmission and then allowing 28 days for comments to be made (see ss.379B(4) and 379C(5) and reg 4.17(4)). Under s.379G(2), a document given to an authorised recipient is deemed to have been given to the applicant. I accept the submission by the minister's representative that, as a result of the failure of the applicant to respond to the invitation, the Tribunal had the discretion under s.359C(2) to:

    make a decision on the review without taking any further action to obtain the applicant's views on the information.

17. It follows that, if the Tribunal properly exercised that discretion, then the Tribunal's obligation to invite the applicant to a hearing did not arise and the applicant was not entitled to appear at a hearing (see ss.360(2)(c) and 360(3)).

18. Although the Tribunal has not provided any reasons for its exercise of the discretion to proceed without inviting the applicant to a hearing, there are some obvious reasons why it should think that it was appropriate to exercise this discretion.  In particular, since the contention it had raised in the invitation may have appeared unanswerable, particularly where an applicant represented by a lawyer had not responded to the invitation to comment.  Whatever the reason, the Tribunal was not obliged to give reasons for its procedural discretion to dispense with a hearing, and I am not satisfied that any jurisdictional error occurred so as to affect the Tribunal's substantive decision.

19. In the course of today’s hearing, I have carefully taken the applicant through the provisions I have referred to above, and he has not been able to identify an argument which would show jurisdictional error arising from the Tribunal’s failure to invite him to a hearing. I do not intend criticism of him in saying this, since this aspect of the case involves a technical application of complex regulations. However, the applicant's application and amended application in this Court have sought to rely on grounds that the Tribunal was in breach of its obligations under ss.360 and 360A by failing to invite the applicant to a hearing. As I have indicated, I consider that the Tribunal was entitled not to do that and that no jurisdictional error has been shown to have resulted.

20. The applicant in his application to the Court and oral submissions has not attempted to contend that the Tribunal’s substantive reasoning was not open to it, nor that the Tribunal made any other error, jurisdictional or otherwise, in relation to is substantive grounds for affirming the delegate's decision. 

21. Its short reason was stated as follows:

    8. The visa applicant no longer proposes to work for the Dish Café, Restaurant Bar. The visa applicant seeks to work for Cronulla Catering Company Pty Ltd and there is no evidence before the Tribunal that this business is an approved business sponsor.  Regardless, the visa applicant would not satisfy clause 457.223(4)(b)(ii) which in effect requires that the visa applicant's sponsoring employer must be the same employer specified at the time of application. 

    9. The Tribunal finds that the visa applicants do not meet criteria for subclass 456 visas, or criteria for subclass 457 visas.  The Tribunal must therefore affirm the decision under review.

22. Earlier in its reasons, the Tribunal noted that the application for review made by the Dish Café, Restaurant Bar had been reviewed separately by the Tribunal and affirmed on 9 February 2005. 

23. I consider that the Tribunal's substantive decision was open to it on the evidence before it, and reflected a proper appreciation of the law. I can find no jurisdictional error made by it affecting its decision.

24. For the above reasons I consider that the present application must be dismissed

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  13 July 2005