FEDERAL COURT OF AUSTRALIA

Brannan v Minister for Immigration and Citizenship [2007] FCA 1900

PRACTICE AND PROCEDURE – non-attendance by applicant at hearing of the appeal – appeal dismissed pursuant to s 25(2B)(bb)(ii) – application to set aside order – whether Court has power to make such an order – where order made dismissing the appeal has been formally entered – where no prospects of succeeding on the appeal – application dismissed.

MIGRATION – notification of delegate’s decision returned to sender – where applicant alleged notification not received – whether there was evidence before the Tribunal that the Department complied with s 494B(4) – need not be decided as appeal would have been dismissed on alternative ground.

Federal Court of Australia Act 1976 (Cth) s 25(2B)

Migration Act 1958 (Cth) ss 338(2)(d), 494B(4)

Migration Regulations 1994 (Cth) Schedule 2, cl 457.223

SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 followed

THOMAS BRANNAN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

NSD 1771 OF 2007

LANDER J

4 DECEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The applicant’s application by notice of motion dated 14 November 2007 be dismissed.

2.                  The applicant pay the first respondent’s costs of the application.

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 to set aside an order that an appeal to this Court be dismissed for the failure of the applicant to attend the hearing relating to the appeal.  This matter was listed before me for hearing on Wednesday, 14 November 2007 at 10.15am.  When the matter was called there was no appearance by the applicant.  The applicant was called in the precincts of the Court.  The respondent applied to have the appeal dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).  I made an order dismissing the appeal and ordered that the applicant pay the respondent’s costs.

2                     The applicant attended the Court later that morning.  On the same day and before the order was formally entered, he filed a notice of motion seeking an order that the order dismissing his appeal be set aside and for the further hearing of the appeal.  He said in his affidavit filed in support of the appeal:

Today I was late for Court on the grounds that I am sick today 14-11-07.  I was 15 mins late today.  I have been present and punctual on all other Court occasions previously and waited for 3 hours last time I was here.

3                     I have power to set aside an order made under s 25(2B)(bb): s 25(2B)(bc).  That power may be exercised even if the order dismissing the appeal has been formally entered: SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61.

4                     It seems to me that it would be appropriate to set aside the order made on Wednesday, 14 November if I thought the applicant had good prospects of succeeding on the appeal.

5                     The applicant seeks to appeal from an order of a Federal Magistrate made on 13 August 2007 dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) made on 2 January 2007 and handed down on 5 January 2007.

6                     The Tribunal had concluded that the decision of a delegate of the Minister to refuse to grant a Temporary Business Entry (Class UC) (Subclass 457 Business (Long Stay)) visa was not a reviewable decision pursuant to the Migration Act 1958 (Cth) (the Act) and therefore it had no jurisdiction to conduct a review of that decision.

7                     The Federal Magistrate also concluded that the Tribunal lacked jurisdiction to entertain the application for review.

8                     The applicant was born on 9 February 1973 and is a citizen of the United Kingdom.  On 17 November 2004 he applied for a Temporary Business Entry (Class UC) visa on the basis that he was sponsored by an Australian business, CS & K Transport Pty Ltd.  On 18 January 2005 a delegate of the first respondent refused that application on the grounds that the sponsoring business nominated by the applicant was not approved as a business sponsor.

9                     The prescribed criteria for a Temporary Business Entry (Class UC) (Subclass 457 Business (Long Stay)) visa are set out in clause 457 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).  One of the criteria in clause 457.223 is that the applicant meets the requirements of subclauses (2), (3), (4), (5), (7A), (8), (9) or (10).

10                  The applicant relied upon meeting the requirements of subclause (4) in that he claimed that he was sponsored by an Australian business, CS & K Transport Pty Ltd.

11                  His application was refused because CS & K Transport Pty Ltd’s application for approval as a business sponsor had been refused.  He therefore did not meet the requirements of clause 457.223.

12                  On 18 January 2005 a letter was sent by registered post by the delegate to the applicant at his residential address, as notified in the application for the visa, enclosing the delegate’s reasons for refusing the application dated 18 January 2005.

13                  On 24 January 2005 the letter was returned to the Department with a notation “refused”.  On 25 January 2005 the delegate sent the same letter, again by registered post,  to the applicant care of his employer to the address of the applicant’s employer.  Again attached to this letter were the delegate’s reasons for refusing the application.  In this case, the refusal was dated 25 January 2005.  On 7 March 2005 that letter was returned to the Department but without notation.

14                  On 12 July 2006 the applicant applied to the Tribunal for a review of the delegate’s decision claiming that he had not received the decision refusing the grant of the visa until 11 July 2006.  He also asserted that his employer had told him that he would manage the application for a visa and attend to any correspondence with the Department.

15                  The Tribunal has only that jurisdiction to review the decision of a delegate of the Minister given to the Tribunal by the Act.  Section 348 of the Act provides that the Tribunal only has jurisdiction to review an MRT-reviewable decision if an application was properly made under s 347.

16                  Section 338 of the Act and reg 4.02 of the Regulationsdefine the various decisions that are MRT-reviewable decisions.  A decision to refuse the grant of a Temporary Business Entry (Class UC) visa may be an MRT-reviewable decision under s 338(2)(d) and reg 4.02(1A) where the application is made within the migration zone and under s 338(9) and reg 4.02(4)(l) where an application is made by an applicant outside the migration zone.  If, as was the case here, the applicant was within the migration zone, a decision is an MRT-reviewable decision if:

(i)         the applicant is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made, or

(ii)        an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending: s 338(2)(d)(i) and (ii) and reg 4.02(1A).

17                  Not only must a decision be an MRT-reviewable decision before the Tribunal has jurisdiction to review the decision, but the application to the Tribunal must be made within the prescribed period pursuant to s 347(1)(b) and by a person with standing to apply: s 347(2).

18                  The Tribunal concluded that it did not have jurisdiction for two reasons.  First, the decision sought to be reviewed was not an MRT-reviewable decision in that the applicant was not sponsored by an approved sponsor and the proposed sponsor had not lodged an application for review with the Tribunal at the time the applicant’s application for review to the Tribunal was made.  In that regard, the Tribunal found that it did not have jurisdiction because the criteria in s 338(2)(d) had not been made out.  Moreover, it found that the applicant had not, as was clearly the case, made his application for review within the time stipulated in s 347(1)(b)(i) and reg 4.10(1)(a).

19                  The Tribunal concluded that there had been compliance with s 494B(4) of the Act, in that the delegate’s decision notification letter dated on 18 January 2005 had been dispatched within three working days of the date of the letter.  It followed that the applicant had not lodged his application for review within the time prescribed and that the Tribunal had no jurisdiction for that reason also.  The Tribunal had access to the Departmental file relating to the applicant and was able to view the original of all the documents, including the originals of both envelopes returned to the Department.

20                  The applicant applied to the Federal Magistrates Court for judicial review seeking to challenge the Tribunal’s conclusion that it did not have jurisdiction for the two reasons upon which the Tribunal relied.

21                  The Federal Magistrate addressed the second reason first and concluded at [33]:

In this case, the delegate sent copies of the decision to the Applicant in two separate documents, dated 18^th and 25^th January 2005.  There is, however, no evidence before the Court that either document was dispatched by prepaid post within 3 working days of its date.  There is, then, no proof that the requirement of s 494B(4)(a) was met.  Hence, the Minister cannot rely on s 494C(4) of the Act to show the date the Applicant was notified of the delegate’s decision.

22                  It is unclear from the documents on appeal whether the documents support the Tribunal’s finding or the Federal Magistrate’s conclusion in relation to whether s 494B(4) was complied with by the delegate.

23                  It may be that there was evidence before the Tribunal that the Department complied with its obligations under s 494B(4) of the Act in that the delegate’s decision notification letter had been despatched within three working days of the date of the letter.  The postmark on the envelope would show whether or not that had occurred.  The papers provided to me do not allow me to read the postmark.  I am not in a position to say the Federal Magistrate was wrong.  In any event, the first respondent does not rely on that ground to uphold the Tribunal’s decision.  No notice of contention has been filed.

24                  However, that does not assist the applicant because the Tribunal found that it lacked jurisdiction for two reasons and the Federal Magistrate agreed with the Tribunal in relation to that other reason.  The Federal Magistrate agreed with the Tribunal that the Tribunal did not have jurisdiction because at the time the application for review was made the applicant was neither sponsored by an approved sponsor nor had any application been made by the sponsor for the review of the decision not to approve the sponsor.

25                  Section 338(2)(d) defines MRT-reviewable decisions which is referred to in [16] above.

26                  The applicant was not sponsored by an approved sponsor at the time the application to review the decision was made.  Nor had an application been made for review of a decision not to approve the sponsor been made.

27                  I agree with the Federal Magistrate and the Tribunal that the Tribunal did not have jurisdiction on the ground that the applicant was not sponsored by an approved sponsor or the proposed sponsor had not lodged an application for review with the Tribunal at the time the applicant’s application for a review was made.  For that reason alone, the appeal to this Court could not succeed.

28                  When I dismissed the appeal on Wednesday, 14 November 2007 I thought that the notice of appeal did not raise grounds upon which the applicant would be likely to succeed.  Having heard the applicant and the respondent, I am firmly of that view.  In those circumstances, I dismiss the application to set aside the order dismissing the appeal.

29                  I make it clear, however, that if I had allowed the application to set aside the order dismissing the appeal I would have dismissed the appeal for the reasons mentioned above.

Associate:

Dated:         4 December 2007