FEDERAL COURT OF AUSTRALIA

Korovata v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1041

IOWANI KOROVATA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 732 OF 2003

STONE J

30 SEPTEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The application for an extension of time within which to lodge a notice of appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application for an extension of time to file and serve a notice of appeal from a judgment of Federal Magistrate Barnes given on 23 May 2003.  The application for leave was filed five days after the last date for filing a notice of appeal.  At a directions hearing on 22 July 2003 the solicitor for the respondent indicated that her client did not object to the grant of leave on the basis of the delay of only five days but because, in the respondent’s view, the appeal is entirely without merit.  I therefore made directions for the preparation of the appeal on the basis that the application for the extension of time and argument on the appeal would be heard at the same time.  In anticipation that leave might be granted, and pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice has directed that the appeal be heard by a single judge. 

2                     On 1 March 1991 the applicant, a citizen of Fiji, entered Australia on a Subclass 421 (Sport) Visa issued under the Migration Act 1958 (Cth) (‘Migration Act’).  Subsequently, at least, seven consecutive visas of the same class were issued.  An application for another such visa was made on 12 October 1998 but was refused by a delegate of the respondent on 1 July 1999.  The delegate stated that the visa was not granted on the basis that the sponsorship application by the Yanco Wamoon Rugby League Football Club was refused by the Department of Immigration.  The Migration Review Tribunal (‘Tribunal’) affirmed the delegate’s decision on 22 June 2001.  That decision was set aside by a decision of this Court in Korovata v MIMIA [2001] FCA 1146 and, in accordance with the Court’s orders, the matter was remitted to the Tribunal for reconsideration. 

3                     On 23 September 2002 a differently constituted Tribunal again rejected the visa application because it was not satisfied as to the good financial status of the Yanco Wamoon Rugby League Football Club.  The applicant applied to this Court for judicial review and, by order of Lindgren J made on 30 November 2002, the proceeding was transferred to the Federal Magistrates Court where the application was dismissed on 23 May 2003. 

4                     It is an essential criterion for the grant of a Subclass 421 (Sport) Visa that the applicant’s sponsor has ‘good financial status in Australia’; see subparagraph 421.222(4)(c)(ii) of Schedule 2 to the Migration Regulations 1994.  Federal Magistrate Barnes summarised the Tribunal’s consideration of the sponsor’s financial status as follows:

‘The Tribunal considered the material provided by the sponsor, in particular the Accountant’s Statement dated 16 August 2002.  The Tribunal noted that the information in the Statement of Income and Expenditure was unaudited and that the Accountant’s Statement contained a blanket disclaimer.  While it purported to show that the sponsor had a gross trading profit for the period ended 30 June 2002, the contents of the previous statement (to 30 September 2001), which showed a trading loss and unfunded liabilities were said to raise serious doubts as to the accuracy of the statement of 30 June 2002 which had omitted the unfunded past liability without explanation.  Having regard to these findings and the fact that the accountant had not stated, as requested, that the sponsor was in a sound financial situation, the Tribunal concluded that the applicant had not satisfied it that the sponsor had a good financial status, as required by subparagraph 421.222(4)(c)(ii).  Accordingly, the Tribunal affirmed the decision to refuse the visa.’

5                     Before the learned Federal Magistrate the applicant claimed that the Tribunal had made a jurisdictional error in that it did not comply with s 359A of the Migration Act and had committed a breach of natural justice.  The claim under s 359A was, in essence, a claim that the applicant did not understand what information the Tribunal required and that he was not given any notification that the information was insufficient.  The applicant claimed that the Tribunal had told him that if it were not satisfied with the information provided, it would notify him so that he could provide any outstanding documentation.  In her reasons for decision Barnes FM referred to her examination of a transcript of the hearing before the Tribunal and stated that she was satisfied that no such promise was made.  She pointed out however that the Tribunal gave the applicant abundant opportunity at two hearings and by specific invitation in a letter of 12 February 2002 to provide evidence of the club’s financial position.

6                     Barnes FM found that the applicant’s claims were not made out for reasons set out in her Honour’s judgment at [14]-[28].  At [26]-[27] her Honour summarised her conclusions:

‘In this case I am satisfied that the Tribunal took all reasonable steps to bring to the attention of the applicant the critical issue in this case.  The Tribunal made plain in a number of ways, through the procedures and in the second hearing, the importance of the issue and the concerns it had.  In particular, I am satisfied that the Tribunal made it clear that it had concerns about the financial strength of the club and, in effect, put this issue “in the ring”. 

On balance then, I am satisfied that there has been no breach of section 359A.  It has not been submitted nor am I satisfied that there is a breach of any other provision of the Act.  Nor does the material before me establish any lack of procedural fairness constituting a denial of natural justice.’

7                     I do not propose to discuss those reasons in any further detail but note that, in my opinion, they are cogent and without error. 

8                     In support of his application for an extension of time to file a notice of appeal the applicant referred to the grounds of appeal on which he would rely should the extension be granted.  Those grounds are ‘denial of procedure (sic) fairness’, ‘error of law committed by the delegate’ and ‘denial justice’.  Though somewhat differently expressed, the substance of the applicant’s complaints is the same as was raised before Barnes FM.  In relation to the financial status of the club, those complaints take issue with the Tribunal’s decision on the merits.  The Tribunal’s decision on this matter is a decision of fact that was open to the Tribunal.  This Court is not entitled to interfere with that decision.

9                     In relation to the issue of procedural fairness I agree with Barnes FM that the Tribunal took all reasonable steps to bring the relevant issues to the attention of the applicant.  I find no error in her Honour’s reasons.  For these reasons I am satisfied that were an extension of time to be granted the appeal would have no prospect of success.  I therefore decline to grant the extension of time in which to lodge a notice of appeal.  The application is therefore dismissed with costs. 

Associate:

Dated:              30 September 2003