FEDERAL COURT OF AUSTRALIA

Hu v Minister for Immigration and Citizenship [2009] FCA 1288

MIGRATION — application for occupational trainee visa — refusal to accept nomination — prescribed criteria not satisfied — no jurisdiction to review refusal to accept nomination

PRACTICE AND PROCEDURE — failure of Appellant to appear — power to dismiss appeal — power to proceed to hear appeal in Appellant’s absence

Held: Appeal dismissed

Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii), (bc)

Migration Act 1958 (Cth) ss 65, 140GB, 338(9)

Federal Court Rules O 52 r 38A, O 62 r 4(2)(c)

Migration Amendment Regulations 2009 (No 5) (Cth) reg 3(2)(f)(xi)

Migration Regulations 1994 (Cth) reg 4.02(4)(d), Sch 2 cl 442

Hu v Minister for Immigration and Citizenship (No 3) [2009] FMCA 629, affirmed

Suh v Minister for Immigration and Citizenship [2009] FCAFC 42, 175 FCR 515, followed

SZDNF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 378, cited

Yu v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 117, referred to

JOO SUNG HU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 754 of 2009

FLICK J

12 November 2009

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The Appeal is dismissed.

2.                  The First Respondent is to notify the Appellant of the order dismissing his appeal and the terms of O 52 r 38A(2) of the Federal Court Rules.

3.                  The Appellant is to pay the costs of the First Respondent fixed in the sum of $1,804.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of orders can be located using eSearch on the Court’s website.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     On 13 September 2007 the present Appellant applied to the Department of Immigration and Citizenship for a Class TH Educational (Temporary) Subclass 442 (Occupational Trainee) visa. The form of nomination accompanying that application identified Sarah’s Secret Cosmetics Co as the entity nominating the applicant.

2                     On 15 November 2007 a delegate of the Minister was not satisfied that the nomination met the criteria as then set forth in cll 442.223 and 442.224 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”). The delegate was thus unable to approve the nomination. Further information had previously been sought from the nominating company but no information was provided. The Appellant claimed, however, that the prior letter forwarded by way of email seeking further information had not been received. The nomination was reconsidered. Again, further information was sought. Again, no further information was provided. On 17 December 2007 a delegate again refused to approve the nomination. The “Decision Record” of the delegate concludes as follows:

5. ASSESSMENT SUMMARY

In view of the above, I am not satisfied that the nomination meets the criteria of Migration Regulation 442.223. Since all relevant regulations and policy must be met before a nomination can be approved, I am unable to approve this nomination.

6. DECISION

The requirement of Regulation 442.223 has not been satisfied. Therefore I refuse the nomination of Sarah’s Secret Cosmetics Co in relation to occupational training for Hu, Joo Sung.

Also on 17 December 2007 the same delegate made a separate decision to refuse the application for the visa sought, namely the Class TH Educational (Temporary) subclass 442 (Occupational Trainee) visa. In refusing the visa the delegate concluded that the now Appellant did not satisfy cl 442.222(1) of Sch 2 of the Migration Regulations and further concluded that the now Appellant “does not satisfy Migration Regulation 442.224”. As a result, the delegate concluded that the now Appellant could not “satisfy the criteria of subclass 442”. Consideration was given to other classes of visa — including a Foreign Government Agency visa (subclass 415), an Educational visa (subclass 418) and a Visiting Academic visa (subclass 419). But it was concluded that there was no information available to indicate any of these visas were applicable to the now Appellant. The delegate decided that “the applicant … cannot meet the prescribed criteria for any subclass of visa within visa class TH” and refused the visa sought. All of those conclusions were, obviously enough, based upon those clauses of Sch 2 as they then were.

3                     On 19 December 2007 an application was filed with the Migration Review Tribunal challenging the decision to refuse to grant the visa under s 65 of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal affirmed the delegate’s decision on 28 November 2008. The Federal Magistrates Court dismissed an application seeking review of the Tribunal’s decision on 2 July 2009: Hu v Minister for Immigration and Citizenship (No 3) [2009] FMCA 629.

4                     On 23 July 2009 a Notice of Appeal was filed in this Court.

5                     When the appeal was called for hearing there was no attendance on behalf of the Appellant. Notice of the date and place of hearing had been given to the Appellant. The solicitor for the First Respondent had also reminded the Appellant of the date and place for hearing when forwarding him a copy of the Minister’s Outline of Written Submissions. Power is conferred upon the Court, in such circumstances, to dismiss the appeal: Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii). On occasions that power is in fact exercised: e.g. Yu v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 117. Power is also conferred upon the Court by s 25(2B)(bc) to vary an order made pursuant to s 25(2B)(bb). When an appeal is dismissed for failure to attend, it may be appropriate for an Appellant to be advised as to the terms of s 25(2B)(bc): e.g. SZDNF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 378. Power is also conferred upon the Court by O 52 r 38A(1)(d) of the Federal Court Rules to proceed to hear an appeal in the absence of a party. Power is likewise conferred upon the Court by O 52 r 38A(2)(a) to set aside or vary an order made pursuant to O 52 r 38A(1)(d).

6                     Rather than dismissing the appeal for any failure on the part of the Appellant, it is considered that the preferable course in the present case is to proceed to hear and resolve the appeal in his absence. The issues involved are within a narrow compass.

7                     The appeal is to be dismissed.

The Migration Act and Regulations

8                     Section 65 of the Migration Act confers power to grant a visa in the circumstances there set forth. The section provides as follows:

Decision to grant or refuse to grant visa

(1)     After considering a valid application for a visa, the Minister:

(a)     if satisfied that:

(i)      the health criteria for it (if any) have been satisfied; and

(ii)     the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)   any amount of visa application charge payable in relation to the application has been paid;

         is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

(2)     To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).

9                     At the time when the applications were being considered, the “criteria … prescribed …” were those set forth as follows in cll 442.222, 442.223 and 442.224 of Sch 2 to the Migration Regulations:

442.22      Criteria to be satisfied at time of decision

…

442.222      (1) Except in the case of an application made in relation to occupational training to be provided by the Commonwealth, a nomination in respect of the occupational training has been lodged and has been approved by the Minister.

(2) The reference in subclause (1) to occupational training to be provided by the Commonwealth includes occupational training to be provided by:

(a)     a body corporate incorporated for a public purpose by an Act or regulations made under an Act; or

(b)    an authority or body, not being a body corporate, established for a public purpose by, or under, an Act or regulations made under an Act.

(3) The nomination mentioned in subclause (1) in respect of an applicant must include a declaration that the applicant will be engaged or employed under Australian Industrial Relations law and relevant Commonwealth, State or Territory awards and conditions for the industry in which the applicant will undertake occupational training.

442.223      The Minister is satisfied:

(a)     that the occupational training that is proposed:

(i)      is workplace-based; and

(ii)     will give the applicant additional or enhanced skills that the applicant will be able to utilise in the applicant’s employment; and

(b)    that occupational opportunities available to Australian citizens or permanent residents of Australia will not be adversely affected if the visa is granted.

442.224      The Minister is satisfied that the applicant is a genuine applicant for entry to Australia as an occupational trainee.

10                  Those decisions that were reviewable by the Migration Review Tribunal are set forth in s 338 of the Migration Act. Decisions to refuse to accept nominations were not then among those set forth in s 338. Nor were they then “prescribed” as reviewable decisions pursuant to s 338(9).

11                  The provisions relevant to visas of the present kind, it should be noted, have since been the subject of amendment. Section 140GB of the Migration Act, a provision which was introduced by an amendment taking effect in 2009, now imposes a requirement upon the Minister to approve a nomination if “prescribed criteria are satisfied”. And reg 4.02(4)(d) of the Migration Regulations, again a provision inserted by way of an amendment taking effect in 2009, now provides that for the purposes of s 338 a decision refusing to approve a nomination under s 140GB(2) is a decision reviewable by the Migration Review Tribunal. But these provisions cannot be called in aid by the present Appellant as they only apply to applications for visas made on or after 14 September 2009: Migration Amendment Regulations 2009 (No 5) (Cth) reg 3(2)(f)(xi).

The Non–Reviewability of Nomination Decisions

12                  The Migration Review Tribunal’s inability to review the delegate’s decision to refuse to approve the nomination in the present case is the consequence of such decisions neither being set forth in s 338 nor “prescribed” pursuant to s 338(9) at the relevant time.

13                  Prior to the amendments this consequence, it has been recognised, may have occasioned “injustice”: Suh v Minister for Immigration and Citizenship (“Suh”) [2009] FCAFC 42 at [17], 175 FCR 515 at 519. Spender, Buchanan and Perram JJ there referred to the procedures prescribed “for a range of other nominations and sponsorships” and continued:

[10] The contrast with the operation of cl 442 of Sch 2 is stark. There is no set of criteria identified for assessing a nomination for the purpose of occupational training. There is no specific requirement that such a nomination be approved or refused, although cl 442.222(1) contemplates both lodgment and approval as a precondition to a successful application for a subclass 442 visa. No right of review is given. It is tempting to regard that as a case of simple oversight or inattention. The consequences are serious as the present case demonstrates.

Their Honours concluded:

[14] However, a decision not to approve a nomination made for the purpose of cl 442.222(1) is not reviewable. Section 338 of the Act specifies what decisions are reviewable by the MRT including, under s 338(9), decisions which are prescribed for that purpose. A decision not to approve a nomination for the purpose of cl 442.222(1) is neither identified by s 338 nor elsewhere prescribed for that purpose. There was, accordingly, no right of review available against that decision …

In respect to the application there being made, as in the present case, to seek review of the decision of the Tribunal to refuse the visa, their Honours ultimately concluded:

[26] … There is no doubt that the appellants had a right to seek review of the delegate’s decision to refuse a visa. The MRT had authority to deal with the merits of the visa applications. In that review, however, the visa applications suffered from a fatal defect that was beyond the reach of the MRT. The first appellant was required by cl 442.221 to satisfy each of the requirements in cl 442.222 to cl 442.229. That was not possible. There was no approved nomination as required by cl 442.222 and that was a matter with which the MRT could not deal. The decision to refuse the nomination was not reviewable. The MRT therefore had no choice but to affirm the subsidiary decision of the delegate to refuse the visa applications. That decision had been effectively shielded from any form of merits review by the MRT. It is therefore not open to find that the MRT committed any jurisdictional error.

14                  The potential for “injustice” may now have been addressed — at least in respect to applications made on or after 14 September 2009 — by the recent amendments to both the Act and the Regulations. But it is the Act and the Regulations prior to the 2009 amendments which continue to apply to the present Appellant.

The Grounds of Appeal

15                  The Grounds of Appeal as set forth in the Notice of Appeal are as follows:

1.       The nomination decision must be reviewed at the Tribunal as a part of reviewable decision of the visa application if the nominator does not have a review right separately.

2.       The applicant lost a fair chance of presenting his case effectively as the nominator does not have a review right.

3.       The occupational trainee nominator also must have a review right as all other nominators have their review rights against the decisions on their applications.

16                  However the Grounds may be expressed, the fundamental difficulty confronting the Appellant is the simple fact that the Tribunal’s decision was founded upon the delegate’s refusal to accept the nomination. And that decision of the delegate was not then reviewable by the Tribunal. Given the terms of s 338, the fact that such decisions were not then “prescribed” pursuant to s 338(9) and the decision of the Full Court in Suh, the dismissal of an application seeking review of the Tribunal’s decision was inevitable.

17                  Although it may readily be appreciated why the Appellant seeks to have the refusal to accept the nomination included as part of the review of what Ground 1 refers to as a “reviewable decision”, such a contention is contrary to the decision in Suh.

18                  There is some ambiguity in what is intended to be conveyed by Ground 2. If it is but a different way of expressing Ground 1, it adds nothing to the appeal. If, however, Ground 2 is intended to assert the loss of an opportunity to advance submissions before the Tribunal, this was not a ground agitated before the Federal Magistrate. Given the conclusion that a decision to refuse a nomination was not then reviewable by the Tribunal, it is difficult to envisage what the now Appellant (or anyone else) could have said which would have changed the decision reached. Moreover, it is not at all self-evident that the now Appellant has been denied “a fair chance of presenting his case”. The now Appellant was invited to attend the hearing before the Tribunal and did in fact attend a hearing on 21 November 2008. Why that hearing did not present the “fair chance” to which Ground 2 may be directed remains unexplained.

19                  Leave to raise Ground 2 is thus refused and, even if leave were granted, it would have been rejected.

20                  Albeit perhaps not a matter of immediate relevance to the decision of the Tribunal, it may be further observed that there may be no “injustice” occasioned to the Appellant in the present case. On two occasions further information had been sought by the delegate from Sarah’s Secret Cosmetics Co as the nominator. The principal of that entity was the Appellant’s wife. On two occasions no further information was forthcoming. The delegate of the Minister also had reservations as to the genuineness of the application being advanced. The delegate thus observed:

Based on Mr Hu’s immigration history and the absence of any further information from him in relation to his current visa application, I am not satisfied that the nominee is a genuine applicant for an Occupational Trainee visa.

Whether there was “injustice” need not be resolved. But the presence of “injustice” should not be assumed.

21                  Ground 3 is not a matter which can be addressed by this Court. To the extent that it has not been addressed by the recent amendments, it is a matter which should be directed to the legislature. Again, it is in any event not a ground advanced before the Federal Magistrate and leave to raise it in this Court is refused. It is without legal merit. Grounds 2 and 3 are perhaps different attempts to raise the same contention.

Conclusions

22                  The appeal is to be dismissed.

23                  There is no reason why the Appellant should not pay the costs of the First Respondent. The First Respondent seeks an order pursuant to O 62 r 4(2)(c) of the Federal Court Rules that costs be fixed in the sum of $1,804. An Affidavit filed in support of the making of such an order was filed. It is appropriate that such an order be made.

ORDERS

24                  The Orders of the Court are:

1.                  The Appeal is dismissed.

2.                  The First Respondent is to notify the Appellant of the order dismissing his appeal and the terms of O 52 r 38A(2) of the Federal Court Rules.

3.                  The Appellant is to pay the costs of the First Respondent fixed in the sum of $1,804.

Associate:

Dated:         12 November 2009