Zapata v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 367

FEDERAL COURT OF AUSTRALIA

Zapata v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 367

CYNTHIA OCAMPO ZAPATA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V480 of 2002

WEINBERG J
28 APRIL 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V480 OF 2002

BETWEEN:	CYNTHIA OCAMPO ZAPATA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	28 APRIL 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V480 OF 2002

BETWEEN:	CYNTHIA OCAMPO ZAPATA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WEINBERG J
DATE:	28 APRIL 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Background

1. This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”) given on 27 June 2002.  By that decision the Tribunal affirmed a decision by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs that the applicant was not entitled to the grant of an Educational (Temporary) (Class TH) visa.

2. The application for an order of review was filed in this Court on 25 July 2002.  The applicant was, and has been throughout, unrepresented, and it is therefore not surprising that the grounds in support of the application, to the extent that they may be so characterised, disclose no conceivable basis upon which jurisdictional error could be discerned.

   Factual background

3. The applicant is a national of the Philippines.  She first entered Australia on 9 August 1997 on a Temporary Business Entry (Class UC) visa, subclass 456 (Business (Short Stay)) valid until 9 September 1997.  She returned to the Philippines on 24 August 1997. 

4. On 16 February 1998 the applicant entered Australia on a further subclass 456 visa valid until 16 May 1998.  On 3 June 1998 she was granted an Educational (Temporary) (Class TH) visa, subclass 442 (Occupational Trainee) valid until 2 March 1999.  She has not held a substantive visa since that date.

5. The visa application presently under review was lodged on 1 March 1999 on the basis that the applicant had been nominated for occupational training in immigration matters by Silver Partners Pty Ltd, trading as Academic and Commerce Immigration Referral Centre (“the nominator”).  The nominator proposed that the applicant be given training for nine to twelve months to enable her to gain adequate expertise in immigration matters so that she could manage an Australian based migration agent’s operation in the Philippines.  However, the nominator withdrew its support prior to a decision by the delegate, on 13 May 1999, to refuse the applicant the visa sought.  An application for review of that decision by the Tribunal was lodged on 10 June 1999.

6. At the request of the applicant, the Tribunal deferred making a decision in relation to the review in order to allow her an opportunity to have a new nomination assessed by the then Department of Immigration and Multicultural Affairs (“the Department”).  On 15 March 2000, R Luong Immigration Services (“the second nominator”) came forward with a proposal that the applicant be trained to enable her to operate a branch in the Philippines on behalf of the second nominator.  On 13 October 2000, that application was refused by the Department.  The Tribunal affirmed that decision on 13 March 2001.  However, on 13 April 2001, this Court ordered, by consent, that the decision be set aside, and that the matter be remitted to the Tribunal to be reconsidered.

7. The rehearing of the application by the Tribunal finally took place on 18 March 2002.  By that date the second nominator was no longer a registered migration agent, and therefore not in a position to support the applicant.  She told the Tribunal that she had been trying, unsuccessfully, for 15 months to find a third nominator, and requested the indulgence of a further period to enable her to find someone prepared to act in that capacity.  She mentioned Mr Luong’s brother, who was a registered migration agent, as well as several other possible sources.  The Tribunal granted the applicant an adjournment for a period of two weeks, stating that it required written confirmation from any proposed new nominator that he or she could meet all the relevant requirements, under the Migration Regulations, including the provision of a training program, and the payment of appropriate wages.  However, no further submission or nomination was received.

   The Tribunal’s decision

8. The Tribunal noted that at the time the application for the relevant visa had been lodged, there were provisions in the Migration Regulations which set out the criteria to be met at the time of decision.

   “442.222        (1)       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 and has been approved by the Minister.

   (2)      The reference in subclause (1) to occupational training to be provided by the Commonwealth includes occupational training to be provided by:

   (a)a body corporate incorporated for a public purpose by an Act or regulations made under an Act; or

   (b)an authority or body, not being a body corporate, established for a public purpose by, or under, an Act or regulations made under an Act.”

9. The Tribunal observed that the applicant was not applying in relation to occupational training provided by the Commonwealth.  Therefore, a nomination had to be approved before the visa could be granted.

10. The Tribunal then observed that the nomination was to be assessed using the relevant visa criteria.  It referred to cl 442.223 which also contained criteria to be met at the time of decision.

    “442.223        The Minister is satisfied:

    (a)that the occupational training that is proposed will give the applicant additional or enhanced skills that the applicant will be able to utilise in the applicant’s employment after leaving Australia; and

    (b)that occupational opportunities available to Australian citizens or permanent residents of Australia will not be adversely affected if the visa is granted.”

11. The Tribunal continued:

    “As can be seen above, 442.223(a) requires that the proposed occupational training will give the visa applicant additional or enhanced skills that she will be able to utilise in her employment after leaving Australia.  On 27 April 2000 the second nominator wrote that:

    Since I have the intention of setting [up] a branch office in Manila I would like Cyndy Zapata to utilised [sic] her skills to be able to deal accurately and effectively with the applicants in overseas and in Australia.

    Cyndy Zapata has 15 years of experience in administrative work in the Philippines and she has a broad knowledge of the local market but her administrative work experience was not relevant to her current of [sic] study and practice.

    On 24 August 2000 the second nominator stated that:

    In the year 2003 we are planning to set up an office in the Philippines to be managed by Cynthia Zapata who will be responsible in orientating new staff in the nature of the immigration work under the supervision of the registered migration agent/s.

    Following the remittal from the Federal Court in August 2001, the Tribunal proactively sought further information from the second nominator to enable it to review that nomination.  As indicated earlier, the Tribunal sought details of training plans, the enhanced or additional skills the visa applicant would obtain and the nominator’s ability to pay the visa applicant.  Nothing has been received from the nominator and the visa applicant has told the Tribunal in oral evidence that Mr Luong is not in a position to continue with the nomination.  She told the Tribunal that he was no longer a registered migration agent which was verified by a check of records on the website maintained by the Migration Agents’ Registration Authority.  The visa applicant sought and was given an adjournment to enable her to obtain a further nomination but no further nomination has been submitted to the Tribunal for its consideration.

    Clause 442.222 of the Regulations requires there is a nomination in respect of the occupational training to be lodged and approved by the Minister (or in this case, the Tribunal).  The Tribunal has not received any information from the second nominator that he has withdrawn the nomination but has been advised by the visa applicant that he is not proceeding with the nomination.  Neither the second nominator nor the visa applicant provided evidence that satisfies the Tribunal that the criteria in clause 442.223 of the Regulations has been met.  As the visa applicant does not have a nominator at time of the Tribunal’s decision, the Tribunal is unable to find that she meets the requirements of clause 442.222(1) of the Regulations.  Given the lack of evidence of a contemporary proposed training program and hence of the additional or enhanced skills the visa applicant would gain from the training, the Tribunal also finds that the criteria in clause 442.223 are also not met.

    Given the finding made above, the Tribunal has no alternative but to affirm the decision under review.”

    Conclusion

12. As noted earlier in these reasons for judgment, the application for review does not identify any coherent grounds of review.  The applicant’s principal complaint appears to be that she was not given enough time to find a fresh nominator.  Regardless of the merits of that complaint, it does not give rise to any legal error on the part of the Tribunal, still less any jurisdictional error. 

13. The Tribunal found that no nomination in respect of the occupational training had been approved at the time of decision as required by subcl 442.222(1).  No challenge has been made to that finding.  Accordingly, the Tribunal was required to affirm the delegate’s decision to refuse to grant the applicant a visa.

14. In addition, the Tribunal was not satisfied that the occupational training would give the applicant additional or enhanced skills as required by cl 442.223.  Once again, no challenge was made to that finding.  The Tribunal had repeatedly requested that the applicant and any suggested nominator provide further details in relation to the proposed occupational training, but none were forthcoming. 

15. The Tribunal was not obliged to give the applicant any further time to attempt to find a fresh nominator.  However, it allowed the applicant a period of two weeks.  No further nomination application was submitted.  The Tribunal therefore proceeded to determine the application on the basis that there was no approved nominator.  There was no discernible error on the part of the Tribunal in approaching the matter in that way.

16. It follows that the application must be dismissed.  The applicant must pay the respondent’s costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:             28 April 2003

The applicant appeared in person.
Counsel for the Respondent:	Mr C Horan
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	28 April 2003
Date of Judgment:	28 April 2003