FEDERAL COURT OF AUSTRALIA

Huo v Minister for Immigration & Multicultural Affairs [2002] FCA 617

MIGRATION – unsuccessful application for Business (Long Stay) subclass 457 visa – two successive corporate sponsorship applications relating to visa applicant refused – pending application to Migration Review Tribunal for review of Departmental decision to reject later of the two sponsorship applications – Tribunal rejected visa application by reason of absence of approved sponsorship relating to visa applicant – whether Tribunal should have awaited outcome of review of that later sponsorship application before determining the visa application – whether denial of natural justice by Tribunal determining visa application, or breach on its part of statutory obligations and conditions – whether jurisdictional error – whether privative clause of Migration Act effective to deny Court’s jurisdiction in the proceedings.

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 359A, 360, 430, 474

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Schedule 1, Clause 8(2)

Migration Regulations 1994 (Cth) Schedule 2, sub-clauses 457.223(2)(3)(4)(5)(6)(7)(8)(9), Regulations 1.20D, 1.20G

Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193 distinguished

Minister for Immigration and Multicultural Affairs v Bhardwaj [2000] FCA 789 distinguished

Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356 distinguished

Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28 referred to

Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 referred to

Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1523 considered

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105 referred to

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 considered

R v Murray; Ex parte Proctor (1949) 77 CLR 387 referred to

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 referred to

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 referred to

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 referred to

Re Refugee Review Tribunal; Ex parte HB (2001) 179 ALR 513 referred to

R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415 approved

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

NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281 followed

Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311 followed

NABM v Minister for Immigration and Multicultural Affairs [2002] FCA 335 followed

Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 477 followed

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

SHU QIANG HUO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1406 OF 2001

CONTI J

15 MAY 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1406 OF 2001

BETWEEN:	SHU QIANG HUO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	15 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for review be dismissed.

2. The Applicant pay the respondent’s costs of the proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1406 OF 2001

BETWEEN:

SHU QIANG HUO

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:	CONTI J
DATE:	15 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Circumstantial background

1 This is an application for review of the decision of a presiding member of the Migration Review Tribunal (“the Tribunal”) made on 12 September 2001 adversely to the Applicant. The decision was made in the context of a complex history of unsuccessful visa applications involving the Applicant which I will first summarise below.

2 The Applicant (“Mr Huo”), a Chinese national born 21 October 1954, arrived in Australia on 8 December 1997 on a Business (Short Stay) subclass 456 visa, which was due to expire on 18 January 1998. On 23 December 1997 Mr Huo lodged an application with the Department of Immigration and Multicultural Affairs (“DIMA”) for a Temporary Business Entry (Class UC) visa, nominating as his business sponsor Teda Hai De Ocean Group Ltd (“Teda Hai”) of Jianjin of the Peoples Republic of China. On 1 February 1999, a delegate of the Minister refused to grant that visa, for the reasons set out below:

“In assessing your nomination, the Minister must be satisfied (apart from not operating a business in Australia) that the sponsor would, on application, be likely to be approved as a standard business sponsor. Standard business sponsorships are assessed against Regulation 1.20D.

Having examined your sponsorship by Teda Hai De Ocean Group Ltd against regulation 1.20D, I find that you have not satisfied me that Teda Hai De Ocean Group Ltd can meet either of the two requirements of Regulations 1.20D(2)(c). Regulation 1.20(2)(c)(i) and (ii) comprises the ‘benefit to Australia’ test criteria, which all prospective sponsors must satisfy. All prospective employers must meet one or other of Regulation 1.20(2)(c)(i) or (ii).

Regulation 1.20D(2)(i) reflects the Australian Government’s requirement that businesses bring into Australia, people who are highly skilled and who can introduce, utilise or create in Australia new or improved business skills or new or improved technology.

Having closely examined the submission and documents contained on your file, I find that this criterion has not been satisfactorily addressed or demonstrated. There is no information contained with your sponsorship or evidence from your business activities in Australia to date, to satisfy me that your employer has or will, in any way introduce, utilise or create in Australia new or improved business skills or new or improved technology.

In respect of claims against Regulation 1.20D(2)(c)(ii), employers are required to either produce clear evidence of a satisfactory training record or of having a demonstrated commitment to training. Policy states that a ‘demonstrated commitment’ should include a detailed training plan which clearly indicates the proposed number(s) of persons (permanent employees) to be trained within the business and the nature and duration of training to be offered. In other words, the proposal should be sufficiently detailed or ‘quantifiable’ to enable an evaluation of progress to be made in the course of monitoring.

I find that this matter has also not been satisfactorily addressed. There is no information contained with your sponsorship or evidence from your business activities in Australia to date, to satisfy me that your employer either has a satisfactory training record or demonstrated commitment to training Australian citizens or permanent residents in its Australian operations. Consequently, I am not satisfied that Regulation 1.20D(2)(c) has been met.

I also find that you have not provided any legal document prepared and registered in Australia that supports the claim that Teda Hai De Ocean Group Ltd has any ownership interest, legal or beneficial, in Haide Ocean Australia Pty Ltd. I do not accept that your sponsor would employ you to come to Australia to set up a ‘branch office’ and then not hold a substantial ownership interest in that business. Evidence of your salary arrangements is also only circumstantial and I have given this little weight in my consideration. Consequently, I am not satisfied that your sponsor is your direct employer, or that your sponsor is related to a body corporate that proposes to be your direct employer. Hence, I am not satisfied that Teda Hai De Ocean Group Ltd is likely to meet Regulation 1.20D(2)(b)(iii).

I find that Teda Hai De Ocean Group Ltd (apart from not operating a business in Australia) would therefore, not be likely to be approved as a standard business sponsor, therefore that nomination is refused on the basis that Regulation 1.20G(1)(d)(ii) is not met.

In examining your visa application under the provisions of 457.223(6) it therefore follows that this is also refused as you are not the subject of an approved nomination as required by Regulation 457.223(6)(b).

Further to this, I note that regulation 457.223(6)(f) is also not met. I am not satisfied that Teda Hai De Ocean Group Ltd is your direct employer (as mentioned above). Your business activities to date, on the evidence presented, appear to have been very limited given the time you have now spent in Australia for this specific purpose. Those activities do not appear to have been for the purposes of establishing or assisting in fulfilling contractual obligations for your employer, but rather for your own business intent. There is also little to indicate any actual benefit to Australia from your activities to date.

I have found that you cannot satisfy the requirements of subclause (6) of regulation 457.223 and the information available to me contains no claim or evidence that you could satisfy the criteria of any other subclause of that regulation. As you do not satisfy regulation 457.223, you cannot be granted a subclass 457 visa.”

3 On 26 March 1999, a Review Officer of DIMA affirmed the delegate’s decision, upon the basis that Mr Huo had not satisfied the requirements of subclasses 457.223(2)(3)(4)(5)(7)(8) or (9) of Schedule 2 of the Migration Regulations 1994. Subsequently on 19 April 1999, Mr Huo lodged an application for review of the Review Officer’s decision to what was then known as the Immigration Review Tribunal, and is now known as the Migration Review Tribunal.

4 On 23 December 1999, newly appointed migration agents for Mr Huo notified the Tribunal that he wished to be considered for a subclass 457-223 category (7) visa [Independent Executive], and in support of that application, the migration agents provided certain information and documentation regarding the proposed establishment of an investment project in Cootamundra in the State of New South Wales for the manufacture of textile underlay, rubber underlay and felt by an Australian incorporated company JNZ International Pty Ltd (“JNZ”), whereof Mr Huo would be a director and 20% shareholder. That information included the following:

“1. Mr Huo is the sole director and shareholder of Tianjin Economic Development District Haide Group Co Ltd. Mr Huo came to Australia and would like to have a joint venture business with Hainan Ocean Group Co Ltd to establish business in Australia. Soon after the decision [was] made, a company named Haide Ocean Pty Ltd was incorporated in Australia, [and] Mr Huo is appointed as a director of the company…

2. Since Mr Huo arrived in Australia, he has done a deep marketing research in building material and construction industry and established his business relationship with many building industry fellows.

3. After a long and careful business study, Mr Huo decided to involve in an investment project to set up Textile Underlay, Rubber Underlay and Felt Manufacturing facilities at an Australian remote area – Cootamundra. Details of the investment and benefits of the investment have been outlined in the Statement of Cootamundra Investment.

…

Based on all information supplied above, we believe the applicant has met the criteria of subclass 457.223(7). JNZ International Pty Ltd would also like to act as a sponsor for Mr Huo’s long stay visa application.

…”

5 On 19 April 2000, the Tribunal notified Mr Huo that it had rejected that application of 23 December 1999, in the following terms:

“Re: Refusal of Class UC visa

The Tribunal is required, pursuant to section 359A of the Migration Act 1958, to provide you with particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review.

Particulars of the information and the reasons that the information is relevant to the review are:

· The case file SA98/1579 from the Department of Immigration and Multicultural Affairs.

· This information discloses that a decision was made on 1 February 1999 not to approve the business nomination made by Teda Hai De Ocean Group Ltd.

A criterion for the visa that you had applied for is that it relates to an activity that ‘is the subject of an approved business nomination by the employer’. Without there being an approved business nomination, the visa criteria cannot be met.

You are invited to comment, in writing, on this information within 28 days of the date of notification of this invitation to comment...

If you make comments, the Tribunal will consider your comments carefully. If the Tribunal is still unable to make a decision in your favour, it will then provide you with an opportunity to appear before the Tribunal.

If the Tribunal does not receive any comments within the above period, it may, pursuant to section 359C of the Act, make a decision on the review without taking any further action to obtain your comments on the information provided; and you will not be entitled to appear before the Tribunal.”

6 On 2 June 2000, the Tribunal wrote to Mr Huo extending to him an offer to attend a hearing scheduled for 24 July 2000. Mr Huo subsequently forwarded a “Request for Hearing Form” to the Tribunal by way of acceptance of the foregoing invitation, which form was received by the Tribunal on 20 June 2000.

7 On 21 July 2000 Mr Huo’s migration agents provided further information and documentation in support of his application for review of the refusal by the Tribunal to accede to his abovementioned Teda Hai business sponsorship application. The letter commenced as follows:

“We appreciate the manner which have reached the decision of [DIMA]. We believe that given the information you were presented, it would be the only conclusion. Having reviewed the information presented to you it is obvious the many crucial information and evidence was not presented and others were unclear…”

The documentation so provided comprised a letter of appointment by Teda Hai Ocean of Mr Huo as general manager of Haide Ocean (Australia) Pty Ltd (“Haide Australia”) with responsibility for its Australian investments, a business plan for JNZ and financial and corporate information about that company, and the letter comprised 6 pages of information concerning Teda Hai and the proposed Cootamundra investment and infrastructure. An enclosed share certificate showed that Haide Australia was a shareholder in JNZ.

8 On 24 July 2000, a Tribunal hearing took place in relation to the rejection of the business sponsorship application previously made by Teda Hai. There was thus no current nomination application before DIMA awaiting determination. Mr Huo said that he wished to seek sponsorship and nomination by JNZ. Mr Huo was informed that if he wished to lodge a new application he could do so, and that he would be allowed 14 days to lodge a fresh business nomination application form for the Tribunal to consider.

9 Mr Huo’s migration agents, in their purported capacity as agents for JNZ, lodged on 4 August 2000 a fresh application for a temporary long stay subclass 457 visa category (4) – Sponsorship by an Australian business, citing JNZ as the business sponsor and Mr Huo, Shu Quiang and Ms Qiu Xiang Li as nominees. The application stated that “The sponsor meets the criteria of regulation 1.2D” (intended to refer to Regulation 1.20D) for the following reasons:

“1.2D(2)(a) The employment of two nominees will contribute to the creation of employment for Australian citizen(s) or Australian Permanent Residents, expansion of Australian trade in food and services and improve of (sic) Australian business links with international markets and increase competitiveness within sectors of the Australian economy.

1.2D(2)(c) The sponsor has a satisfactory record of and demonstrated commitment towards training Australian citizens and Australian permanent residents in the business operation.”

Regulation 1.20D(2), so far as is material, reads as follows:

“(2) The Minister must approve an application for approval as a pre-qualified business sponsor, or as a standard business sponsor, made in accordance with regulation 1.20C if:

(a) the Minister is satisfied that the applicant for approval is lawfully operating in Australia a business in which the employment of the holder of a Subclass 457 (Business (Long Stay)) visa would contribute to:

(i) the creation or maintenance of employment for Australian citizens or Australian permanent residents; or

…

(i) will introduce to, or utilise or create in, Australia new or improved technology or business skills; or

(ii) has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia;

…”

An assertion was also made by the migration agents for Mr Huo as to satisfaction of the criteria of 457.223(4) for the five reasons that were thereafter set out. JNZ in its capacity as sponsor provided a corporate profile and information about the Cootamundra project, and individual profiles of each of the three nominees including that of Mr Huo as the intended general manager.

10 On 24 July 2001, that is to say, nearly 11 months later, JNZ was notified by DIMA, in the form of a document headed “Standard Business Sponsorship Refusal And Instrument Of Decision”, that the Standard Business Sponsorship application of JNZ had been assessed and not approved, for the reason that Migration Regulation 1.20D(2) was not satisfied. Set out below under the heading “Case Details” included the following reasons:

“JNZ International aka JINZ International Pty Ltd lodged an application to be approved as a standard business sponsor on 10 August 2000 in respect of the abovenamed applicants.

This application was in addition to those already lodged by JINZ International Pty Ltd in DIMA Canberra in March 2000 and at The Rocks in May 2000. JINZ International then lodged another sponsorship application in this office in April 2001.

Following receipt of the first sponsorship application in March 2000 a thirty-five page letter was sent to the applicant on 3 May 2000 requesting further documentation to demonstrate that the business satisfied the above Migration Regulations. Over time information was received in response to the letter.

The information was sent to Department of Employment Workplace and Small Business (DEWRSB) for their comment on training.

While the JINZ International claims to have been registered since 1997 with trading commencing in 1998. There appears to have been little if any recruitment and training of Australians. Evidence has not been provided on the number of Australians employed by JINZ International P/L aka JNZ in its operations while the company structure chart identifies a number of positions, these would appear to be occupied by expatriates nominated under previous and concurrent sponsorships and nominations lodged by JINZ International and related companies, further information received refers to the employment of 10 Australians with the intention to employ a further 40 workers in 2 years. This has not been evidenced and is inconsistent with information contained in the Financial statements provided. The financial statements provided for the previous year make no reference to expenditure on recruitment or training, they identify expenditure on wages at $28,080 which is significantly less than the salary levels referred to in previous nominations lodged by Jinz International.

While the supporting documentation includes copies of correspondence with the Riverina Group Training Company and the Riverina Institute of TAFE, DEWRSB recently had a teleconference with representatives of these organisations confirming the training initiatives referred to in the correspondence have not been realised. The representatives stated that to the best of their knowledge no progress has been made in respect of the operations of Jinz International or the recruitment of Australians for positions within Jinz International or JNZ International.

On the 7 June 2001 myself and two employees from the department visited Jinz International P/L in Cootamundra NSW to ascertain the current status of the business and check the number of employees currently working at the factory. The only member of staff currently working at the factory was one Manager. The factory is clearly non-operational and never has been. Based on the information held I am not satisfied that Jinz International meets the above criteria.”

11 On the same day, the Tribunal wrote to Mr Huo concerning his application to the Tribunal referred to in [3] above, as follows:

“I am writing about your application to the Tribunal for review of decision refusing to grant you a Temporary Business Entry (Class UC) visa.

The Migration Act 1958 (the Act) contains provisions intended to ensure both a fair and speedy review process. These include opportunities for review applicants to respond to material before the Tribunal, as well as limits on further opportunities if there is a failure to provide comments within a specified period.

Section 359A of the Act states that the Tribunal must explain, and invite comment on, ‘particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’.

You are invited to comment, in writing, on the following information:

Department information discloses that a decision was made on 23 July 2001 to refuse the application made by JNZ International P/L aka Jinz International P/L for approval as a business sponsor (copy attached).

This information is relevant to the review because:

The basis upon which you had applied for the visa is that you would be employed by an approved business sponsor. Without there being an approved business sponsor, the visa criteria cannot be met.

The above information does not include information that you gave the Tribunal for the purpose of the application, or information that, under the Act, is non-disclosable.

Your written comments should be provided within 28 days of the date of notification of this invitation. As this letter has been posted, you will be considered to have been notified of this invitation to comment 7 days after the date of this letter. The effect of this is that you have a total of 35 days from the date of this letter to respond.

If you are unable to provide comments within this period, you may request in writing that you be allowed additional time in which to respond. Such a request would need to include reasons for the extension and to be received before the end of the above period. The Tribunal will consider any request for an extension carefully, and advise you, in writing, whether an extension of time has been granted.

If you make comments, the Tribunal will consider your comments carefully.

If the Tribunal does not receive any comments within the period allowed, it may, under section 359C of the Act, make a decision on the review without taking any further action to obtain your comment.

Please telephone me if you have any questions. You may reverse the charge if this office is outside your local area.”

12 By letter dated 26 July 2001, being a critical date in the evolution of the circumstances leading to Mr Huo’s proceedings in this Court, Ms Zhu Li lodged a request to the Tribunal for review of the refusal of the JNZ business sponsorship application, which took the form of a four page letter written on the letterhead of JNZ. Ms Zhu Li and Mr Huo had been disclosed in the JNZ material produced to the Tribunal as being entitled each to an annual salary of $50,000 and accommodation, and in addition each to 20% of the net profits of JNZ. No details were provided in relation to any other employee. That request was received by the Tribunal on 27 July 2001. After receiving the request, the Tribunal wrote on 1 August 2001 to Zhu Li as follows:

“Your application for review of a migration decision was received by this registry on 31 July 2001.

I have requested the Department of Immigration and Multicultural Affairs for a copy of all documents that relate to your application. You should provide any documents or written arguments you wish the Tribunal to consider and which you have not already provided to the Tribunal or the Department.

Your application has been listed as a priority 4 case.

You should also carefully read the enclosed information sheet, which includes information abut the Tribunal’s procedures, priorities and the order in which applications are considered.

Please quote your MRT file number, provided above, in all dealings with the Tribunal.”

The “enclosed information sheet” was not reproduced in the bundle placed before the Court.

13 On 23 August 2001, Mr Huo advised the Tribunal, per medium of the migration agents who had lodged the JNZ application for review to the Tribunal, that JNZ was “appealing against the decision”. The full text of the letter was as follows:

“We are writing in regard to the application for Mr Huo, Shu Qiang’s application for Business long stay. The sponsorship application by JNZ International Pty Ltd has been rejected. The applicant is invited to comment the application.

Firstly, JNZ is appealing against the decision. The Application for Review of Migration Decision has been lodged by JNZ International Pty Ltd and we hope that the decision will be favourable. (Copy of the submission letter is attached).

Mr Huo’s involvement in JNZ is two folds. Firstly, it is his investment into JNZ holding a 20% stake. Secondly, Mr Huo specifically ceased all other business activities in Australia and move to live in Cootamundra. He did this to concentrate on JNZ’s setting up phase. His experience in machinery and setting up production schedule of the Cootamundra has been severely delayed. Presently, we are having difficulty in conveying to the department that these delays were beyond the control of the directors. The directors has (sic) also suffered substantial losses as a result of these delay both in lost orders as well as machinery damage. The directors have made substantial investments that can be verified by documentary evidences as well as physical evidence. However, as a result of the circumstantial factors the department has concluded that it is not evident that JNZ Pty Ltd have met the criteria to be an approve (sic) sponsor. Even in the face of such unfavourable circumstances JNZ Pty Ltd have pressed on with the project by ordering new machinery to replace the ones that were damaged. If anything this has shown that JNZ Pty Ltd is fully committed to the Cootamundra project.

The local council in Cootamundra has in one accord attested to the importance of the project to rural community like them as well as testified to the effort of those involved in ensuring that the project succeed. Mr Huo is also fully committed to the projects. However, to see the project to fruition Mr Huo needs to be able to remain in Australia.

In the event that JNZ Pty Ltd is not successful in its appeal Mr Huo would like to request that the Tribunal consider the option of granting Mr Huo a short stay period under a visa class 457 or 456. This will allow Mr Huo to complete his work in Cootamundra.

We therefore, sincerely request that the department consider Mr Huo’s situation as well as his request.”

14 On 30 August 2001, the Tribunal notified Mr Huo that a decision had been made in respect of his request for review of the unfavourable decision on his Temporary Business Entry (Class UC) visa application, and invited him to attend the formal handing down of its review decision, which was scheduled for 12 September 2001. Mr Huo was informed that the reasons for decision would not be read out, but a copy of a written statement of reasons would be provided at the time, or if he did not attend the Tribunal on that occasion, the same would be posted to him.

The Tribunal’s conclusions and reasons

15 On 12 September 2001, the Tribunal handed down its decision affirming the decision under review of the Minister’s delegate to refuse Mr Huo’s visa application, concluding as follows:

“26. The Tribunal is satisfied that the visa applicant’s proposed employer has not been approved as a business sponsor as required by either subclause 457.223(4) or subclause 457.223(5).

27. The Tribunal is satisfied that there is no approved business nomination. The visa applicant is therefore unable to meet 457.223(6).

28. The visa applicant does not meet the criteria for a Subclass 456 visa, or meet the criteria for a Subclass 457 visa on any other ground. The Tribunal must affirm the decision under review.”

16 Before summarising the Tribunal’s reasons for its foregoing conclusions, I set out below for ease of reference the full text of subclauses 457.223(4), (5) and (6) of Subclass 457 Business (Long Stay) of Schedule 2 to Migration Regulations 1994 as then in force:

“(4) The applicant meets the requirements of this subclause if:

(a) the activity in which the applicant proposes to be employed in Australia by a person (in this subclause called the employer) is a key activity; and

(b) that activity is the subject of an approved business nomination by the employer; and

(i) a pre-qualified business sponsor; or

(ii) a standard business sponsor; and

(d) the applicant is nominated in relation to the activity by the employer; and

(e) where:

(i) the employer is a standard business sponsor; and

(ii) the application is made for a stay in Australia of more than 12 months;

the applicant demonstrates (if so required by the Minister) that the applicant has the skills necessary to perform the activity.

Sponsorship by Australian businesses : non-key activities

(5) The applicant meets the requirements of this subclause if:

(a) the activity in which the applicant proposes to be employed in Australia by a person (in this subclause called the employer) is not a key activity; and

(b) that activity is the subject of an approved business nomination by the employer; and

(i) a pre-qualified business sponsor; or

(ii) a standard business sponsor; and

(d) the applicant is nominated in relation to the activity by the employer; and

(e) where the application is made for a stay in Australia for more than 12 months, the applicant demonstrates that he or she has the skills necessary to perform the activity; and

(ea) where the application is made for a stay in Australia for 12 months or less, the applicant demonstrates (if so required by the Minister) that he or she has the skills necessary to perform the activity; and

(f) where the employer is a standard business sponsor, the Minister is satisfied that the position to be filled by the applicant has not been created only for the purposes of securing the entry of the applicant to Australia.

Sponsorship by overseas businesses

(6) The applicant meets the requirements of this subclause if:

(a) the applicant proposes to be employed in Australia by a person (in this subclause called the employer) who does not operate a business activity in Australia; and

(b) that activity is the subject of an approved business nomination by the employer; and

(i) has given undertakings in accordance with approved form 1067; and

(ii) is a person whom the Minister is satisfied (apart from not operating a business in Australia) would, on application, be likely to be approved as a standard business sponsor; and

(d) where:

(i) the activity is a key activity; and

(ii) the application is made for a stay in Australia of more than 12 months;

the applicant demonstrates (if so required by the Minister) that the applicant has the skills necessary to perform the activity; and

(e) where the activity is not a key activity:

(i) the Minister is satisfied that the position to be filled by the applicant has not been created only for the purposes of securing the entry of the applicant to Australia; and

(ii) in the case of an application for a stay in Australia of more than 12 months – the applicant demonstrates that he or she has the skills necessary to perform the activity; and

(f) the Minister is satisfied that the applicant has a genuine and realistic commitment to:

(i) establish, or assist in establishing, on behalf of the employer, a business activity in Australia with overseas connections; or

(ii) fulfil, or assist in fulfilling, contractual obligations of the employer;

that will be of benefit to Australia.”

Thus it will be appreciated that an applicant for a subclass 457.223 Business (Long Stay) visa is required to have in place the requisite business sponsorship at the time of decision-making upon his or her application, but not necessarily earlier. Hence there exists the potential for delay on the part of a visa applicant in the finalisation of his or her application. In addition, an applicant is required to be involved in a “key activity” within the organisation which sponsors him or her, that being a term defined in Regulation 1.20B as an activity which is essential to the business operations of the sponsor employer. If there is satisfaction of the criterion for a business sponsor under Regulation 1.20B, recourse is undertaken to Regulation 1.20G, which deals with the requirement that the nomination of certain business activities takes place. A potential outcome of the regulatory scheme is that a person may apply for a Business (Long Stay) visa based on the expectation of approved sponsorship, and in the event that the requisite sponsorship does not eventuate, the applicant may seek to make a further application which cites a different corporate entity as the sponsor. In those circumstances, there may be produced, as pointed out on behalf of the Minister, the situation whereby an applicant may remain within the immigration system by the expedient of continuing to seek sponsorship from different businesses, even though such applications may be continuously refused at the various levels of the administrative appeals process. In Mr Huo’s case, he has been residing in this country since 8 December 1997.

17 In the formulation of its reasons for the conclusions already set out in [15] above, the Tribunal referred to the circumstances that a Subclass 457 visa could be obtained on a number of grounds, and that the ground under which Mr Huo’s visa application was initially made was “sponsorship by an overseas business”, though at a later date, his visa applications had been made as an independent executive, and as a “standard business sponsor”. The Tribunal recorded that one criterion for the grant of a Subclass 457 visa on the basis of sponsorship by an “overseas business”, or “more specifically, “a person… who does not operate a business activity in Australia”, was that the same related to an activity that “is the subject of an approved business nomination by the employer” (paragraph 457.223(6)(b) of Schedule 2 to the Regulations). However as the Tribunal next observed, the nomination of the activity of Mr Huo as general manager of Teda Hai had been refused by the delegate on 1 February 1999 (see [2] above), and decisions of that kind could not be reviewed by the Tribunal. After referring to paragraphs 4(d) and (5)(c) of Regulation 4.02, and the circumstance that a “business sponsor” must be lawfully operating a business in Australia (paragraph 1.20D(2)(a) of the Regulations), whilst an “overseas business must not (yet) be operating a business in Australia (paragraph 457.223(6)(a)), the Tribunal confirmed that the definition of the term “business sponsor” in Regulation 4.02 reflected an intention that review rights do not extend to an “overseas business”, which was consistent with standing rules in relation to other kinds of visas. Consequently unless there was an approved business nomination in place, the Tribunal emphasised that it was not possible for a visa applicant (such as of course Mr Huo) to meet the paragraph 457.223(6)(b) requirement that “activity is the subject of an approved business nomination by the employer”, and if that criterion could not be met, the Tribunal said that it followed that it was unnecessary to consider the other criteria set out in subclause 457.223(6).

18 As to what it described as the independent executive claim of Mr Huo, the Tribunal pointed out that as from 1 December 1997, all applications for the “Independent Executive” stream were required to be made from outside of Australia (item 1223A(3)(ab) of Schedule 1), and that the visa could only be granted if the applicant was outside Australia (clause 457.411). Since Mr Huo had informed the Tribunal that he wished the application to be considered on the basis that he would be employed by JNZ (which the Tribunal observed to be an Australian company) as a director, and that JNZ would seek approval of the sponsorship and nomination of Mr Huo, the Tribunal was satisfied on that basis that clause 457.223(7) was not applicable. One necessary criteria for a Subclass 457 visa, the Tribunal pointed out, on the basis of a sponsorship by a business operating in Australia, was that the proposed employer should be a pre-qualified business sponsor or a standard business sponsor (subclauses 457.223(4) and 457.223(5) of Schedule 2 to the Regulations). However as I have already recorded, the application for approval as a business sponsor made by JNZ in respect of Mr Huo had been refused by DIMA on 23 July 2001.

19 The Tribunal next recorded Mr Huo’s advice to it to the effect that JNZ as the business sponsor of Mr Huo had lodged an application for review of the DIMA decision of 23 July 2001 with the Tribunal on 31 July 2001. However the Tribunal decided to proceed to make a decision on Mr Huo’s visa application without awaiting the outcome of the JNZ sponsorship review application made to the Tribunal, and in so doing, it stated that it paid regard to Principal Members Advice 01/2001. The Tribunal further recorded that it should implement the Tribunal’s obligation to conduct a mechanism for review that was “fair, just, economical, informal and quick”, and should take account of the absence of any statutory obligation of the Tribunal to grant adjournments for the purposes of enabling approvals under Regulation 1.20D to be obtained in the meantime, and also to the policy expressed in Principal Members Advice 3 (Division 1.4a (processing 3.3)). The Tribunal thereupon proceeded to hold that it was not satisfied that there were exceptional circumstances in this case to justify the grant of an adjournment to Mr Huo to await the sponsorship review application, and to make the formal finding that Mr Huo’s proposed employer JNZ had not been approved as a business sponsor as required by either subclause 457.223(4) or subclause 457.223(5). In the result, the Tribunal reached the conclusions set out in [15] above.

Jurisdiction of the Court

20 The Court’s jurisdiction to determine this application for review of the decision of the Tribunal is founded on s 39B of the Judiciary Act 1903 (Cth) and Part 8 of the Act. The date of commencement of Part 8 of the Act is prescribed by clause 8(2) of Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) to be 2 October 2001. It is common ground between the parties that Mr Huo’s application to the Court for review of the Tribunal’s decision of 12 September 2001 falls to be determined under the privative clause regime the subject of Part 8.

21 Section 474(1) of Part 8 of the Migration Act (“the Act”) is reproduced below for each of reference:

“A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called into question in any court; and

22 A “privative clause decision” is defined by s 474(2) of the Act as follows:

“privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a discretion referred to in subsection (4) or (5).”

The submissions of Mr Huo and my findings in respect thereof

23 Counsel for Mr Huo made the following five central submissions to the Court in support of the application for review:

(i) The Tribunal’s purported decision was made in circumstances where there occurred significant breaches of the rules of natural justice, including the applicant’s most fundamental right to procedural fairness, both at common law and under section 360 of the Act, being breaches constituting jurisdictional error.

(ii) In reaching its decision in the way it did, the Tribunal failed to “review” Mr Huo’s application for review as required under section 430 of the Act,such failure also amounting to jurisdictional error.

(iii) By the Tribunal failing to consider first, whether Mr Huo met the other criteria under subclause 457.223(6) and secondly, Mr Huo’s eligibility under other categories of subclause 457.223 visa, Mr Huo was denied procedural fairness, such as to amount to jurisdictional error.

(iv) By reason of such jurisdictional errors, the Tribunal’s purported decision was null and void, and prerogative relief by way of prohibition and mandamus should issue in favour of Mr Huo, pursuant to the Court’s jurisdiction under s 39B of the Judiciary Act 1903 (Cth).

(v) Such prerogative relief in favour of Mr Huo was not precluded under the recently introduced Part 8 of the Act, as such jurisdictional errors cannot be validated by a privative clause such as comprised by s 474 of the Act.

The Minister has categorised the essence of these five heads of challenge as boiling down first, to breach of the rules of natural justice “both at common law and under section 360”, and secondly, to failure to address all the possible bases for the grant of a relevant visa.

24 As to the first submission of Mr Huo, articulated under the heading “Breach of natural justice and denial of procedural fairness”, Counsel for Mr Huo referred in particular to s 359A of the Act, sub-section (1) whereof reading as follows:

“359AApplicant must be given certain information

(1) Subject to subsection (2), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

That submission overlooked the content of the letter sent by the Tribunal to Mr Huo on 24 July 2001, which I have extracted in [10] above. Commencing nevertheless in that context, Counsel for Mr Huo traced at some length the operation of other provisions of Division 5 of Part 5 of the Act, which relate to the Tribunal’s conduct of the review of a DIMA decision, submitting that “there were several breaches of these statutory requirements which amounted to a denial of natural justice, procedural fairness, and as a consequence, jurisdictional error, in relation to the application of JNZ for sponsoring Mr Huo, Shu Quiang and Qiu Xiang Li referred to in [9] above. Reference was made in that context to the Tribunal’s letter of 24 July 2001 referred to in [11] above, and the reply of Mr Huo’s migration agents to the Tribunal dated 23 August 2001 extracted in [13] above, and the lodgment in the meantime of JNZ’s application to the Tribunal for review of the DIMA decision of 23 July 2001 relating to JNZ’s sponsorship application referred to in [12] above, and the Tribunal’s notification of 30 August 2001 to Mr Huo of the making of, and intention to hand down, its decision on Mr Huo’s personal application referred to in [14] above. Counsel for Mr Huo thereafter contended “…at no stage was the applicant invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review…, in breach of Mr Huo’s fundamental common law right to a fair hearing but further, in breach of section 360 of the Act, particularly as the applicant had provided comments within the set period of time, as invited to do under the section 359A notice”. However the obligation imposed upon the Tribunal by subs 360(1) to invite an applicant for review to appear before it to give evidence, and to present arguments, does not apply in circumstances where subs 359C(2) applies to an applicant, which was the case here by virtue of the Tribunal’s letter of 24 July 2001 extracted in [11] above, which contained an invitation to Mr Huo to respond to the absence of existence of an approved business sponsor. Nor in those circumstances can there be postulated a breach of a so-called fundamental common law right to a fair hearing.

25 After then referring to the joint judgments in Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193 (Wilcox and Hill JJ) at [31] and in Minister for Immigration and Multicultural Affairs v Bhardwaj [2000] FCA 789 (Beaumont and Carr JJ), Counsel for Mr Huo submitted that the necessary consequence to follow was that any decision made by the Tribunal was null and void. That consequence did not however follow for the reasons I have already explained. In relation to Capitly, the circumstances were that on the day of review, the applicant was ill and needed to travel in severe weather conditions, yet was denied an adjournment in circumstances where that denial operated to negate his opportunity to appear before the Tribunal to give evidence, and in Bhardwaj, the Tribunal was unaware of a facsimile advising that the applicant would be unable to attend the hearing due to illness, and that an adjournment would be sought. Thus both decisions each related to a significantly different consideration to that sought to be here raised. Nevertheless the contention further pursued on behalf of Mr Huo was to the effect by 30 August 2001, when the Tribunal notified Mr Huo that it had reached its decision, and would be handing down the same on 12 September 2001, “it must have been abundantly clear” to the Tribunal that Mr Huo wished to be heard in relation to his visa application before the Tribunal, for instance in relation to the JNZ sponsorship application (no other matter was identified). How such a circumstance could be described as “abundantly clear” entirely escapes me, since the rejection of the JNZ sponsorship application had been in place, to Mr Huo’s knowledge, since 23 July 2001, and there was no statutory basis for postponement of the taking effect of the DIMA rejection pending a review decision of the Tribunal in relation thereto. As to the second submission, Counsel for Mr Huo submitted that once the Tribunal became aware of the JNZ application for review made by the JNZ letter of 26 July 2001, and of the letter of Mr Huo’s migration agents to the Tribunal of 23 August 2001, respectively referred to in [12] and [13] above, the Tribunal could and should have adopted any one of several courses which would have prevented the denial of natural justice said to have taken place:

adjournment of Mr Huo’s application for review of his visa application, either to be heard together with the JNZ application, or on a day following the hearing of the JNZ application.
bring forward the hearing of the JNZ application, and have that matter heard together with Mr Huo’s application.
Hear and determine on its merits Mr Huo’s application independently of the JNZ application, and if necessary, adjourn Mr Huo’s application to a later date, as permitted by subs 363(1) of the Act, along with the JNZ application.

Each of the foregoing “options” were submitted alternatively as appropriate and necessary to ensure a proper determination of each of Mr Huo’s applications for review. The exercise of any one of the foregoing three options would have ensured, so it was contended, a proper determination of the applications for review made by JNZ and by Mr Huo personally. Counsel for Mr Huo sought to obtain assistance by analogy to what occurred in Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356, in which it was held that the Tribunal should have deferred its decision upon an application for a Class 816 visa until the Department of Industrial Relations had properly undertaken its assessment of the applicant’s trade qualifications. Mr Huo can gain no support however from that judicial authority, because there is an absence here of fulfilment of the statutory condition precedent as to an approved sponsor. So much had been made clear to Mr Huo as far back as 19 April 2000, in the context of the Tribunal’s rejection of the Teda Hai sponsorship application (see [5] above).

26 Nevertheless, so this further submission continued, the Tribunal effectively dismissed Mr Huo’s application without giving a “proper, genuine and realistic consideration to the merits of the case”, and reliance was purportedly placed on the statement of principle in Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28 (Merkel J in a Full Court also comprising Wilcox and Lindgren JJ) at 64. Thus, so the second submission added, Mr Huo’s visa application was dismissed without having been afforded proper consideration, and the Tribunal was in breach of s 348 of the Act, as explained in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 (Heerey, Goldberg and Weinberg JJ), that section reading as follows:

“348 Migration Review Tribunal must review decisions

(1) Subject to subsection (2), if an application is properly made under section 347 for review of an MRT-reviewable decision, the Tribunal must review the decision.

(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.”

There is no suggestion in the evidence that the Tribunal would not review the JNZ application for review at an appropriate time in the future. In the meantime, the criterion for a business sponsor under Regulation 1.20B remained unsatisfied, with the consequence that Mr Huo was not entitled to remain in Australia without a bridging visa. By the time of the Tribunal’s decision on 12 September 2001 the subject of the present application for review, the status quo relevantly was two rejections of sponsor applications relating to Mr Huo, one on the part of Teda Hai, and the other on the part of JNZ. I am therefore unable to understand why the Tribunal was not lawfully entitled to adopt the approach in principle which I have summarised in [19] above. The reality was that Mr Huo has resided in Australia for more than four years without having been able to establish a business sponsorship to the satisfaction of DIMA or the Tribunal.

27 Reliance was placed by Counsel for Mr Huo upon the following dictum of Sackville J in Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1523, expressed in the following way:

“1. The applicant relies on the reasoning and approach adopted by Sackville J in Zhao v MIMA [2000] FCA 1523 as to when an adjournment of proceedings before the Tribunal, similar to these, will be warranted. As was noted by Sackville J (at para 29), in that case:

“the MRT had examined the material supplied by the applicant with a view to determining whether Everglow’s nomination was likely to be approved. It found that the material supplied to the MRT did not address ‘some matters vital to the favourable assessment’ of the nomination. It is implicit in the MRT’s reasoning that it considered that approval of Everglow’s nomination was neither imminent nor, in the absence of further information, likely. It is also implicit that, had the MRT considered that Everglow’s nomination was likely to be approved, it may well have awaited the outcome of the approval process.”

2. It is submitted that in this case, the Tribunal should have adopted a similar approach on 12 September 2001 in deciding whether to await the outcome of the pending (on review) JNZ business nomination. Given the material available to the Tribunal by that time, it was clear that the applicant’s visa application had merit, had addressed all the vial criteria and was genuine (eg had involved large financial expenditure by the applicant). Furthermore, it was clear from the applicant’s prior conduct (eg timely lodging of further application for business sponsorship by JNZ: substantial amount of material lodged in support of that application) that the applicant was not motivated by a desire to delay the appeal process, which was the main concern addressed in the Principal Member Advice 01/2001.

3. In such circumstances it is submitted that the Tribunal should have concluded that this was a situation where adjournment of the proceedings, to await the outcome of the review of the JNZ business nomination application, was warranted and appropriate.”

28 In my opinion, Mr Huo can derive no assistance from the dictum cited above from Zhao. To adopt the analogous expression used by Sackville J, it is not implicit, from anything said by the Tribunal below, that it considered JNZ’s pending application for review was likely to succeed, or even had reasonable prospects of success. Incidentally, the concluding paragraphs in his Honour’s reasons for judgment in Zhao were as follows:

“33. The applicant complained that the MRT had failed to take into account that he had been engaged in business activities in Australia. This factual issue was not relevant to the decision made by the MRT. The question it had to decide was whether the applicant’s proposed activity had been the subject of an approved business nomination by Everglow. It correctly answered that question in the negative.

34. The applicant also said that Everglow has already signed a contract with an Australian company and that, if he were to be removed from Australia, Everglow would be prevented from discharging its obligations under the contract. Assuming this to be correct, it does not constitute a ground of review under s 476(1) of the Migration Act.”

29 Counsel for Mr Huo also submitted that the Tribunal failed to properly determine the application of Mr Huo placed before it, because the Tribunal confined itself to non-fulfilment of subclause 457.223(6)(b) (extracted in [16] above); see in that regard my discussion of subclause 457.223(6) in [16-17] above. It was submitted that the Tribunal’s view, to the effect that it was not necessary to consider the other criteria set out in subclause 457.223, also amounted to a failure by the Tribunal to review the decision before it, as required by s 348 of the Act ibid. Those other criteria, including “Sponsorship by an Australian business : key activities” (category 4), “Sponsorship by overseas businesses” (category 6) and “Independent executives” (category 7), involved several criteria which Mr Huo was required to meet, of which the employer having an “approved business nomination” (appearing in categories 4 and 6) was just one. It was further submitted that the Tribunal was not entitled to proceed on the basis that, because there was not an approved business nomination in place, it was not necessary for the Tribunal to consider the other criteria set out in subclause 457.223(6), and that in circumstances where the Tribunal was aware that Mr Huo had lodged an application for review of the JNZ sponsorship application, the Tribunal was not entitled to conclude that there was no approved business sponsor, given that “that application was pending for review”. In the result, Counsel for Mr Huo asserted that the Tribunal, in adopting the course which it did, misunderstood the nature of its jurisdiction, and consequently applied a wrong test, and additionally misconceived its duty and failed to apply itself to the real question to be decided, and in the result, those shortcomings constituted a constructive failure to exercise jurisdiction.

30 There is in my opinion no substance in those submissions made on behalf of Mr Huo. If a condition precedent to an affirmative finding in favour of an applicant for a business long stay visa is absent, and the applicant must therefore fail on that account, there is no reason in the law of administrative review, or otherwise in the Act itself, why the decision-maker must address the fulfilment or otherwise of any other or additional condition(s) precedent to approval. Moreover the fact merely that an application for review has been made to the Tribunal in relation to a DIMA decision cannot adversely affect the viability of the decision, so long as the decision remains in force and is not set aside by the Tribunal. As Senior Counsel for the Minister rightly pointed out, there was no requirement in law for the Tribunal to deal expressly with every aspect of the criteria for qualification to a visa, and to make findings in relation thereto, once it found that one critical element was absent.

31 I am therefore of the opinion that the application for review of Mr Huo made to this Court must fail. The Tribunal was entitled in the exercise of its discretion to withhold from awaiting the Tribunal’s decision on the JNZ application, assuming that the Act allows room for the application of conceivably relevant rules of natural justice additional to what the legislation already stipulates. As Senior Counsel for the Minister rightly contended, there was no error of law apparent or manifest in the conduct of the Tribunal below. It was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled. As Senior Counsel further pointed out, Mr Huo had been in Australia since 1997, and had had more than ample time to satisfy the regulatory criteria.

32 I find further that the Minister correctly contended that there was no jurisdictional error committed by the Tribunal below of the kind discussed in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105, and in particular, no failure of the Tribunal below to review the decision of the Minister’s delegate in turn to review the decision of the Minister on the merits, as discussed in Anthonypillai :it cannot be said with justification that the Tribunal failed to give proper, genuine and realistic consideration to his application.

33 These findings render unnecessary for determination the contention of Mr Huo concerning the effect of the privative clause the subject of s 474 of Part 8 of the Act (see [23(v)] above). The Minister accepted that despite the literal breadth of s 474, and its formulation as a clause ousting the jurisdiction of the Court, review may nevertheless take place in the limited circumstances described by Dixon J both in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 and in R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399-400. The Minister is in my opinion correct in his contention that in order to impugn a decision covered by a privative clause, such as that here involved (see [21-22] above), an application for review must establish one of three conditions. The first is that the constitutional power of the Parliament to define the powers of the decision-maker must have been exceeded. The second is that the exercise of power was unrelated to the subject matter of the legislation. The third is to show that the decision made was on its face beyond power, or was not a bona fide attempt to act in the course of the Tribunal’s authority. The Minister provided a comprehensive digest of High Court authorities that have more recently addressed the operation of privative clauses, particularly by reference to the third option which was accepted by the Minister as reflecting the terminology often associated with the establishment of jurisdictional error on the part of a tribunal, for instance, Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [29-31] (McHugh J), Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [20] (Gleeson CJ, Gummow, Kirby and Hayne JJ), Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ) and Re Refugee Review Tribunal; Ex parte HB (2001) 179 ALR 513 at [10] (Kirby J). The Minister further submitted that it is misleading to adopt statements in relation to jurisdictional error made in the context of applications for constitutional writs or prerogative relief, absent any privative clause, as Counsel for Mr Huo sought to do in the present context, and that in dealing with the effect of a privative clause, the question is much narrower, namely whether, despite the general terms of the privative clause, compliance with the obligation in question must have been intended to be an essential precondition to the exercise of power. In the present case, Senior Counsel for the Minister submitted that no error of law had been identified, let alone breach of a legal requirement that is essential for validity notwithstanding the privative clause, and that even if I was to form the view that the Tribunal made some error in the way in which it dealt with the present matter, which of course I have not, any such failure would not be one that went to the jurisdiction of the Tribunal. In my opinion, the foregoing submissions of Senior Counsel for the Minister are correct, and should be adopted.

34 I should further record that I was referred by both counsel to R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415 at 419, where Mason ACJ and Brennan J (as they then were) indicated that a privative clause in a statute will not prevent prohibition going to “inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal”. It was submitted on behalf of the Minister that in order for an obligation in any such statute to impose an inviolable limitation, the obligation must be such that, in the light of the scheme of the Act read as a whole, compliance therewith is indispensable in order for the Tribunal to exercise its jurisdiction. Put another way, it must be clear that Parliament intended that, notwithstanding the existence of the privative clause and its evident intention that Parliament did not intend that procedural obligations should affect the jurisdiction of the decision-maker, the particular obligation under focus was so important that the Tribunal could not act without compliance with the same. There is no obligation here identified by Mr Huo that could constitute any such inviolable limitation. The Minister is correct in his submission that any breach of obligation in this case on the part of the Tribunal below, which the Minister denies in any event, would fall into the category of procedural deficiency which Parliament has plainly intended should not go to the jurisdiction of this Court.

35 The principles traced by the Minister commencing from Hickman have been recently applied by this Court in the single justice decisions of Gyles J in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263, Tamberlin J in NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281, Hill J in Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311, Beaumont J in NABM v Minister for Immigration and Multicultural Affairs [2002] FCA 335, and Hill J again in Wang v Minister for Immigration and Multicultural Affairs [2002] FCA 477. The decision of Gyles J in NAAX specifically addressed the question whether purported breaches of natural justice are reviewable under the privative clause. By addressing what I have referred to as the “natural justice” argument of Mr Hou (ie by reason of alleged failure to afford procedural fairness), the passage in the decision of Gyles J in NAAX at [35], and the passages additionally of Hely J in Park v Minister for Immigration and Multicultural Affairs [2002] FCA 346at [15-16], are to the effect that there is no implied duty to afford procedural fairness, such as to diminish or qualify the operation of the privative clause regime. Those decisions in my view answer in the negative the contention of Counsel for Mr Huo in the present proceedings. The question of whether jurisdictional errors in particular are reviewable under s 474 was answered in the negative in detailed reasons for judgment delivered by Tamberlin J in NABE cited above.

36 It may be observed that the above cited decisions of recent origin made by judges of this Court in NAAX, NABE and NABL, which have restated the scope of the Hickman principles in the context of s 474 of the Act, have each been concerned with the refusal of a protection visa, which is of course not the visa at the centre of the present proceedings. However, the viability of those principles have also been applied in the context of an application for a business visa of the same kind as is the subject of the present proceedings: see the decision of Hill J in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 477.

37 I dismiss the application and order that the applicant Mr Huo pay the respondent’s costs of the proceedings.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 15 May 2002

Counsel for the Applicant:	C Salsone

Solicitor for the Applicant:	Coelho & Coelho Solicitors

Counsel for the Respondent:	J Basten QC and G T Johnson

Solicitor for the Respondent:	Blake Dawson Waldron

Date of Hearing:	15 February 2002

Date of Judgment:	15 May 2002

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