Egberime v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application under section 39B of the Judiciary Act 1903 (Cth) to have declared invalid a decision of the Migration Review Tribunal (the Tribunal) made on 25 June 2002 under the Migration Act 1958 (Cth) (the Act). The Tribunal affirmed a decision of a delegate of the respondent made on 27 February 2001 not to grant the applicant a Distinguished Talent (Residence) Class BX Subclass 858 visa (the visa) for which he had applied on 22 November 2000. 2 The applicant is a national of Nigeria, born on 10 November 1978. He is a single man. He entered Australia on 15 August 2000 as a sparring partner for the Nigerian Olympic Boxing team under a Cultural/Social (Temporary) (Class TE) Subclass 421 Sport visa. That visa expired on 31 December 2000. Before its expiration, he applied for the visa. Since the decision of the Tribunal, he has been granted a bridging visa pending the hearing and determination of this application. 3 To be eligible to be granted the visa it was necessary for the delegate of the respondent and, on review, the Tribunal to be satisfied, inter alia, that at the time of the application the applicant met the requirements of cl 858.212(3) of Schedule 2 to the Migration Regulations. It relevantly provided: "The applicant meets the requirements of this subclause if the applicant: (a) has a record of outstanding achievement, and is still prominent, in the arts or sport; and (b) produces a nomination testifying to the applicant's achievement and standing in the arts or sport from: (i) an Australian citizen; or (ii) an Australian permanent resident; or (iii) an eligible New Zealand citizen; or (iv) an Australian organisation; having a national reputation in relation to the applicant's field of the arts or sport." 4 To satisfy the subclause, the application was supported by the nomination of Nigel Austin Taylor (Mr Taylor) and his migration agent provided reasonably extensive documentary confirmation of his boxing achievements up to the time of his application, together with statutory declarations of the applicant and of Mr Taylor. As counsel for the applicant pointed out, the summary of his boxing achievements up to the time of the application did not include his most recent and first professional bout in Australia. His application was also supported by testimonials of an experienced boxing promoter and trainer, and by a letter from the president of Boxing SA Inc. I do not need to refer to the detail of that material. The applicant further had the assistance of a migration agent. 5 The delegate of the respondent was not satisfied that the applicant satisfied either of the requirements of subcl (3)(a) or (b) of cl 848.212 of the Schedule to the Regulations. 6 When the applicant applied to the Tribunal for review of the delegate's decision, he again had the assistance of the same migration agent. The application to the Tribunal identified the address of his migration agent as his address for service of documents. The application also contained detail of the applicant's residential address, being an address at Windsor Gardens in South Australia. The Tribunal was informed in the application to the Tribunal that further evidence would be obtained to persuade it that the applicant satisfied the criteria for the grant of the visa and that it was expected that it would take some three months to obtain and provide that information to the Tribunal. The application to the Tribunal does not appear to have progressed rapidly. 7 On 19 December 2001, Mary Lindsay, a migration agent communicated by facsimile to the Tribunal that she was acting as agent for a Mr Kevin Dinan, "the sponsor of the applicant" (and others) and provided to the Tribunal a copy of his authorisation. On 7 February 2002 she informed the Tribunal by facsimile that she had arranged for further evidence from members of the national and international boxing authorities to be provided in support of the application of the applicant and of others and that that evidence should be received within the next two weeks. 8 So far as the material before the Court discloses, the next event was a letter from the Tribunal of 30 April 2002 under s 359(2) of the Act. The Tribunal invited the applicant to provide certain additional information to it, namely further evidence outlining his "outstanding achievements" as an athlete in the field of boxing, as required by cl 858.212 of the Schedule to the Regulations. The letter requested a response within 28 days of the date of notification of the invitation. It pointed out that notification of the letter of request would be deemed to have been given seven working days after the date of the letter. It indicated the applicant might request additional time to provide the information sought. It highlighted the following passage: "If the Tribunal does not receive the requested information within the period allowed, it may, under s 359C of the Act, make a decision on the review without taking any further action to obtain the information. In addition, you will not be entitled to appear before the Tribunal." 9 That letter was sent to the applicant care of Ms Lindsay, that is the migration agent acting for Mr Dinan, and by separate letter to the applicant at the residential address contained in the application to the Tribunal. It was not sent to his address for service care of his migration agent. The Tribunal appears to have assumed Ms Lindsay had become his migration agent. 10 The notice under s 359(2) of the Act did not elicit a response from the applicant. There is a note on the Tribunal file dated 17 June 2002 which contains an email from Ms Lindsay as agent for Mr Taylor confirmed Mr Taylor had withdrawn his nomination of the applicant's application for the visa, and that "RA" would not be responding to the request made under s 359(2) of the Act. The reference to the "RA" was taken by the Tribunal as a reference to the applicant. 11 The Tribunal then proceeded to give its decision. It did not give to the applicant any notice inviting him to appear before the Tribunal under s 360, but proceeded on the basis that the applicant had to respond to the invitation under s 359(2) of the Act, the time for responding having passed, so it was entitled to proceed without taking any further action to obtain the additional information: s 359C. It recorded: "The last date for a response to this letter was 6 June 2002. As of 20 June 2002 no response had been received. On 17 June 2002 the applicant's agent informed the Tribunal that the applicant's sponsor had withdrawn his nomination. She confirmed that the applicant would not be responding to the letter. Accordingly, the Tribunal decided to exercise its right, under section 359C of the Act, to make a decision on the review without taking any further action to obtain the information requested in its letter of 30 April 2002." The reference to "the applicant's agent" is a reference to Ms Lindsay. 12 After referring to the evidence before the Tribunal, and erroneously describing Ms Lindsay as "the new agent for the visa applicant", the Tribunal considered the relevant provisions of the Regulations and the Policy Advice Manual. It then concluded: "In this case, the Tribunal accepts that the applicant has been a talented amateur boxer who has won some events in Nigeria. On the basis of the information available, he does not, however, appear to have won a national championship or to have reached a level nationally in Nigeria comparable to a solid international level. He appears to have little international experience. In the view of the Tribunal he has not demonstrated that he has a record of outstanding achievement as an amateur boxer. He has not demonstrated outstanding achievement as a professional boxer. Further, as his nominator has withdrawn his nomination, the applicant is not able to produce a nomination testifying to his achievements." 13 Consequently the Tribunal's decision was made upon the same material as that which was before the delegate of the respondent. 14 The grounds of review as contained in the amended application for review and as argued today were threefold. 15 Firstly it was contended that there had been a miscarriage of justice. To support that argument, counsel for the applicant relied upon the material referred to in three affidavits, namely affidavits of Enzo Fardone, filed on 23 October 2002 and 14 November 2002, and an affidavit of the applicant sworn on 20 November 2002 and filed on 6 December 2002. Counsel for the respondent objected to the receipt of certain of that information as it related to events after the date of the Tribunal's decision. I propose to receive the information objected to for the limited purpose of indicating that which the applicant might have conveyed to the Tribunal had he become aware of the letter from the Tribunal to him of 30 April 2002. 16 The affidavit evidence indicates that in early 2002 there was a falling out between the applicant and his nominator, and that the applicant did not receive any communications from the Tribunal directed to him through Ms Lindsay, and did not receive the letter directed to him at his residential address (as disclosed in his application to the Tribunal) dated 30 April 2002. 17 The affidavit evidence also shows that the applicant continued to successfully fight as a boxer in Australia; that on 24 May 2002 he became the Australian welterweight boxing champion; and that by the time of the Tribunal's decision on 25 June 2002, he was the fifth-ranked welterweight boxer of the Orient and Pacific Boxing Federation. The material also indicates that there are other persons, apparently of national reputation in relation to boxing, who support the applicant's application for the visa and may well qualify as nominators who could testify to this achievement and standing in that sport. None of that material was received by the Tribunal. 18 Counsel for the applicant contended in the circumstances, the applicant was "basically abandoned" by his migration agent and by his former nominator, so that the Tribunal's decision involved a miscarriage of justice adverse to his interests. 19 I am not satisfied that those matters demonstrate that the Tribunal has failed to comply with any procedural or common law obligation which might have been imposed upon it in the making of its decision so as to indicate any jurisdictional error on its part. 20 Under s 359(3) of the Act, the notice of invitation under s 359(2) may be given by one of the methods specified in s 379A of the Act. Section 379A(4)(c)(ii) permits the Tribunal to give documents to a person in the applicant's position, including a document under s 359(2), by sending it within three working days of the date of the document by prepaid post to the last residential address provided to the Tribunal by the applicant in connection with the review. Consequently, in my view, the Tribunal complied with s 379A by sending the letter of 30 April 2002 to the applicant at his residential address as disclosed in his application to the Tribunal. There is no suggestion that he subsequently notified the Tribunal of any change in his residential address. Even though the Tribunal has otherwise apparently erred by assuming that Ms Lindsay, the migration agent for the "sponsor" of the applicant and apparently also for Mr Taylor, became the applicant's migration agent, it has by the alternative means of sending a letter under s 359(2) to the applicant at his residential address, satisfied the requirement of s 379A. 21 The consequence is that the Tribunal was, under s 359C, entitled to proceed to make a decision on the review without taking any further action to obtain the additional information. Moreover, s 360(2) provides that the obligation upon the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, does not apply if s 359C(1) or (2) applies to the applicant. Section 360(3) provides that if either s 359C(1) or (2) applies to the applicant, he is not entitled to appear before the Tribunal. 22 I am not persuaded in those circumstances that the Tribunal has therefore committed any failure to comply with any procedural prescriptions imposed upon it for the making of its decision. Given the applicant's disclosure of his residential address to the Tribunal and the Tribunal's use of that residential address, I am also not persuaded that even if there be some additional common law obligation upon the Tribunal to accord procedural fairness to the applicant by giving him an opportunity to be heard in the particular circumstances, that the Tribunal failed to comply with any such procedural obligation: cp e.g. Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 176 ALR 219; Muin v Refugee Review Tribunal [2002] HCA 30. There were no circumstances which put the Tribunal on notice that the applicant still intended to present additional material to it, or that he wished for an opportunity to be heard. The times specified in his application to the Tribunal by his migration agent for the provision of further information, and by Ms Lindsay on 7 February 2002 had long passed, without any suggestion that there was any ongoing intention to pursue the provision of further information. 23 The second ground of review is but an alternative way of asserting a lack of procedural fairness on the part of the Tribunal. The ground of review as argued asserts that the applicant was not: "…given any chance or opportunity to consult with migration authorities or his own representatives or adduce any further evidence of his more recent achievements or current status in the sport of boxing achievements …" 24 There is no obligation upon the Tribunal to provide the applicant with a particular means of communicating with this migration agent. Before the delegate of the respondent, he had a migration agent acting for him and that agent apparently assisted in the preparation of his initial visa application and his application to the Tribunal for review of the delegate's decision. It communicated with the delegate prior to the delegate's decision. There is nothing to suggest that the Tribunal intervened in any way adversely to the applicant's capacity to consult with that migration agent at any time. 25 I have dealt with the contention that the Tribunal somehow failed to give to the applicant the opportunity to adduce further evidence of his more recent achievements or current status in the sport of boxing. In my view it provided him with that opportunity as required by s 359(2) of the Act and did not therefore fail to accord him procedural fairness. 26 In addition, as counsel for the respondent pointed out, the criterion imposed by cl 858.212 of the Schedule to the Regulations specifies criteria to be satisfied at the time of the application. Clause 858.212 makes that clear. Qualifications or achievements of the applicant subsequent to the date of his application and, in particular, during the period after his application to the Tribunal on 26 March 2001 until the Tribunal's decision on 25 June 2002, are not themselves capable of demonstrating that at the time of the application he had a record of outstanding achievements and is still prominent in the sport in respect of which his application was made. 27 Unlike some other visa categories there is no criterion specified that the applicant continue to meet the requirements of a clause such as cl 858.212(3) at the time of the decision. Of course, there may have been something more which the applicant could have put to the Tribunal about his record of outstanding achievement at the time of his application. Counsel for the applicant said there was at least one successful professional fight conducted prior to that time. Neither the applicant nor his migration agent presented that material to the delegate or to the Tribunal or to the delegate of the respondent. But, on the evidence, that fight was won in circumstances which could not rationally have altered the delegate's or the Tribunal's determination of whether the applicant, at the time of his application, met the criteria specified in cl 858.212(3) of the Schedule to the Regulations. No other information was identified which might have informed the decision-maker's consideration of these criteria. Consequently, given the particular time focus of cl 858.212(3), I do not think that the additional material largely now relied upon by counsel for the applicant as demonstrating his bona fides or the outstanding achievements which he has attained in his sport during 2002 go directly to his satisfaction of those criteria. 28 The third ground of review argued was that the Tribunal had erred in fact in concluding that the applicant did not have a record of outstanding achievement, at the time of his application, as he was prominent in the sport of boxing, and that it erred in concluding that he did not have a nomination testifying to his achievements and standing in the sport of boxing from a person having a national reputation in relation to boxing. Adverse findings on those topics were made by the Tribunal in the passage from its reasons for decision which I have already quoted. 29 In my view the findings which the Tribunal made do not indicate that it asked itself the wrong question, or failed to have reference to the evidence which was before the delegate and before the Tribunal on the topic required to be addressed by cl 858.212(3)(a). It is a matter of factual judgment on the part of the Tribunal as to whether, in the light of that material, the applicant satisfied the criterion. It is not for the Court to substitute its judgment on that matter of fact. No particular argument was adduced to support the proposition that, in making its judgment on that matter of fact, the Tribunal somehow erred in law in reaching its conclusion. As the criteria in cl 858.212(3)(a) and (b) are cumulative, I do not need to consider in the circumstances whether the Tribunal erred in having regard to the apparent withdrawal of Mr Taylor as nominator. 30 In any event, in my judgment, even if it were shown that the Tribunal had erred in some way in reaching its decision by failing to accord the applicant procedural fairness, or in failing to comply with a procedural prescription in the Act, or in erring in law in the way in which it had made its findings of fact, I do not think the Court could determine jurisdictional error on the part of the Tribunal so as to entitled the Court to set aside the Tribunal's decision. 31 On 2 October 2001, s 474 of the Act was introduced. It is commonly called the privative clause. It applied to all decisions of the Tribunal made after 2 October 2001, including the subject decision, even though the application to the Tribunal was made prior to 2 October 2001. The majority of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 (NAAV) determined that s 474(1) of the Act was a valid legislative provision, and that it altered the scope or range of jurisdictional error on the part of the Tribunal so that the Tribunal could be shown to have committed jurisdictional error only in limited circumstances, principally those specified by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616. None of the Hickman exceptions has been argued to arise in this instance. In particular, it has not been suggested that the decision is not a bona fide attempt by the Tribunal to exercise the power conferred upon it. 32 NAAV decided that the failure to comply with a procedural prescription imposed by the Act under Div 4 of Part 7 of the Act relating to the Refugee Review Tribunal would not amount to a jurisdictional error on the part of the Tribunal. In my view, the reasoning of the majority in that case applies with equal force to the procedural prescriptions imposed upon the Tribunal under Div 4 of Part 5 of the Act, including ss 359(2), 359C and 360. 33 NAAV also decided that the failure to accord to a visa applicant procedural fairness at common law would itself also not amount to jurisdictional error on the part of the Tribunal. It further decided that to make an error of law, particularly in relation to the process of fact finding by the Tribunal, does not amount to jurisdictional error on the part of the Tribunal. I refer in particular to [635] in the judgment of von Doussa J in NAAV. Black CJ and Beaumont J agreed. The effect of NAAV was discussed in Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108 by Sackville J, in particular [29]-[44] in terms with which I respectfully agree. 34 Accordingly, even if the applicant had succeeded in making out any of his grounds of review on this application as errors on the part of the Tribunal, they would not amount to jurisdictional error so as to entitle the Court to make the orders which are presently sought. 35 I therefore dismiss the application. 36 I note, however, as recorded above, the applicant did have considerable information as to his sporting achievements which he wished to put before the Tribunal for its consideration had he in fact received the letter of 30 April 2002 sent to him under s 359(2) of the Act. They demonstrate - if they are correct - that the applicant may have a record of outstanding achievement in the sport of boxing whilst he has been in Australia and that there are persons having a national reputation in relation to the sport of boxing who may be prepared to testify to his achievement and standing in that sport, and who would - had they been requested at an appropriate time to do so - been eligible nominators under cl 858.212(3)(b) of the Schedule to the Regulations. The effect of my decision should not be seen as precluding the applicant from making any application to the respondent under s 351 of the Act as he may be advised. It is of course up to the applicant whether he wishes to do so. I do not intend by any comments I have made to indicate one way or the other that the applicant would, or would not qualify, for the exercise of the Minister's discretion under that section. 37 The order I make is that the application be dismissed. I order that the applicant pay to the respondent costs of the application to be taxed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.