FEDERAL COURT OF AUSTRALIA

Sam v Minister for Immigration and Citizenship [2007] FCA 1976

 MIGRATION – Review of decision by Federal Magistrates Court – whether Federal Magistrate erred in finding that an applicant for a 457 visa cannot change sponsors following approval

ELIAS HANNA SAM, HELENE SAM, MATHILDA SAM, RAYMONA SAM, RAYMOND SAM AND YOUSSEF SAM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

NSD 1596 OF 2007

FLICK J

15 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The First Appellant is to pay the costs of the First Respondent fixed at $2,000. 

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

REASONS FOR JUDGMENT

(Revised judgment)

1                     This is an appeal by six Appellants from a decision of Emmett FM delivered on 24 July 2007. 

2                     Her Honour dismissed an application for constitutional writs in respect of a decision of the Migration Review Tribunal on 13 October 2006. The Tribunal there affirmed a decision of a delegate of the First Respondent refusing to grant an application for a temporary Business Entry (Class UC) visa. 

3                     The difficulty confronting the First Appellant before the Tribunal was the fact that the “sponsor” nominated by him for his visa “went bankrupt”.  He sought to have another sponsor substituted.  The Tribunal concluded that cl 457.223(4)(a) of Sch 2 to the Migration Regulations 1994 (Cth) did not permit any change in the identity of the sponsor nominated.  That was also the decision of the Federal Magistrate. 

GROUNDS OF APPEAL

4                     The fate of the five remaining Appellants depend on the success of the First Appellant.  The Notice of Appeal as filed on 13 August 2007 set the following grounds of appeal:

Her Honour prevented me from addressing the court and explaining my circumstances as I have prepared a four page statement in my own language and was not able to do so. 

The Migration Review Tribunal also failed to give me the opportunity to explain what happened to me since my arrival in Australia.  I will provide copy of the transcript. 

The interpreter at the Court, an Iraqi national, was not competent.

The Tribunal’s purported exercise of power is affected as it exceeded its authority and power and erred in law by reaching a mistaken conclusion and ignoring important request put to it. 

5                     At the outset of the hearing of this appeal the First Appellant had, via his interpreter, a statement read to the Court.  That statement, it is understood, was the “four page statement” referred to in the Notice of Appeal.  

6                     In addition a community volunteer, Mr Laba-Sarkis JP, sought the indulgence of the Court to make submissions on the Appellant’s behalf.  That course was not opposed by counsel for the First Respondent.  A like indulgence was extended in SZFCX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 394 at [16], 90 ALD 634 at 646–6. Mr Laba-Sarkis essentially made two submissions:

(a)      that the Court should exercise compassion towards the Appellant; and

(b)     that it was sufficient for the First Appellant to satisfy cl 457.223(4)(a). 

The latter submission was that the status of the sponsor, as at the date of the decision, was irrelevant. 

7                     None of the grounds of appeal in the Notice of Appeal as further elaborated by Mr Laba-Sarkis have merit and each should be rejected. 

Procedural unfairness

8                     A contention that a denial of procedural fairness has occurred must establish at the very least the facts to be relied upon. 

9                     In the present appeal there has been no attempt to establish by way of admissible evidence what had actually occurred before Emmett FM.  A conclusion that her Honour denied the Appellants procedural fairness should not be lightly made. This is especially so in circumstances where it is apparent that her Honour extended what would appear to be a more than adequate opportunity to the Appellants to make out their case.  Emmett FM’s reasons thus state in part:

[24] All the applicants appeared at the hearing before this court except for Youssef Sam.  The Applicant had the assistance of an interpreter and informed the Court that he represented all the applicants.  However, during the hearing, both Raymond Sam and Raymona Sam made submissions to the Court. 

[25] The Applicant, after consultation with his family, confirmed that he relied upon the grounds in the application filed on 7 November 2006. …

Those reasons only serve to emphasise the informality of the proceeding being conducted by her Honour and the steps taken to ensure that the Applicants were given every opportunity to advance their case in such a manner as they saw fit.  Not surprisingly there was no attempt by her Honour to limit the Applicants to making submissions through only one particular nominated person, and no attempt to restrict consultation between the Applicants in order to ensure the basis upon which the case was to be presented. 

10                  Even though it has been concluded that Emmett FM did not deny the now Appellants any procedural unfairness this Court has had the benefit of the statement to which reference has been made in the Notice of Appeal.  That statement, it is considered, does not advance for resolution the issues then before the Federal Magistrates Court.  Whether or not the statement was made or prevented from being made to Emmett FM need not be resolved. 

11                  No attempt has been made to prove the “incompetence” of the interpreter.  Nothing is known as to the qualifications of the interpreter and nothing is known as to the basis upon which it is contended that the interpreter did not properly discharge his functions.

12                  The grounds of appeal seeking to allege a denial of procedural fairness in the Federal Magistrates Court are rejected. 

The proceedings before the Migration Review Tribunal

13                  No attempt has been made to establish the events before the Migration Review Tribunal.

14                  What is intended to be conveyed by the phrase “what happened to me since my arrival in Australia” was not elucidated in at the hearing of this appeal.  The relevance of any such explanation as to the issues before the Tribunal is again elusive.  Similarly, the manner in which the Tribunal is said to have “exceeded its authority and power and erred in law” is left unexplained. 

15                  The decision of the Tribunal has, however, been reviewed.  No error or excesses of authority or power is apparent.

Clause 457.223(4)(a)

16                  Although not expressly referred to in the Notice of Appeal, consideration has been given to the argument put forward in Court by Mr Laba-Sakis that the status of the sponsor at the time of the decision is irrelevant.

17                  Clause 457.223(4) provides as follows:

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

(b) the employer is:

(i) either:

(A) a pre-qualified business sponsor; or

(B) a standard business sponsor approved under regulation 1.20D as in force before, on or after 1 July 2003; and

(ii) the employer mentioned in subparagraph 1223A(3)(d)(i); and

(c) the applicant is nominated, in accordance with approved form 1068, 1196 or 1196 (internet), in relation to the activity by the employer; and

(d) the applicant has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed; and

(e) the applicant demonstrates, if so required by the Minister, that he or she has the skills necessary to perform the activity; and

...

18                  As to the construction of cl 457.223(4)(a), the Emmett FM concluded that:

[27] [The First Appellant’s contention] appears to be a complaint that the Tribunal failed to give the Applicant another opportunity to have another sponsor approved. This complaint is misconceived in that cl.457.223(4) has the effect of requiring the sponsor at the time of the Tribunal’s decision to be the same sponsor as in the Applicant’s application for a 457 visa lodged on 15 October 2003. The Tribunal correctly found that the Applicant was not entitled to have another sponsor to replace the original sponsor of the Applicant…

No error is discerned in her Honour’s construction of that clause. It is not sufficient for the Appellant to have satisfied cl 457.223(4)(a) alone as the word “and” makes clear.

ORDERS

19                  The orders of the Court are that:

1.      The appeal be dismissed.

2.      The First Appellant is to pay the costs of the First Respondent fixed at $2,000.

Associate:

Dated:         5 December 2007