FEDERAL COURT OF AUSTRALIA

Park v Minister for Immigration & Multicultural Affairs [2002] FCA 346

MIGRATION – appeal from decision of Migration Review Tribunal to refuse an application for a long stay temporary business visa – application was contingent on applicant’s employer being approved as a standard business sponsor – employer’s application was refused – whether the applicant was informed that the refusal of her employer’s application meant that her own application would fail – whether there was a denial of natural justice by the Migration Review Tribunal – Migration Review Tribunal’s decision was a “privative clause decision” – whether any alleged procedural deficiency in the Migration Review Tribunal’s decision went to the jurisdiction of the Migration Review Tribunal having regard to s 474 Migration Act 1958 (Cth) – whether Hickman principles applied

Migration Act 1958 (Cth) s 359A, 474

NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 followed

EUN YOO PARK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1398 OF 2001

HELY J

20 MARCH 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of the Republic of Korea who first entered Australia in 1991 on a student visa.  She has entered and left Australia several times since then.  The applicant appeared for herself on the hearing of this application.  While she has, if I may say so, a good command of the English language, understandably she has no appreciation of Australian legal concepts and obviously did not understand the limitations on judicial review.  Nothing that the applicant put to me exposed any error on the part of the Migration Review Tribunal (“MRT”).

2                     What the applicant put to me in the course of her submissions is that she is still operating the same travel agency business which she has conducted for the last 10 years in Australia.  Her business, Mayland Tours & Travel Services Co, is still persisting with its application for a business sponsorship approval and for those reasons she wishes a visa to stay in this country.  None of those matters comes anywhere near establishing error on the part of MRT.  I should, however, give some detail of the history of the application.

3                     On 1 September 1997 the applicant applied for a long-stay temporary business visa.  That application was made on the basis that she was sponsored by her Australian employer, Combination and International (“C&I”).  On 4 September 1997, C&I lodged an application for approval as a “standard business sponsor”.  C&I's application for approval was rejected by a delegate of the Minister on 23 November 1999.  No review of that decision was sought.

4                     Also on 23 November 1999 the Minister's delegate refused the applicant's visa application on the basis that she did not meet any of the tests in clause 457.223 of Schedule 2 to the Migration Regulations 1994 (Cth).  In particular, given the rejection of C&I as a nominator, she was not the subject of an “approved nomination”. 

5                     On 26 November 1999 the applicant applied to MRT for a review of the delegate's decision.  On 15 March 2001 MRT sent the applicant a letter inviting comment on a matter MRT considered would be a reason for affirming the delegate's decision, namely that C&I had not been approved as a business sponsor.  That letter became Exhibit A in these proceedings.

6                     MRT's decision describes the letter which has those characteristics as having been sent on 27 March 2001 but the green book of relevant documents does not contain any letter of that date.  I am satisfied that the reference of 27 March 2001 is an error and that the letter, Exhibit A, was the letter to which MRT intended to refer.

7                     On 17 April 2001 the applicant's migration agent advised MRT that a different company, KMCA Lee’s Pty Ltd (“KMCA”), had applied to the Department of Immigration & Multicultural Affairs (“DIMA”) for approval as a business sponsor in order to sponsor the applicant. 

8                     A hearing took place before MRT on 24 May 2001.  At the hearing, the new application for approval by KMCA was discussed.  Thereafter, various extensions of time were granted by MRT to the applicant in connection with the processing of KMCA's application.

9                     On 27 June 2001 the applicant’s advisers notified MRT that further information in support of KMCA's application had been lodged with DIMA the previous day, and sought a further extension of time.  However, on 28 June 2001 MRT was notified that KMCA's application had been refused by DIMA and that it intended to re-lodge the application with further supporting information.  DIMA’s letter of refusal was dated 13 June 2001.

10                  On 10 September 2001, MRT handed down its decision.  The basis of MRT's decision was as follows:

            (a)        the relevant visa class (Class UC) contained only two sub-classes, 456 Business (short stay) and 457 Business (long stay).  The former sub-class was not relevant as the applicant had sought to stay for more than three months;

            (b)        the applicant had framed her application on the basis of sponsorship and proposed employment by C&I;

            (c)        on that basis, a necessary criterion was that the proposed employer be a pre-qualified business sponsor or a standard business sponsor;

            (d)        however, C&I's application to be a standard business sponsor had been refused.  The time limit for seeking review of that decision appeared to have passed;

            (e)        in the light of the later applications by KMCA, the question for MRT was whether the applicant could change sponsors, and if so, whether MRT should delay its decision pending the outcome of KMCA's latest application;

            (f)         MRT decided not to delay its decision further in the light of:

                        (1)        the applicant's long delay in seeking to remedy this basic problem with her application;

                        (2)        the extensions of time already granted;  and

                        (3)        the fact that one of those extensions had been granted in circumstances where MRT was misled.

            (g)        on the basis that the applicant was not sponsored by a pre-qualified business sponsor or a standard business sponsor for the purposes of clause 457.223(4) or (5) of the Migration Regulations, she could not meet the requirements of those provisions and her application could not succeed.

11                  An application for review of MRT's decision was lodged with the Court on 5 October 2001.  That application gave the following as the ground of review:

“That the visa applicant was not informed at the time of application that the nominator had not been approved as a standard business sponsor and had to lodge a separate application for review before the Migration Review Tribunal.  She was not made aware at the time of application that her own application would and must fail without a successful appeal being made by the nominating business prior to being able to consider her appeal.”

12                  The application appears to allege a failure to comply with the principles of procedural fairness in that the applicant was not informed at the time of her application that she would be unsuccessful unless there was a successful appeal by her proposed nominator.  There are a number of problems which lie in the path of the applicant in that respect. 

13                  First, s 359A of the Migration Act 1958 (Cth) (“the Act”) sets out the nature of the information which must be provided by MRT to a person in the position of the applicant.  It has not been submitted by the applicant that the requirements of s 359A have not been met.  Second, MRT is not in the position of a contradictor, and except to the extent required by the Act, is not required to inform the applicant of hurdles that the applicant will have to overcome if she is to be successful in her application.  Third, MRT's letter of 15 March 2001 specifically advised the applicant that without there being an approved business sponsor, the visa criteria could not be met.  Fourth, that this was a problem for the applicant was also apparent on the face of the delegate's decision, as that was the substantial foundation of the decision of the delegate not to grant a visa. 

14                  The applicant has therefore not established any denial of natural justice on the part of MRT.  Even if a denial of natural justice could be established, the application for review was filed in this Court on 5 October 2001.  Judicial review of MRT's decision is thus subject to the provisions of the new Part 8 of the Act which came into effect on 2 October 2001, including, in particular, the provisions in relation to the privative clause.

15                  The decision of MRT is a “privative clause decision” as defined in s 474.  If there were any procedural deficiency in the manner in which MRT assessed the present application, any such failure would not be one which went to the jurisdiction of MRT having regard to the terms of the privative clause.  In NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263, a decision of Gyles J given on 15 March 2002, his Honour gave detailed consideration to the impact of the privative clause where the alleged procedural error consisted of a breach of the rules of natural justice.

16                  Paragraph 35 of his Honour's decision includes the following:

“In my opinion, s 474 operates according to its terms, which are inconsistent with the existence of [an] implied duty to afford procedural fairness by supplying information going beyond the requirements of Div 4 of Pt 7 of the Act, no matter upon which theory any such implication would be drawn.  This conclusion is reinforced by the passages from the Explanatory Memorandum and Second Reading Speech to which I have referred.  In my opinion, it is not legitimate to construe the Act on the basis that s 474 did not exist, particularly in relation to a version of the Act which had radically different judicial review provisions, conclude that a duty to afford natural justice existed and then ask whether s 474 takes away the corresponding right.”

17                  It therefore follows that the Application for Review must be dismissed.  It has not been suggested by the applicant, nor could it be suggested, that any of the Hickman conditions which are summarised in par 18 of Gyles J’s decision have been satisfied in the circumstances of the present case.

18                  The application for review does not challenge MRT's decision not to await the outcome of KMCA's second application before determining the applicant’s application.  It may be that such a challenge was implicit in the matters which the applicant was endeavouring to put to me this morning.  However, there is no error of law in the exercise of MRT’s discretion not to await the outcome of that application.  Whether to adjourn the proceedings in order to await that outcome was a matter within the discretion of MRT and a matter which was within its jurisdiction to determine. 

19                  For those reasons, the Application for an Order of Review should be dismissed with costs.

Associate:

Dated:              26 March 2002