Nadezhkin v Minister for Immigration and Multicultural and Indigenous Affairs

Federal Court of Australia|2005-02-23|Before: Conti J

REASONS FOR JUDGMENT Background 1 This is an appeal from the orders and reasons for judgment of Federal Magistrate Barnes made and given on 25 June 2004, whereby her Honour dismissed the appellant's application purportedly brought pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of the decision of the Migration Review Tribunal ('the Tribunal') made on 14 May 2004. The Tribunal decision affirmed the decision of the Minister's delegate made on 13 February 2004 not to grant the appellant a Temporary Business Entry (Class UC) Visa. 2 The appellant first entered Australia pursuant to the authority of a 421 Sport Visa after which he applied for subsequent long stay visas, followed by an application for the Class UC visa, which he made by completing a Form 1066 on 26 July 2000. At the relevant time, the Temporary Business Visa Class UC contained two sub-classes: Subclass 456 (Business (short stay)) and Subclass 457 (Business (long stay)). Although the Minister's delegate also considered the appellant's eligibility for the Subclass 456 visa, this subclass was not applicable owing to the fact that it can only be granted for a period not exceeding 3 months, which was shorter than the period stated by the appellant in his Form 1066 application. 3 The application was made on the basis that the appellant would be employed by a company by the name of "Rykono" as an administrative assistant. A letter from Rykono dated 6 September 2000, indicates that it wished to employ the appellant in that capacity. On 13 February 2001, the Minister's delegate rejected the appellant's application for a Subclass 457 visa. In its reasons for decision, the delegate assessed the appellant against subclause 457.223, which is contained in Schedule 2 of the Migration Regulations 1994 (Cth). Relevantly, the delegate found that the appellant had not been nominated by an employer who was an approved business sponsor as is required by Regulation 457.223(5). Counsel for the respondent notes in his outline of submissions that although this subclause relied upon by the delegate was that which was in force at the time of making the determination (as opposed to the regulation in force at the time the visa application was made), this omission is not material since the operative provision of the superseded regulation (being 457.223(5)(b)) was in exactly the same terms. As I mentioned above, the delegate also found that the appellant did not satisfy the criteria for a Subclass 456 visa either. The Tribunal's decision 4 On 12 March 2001 the appellant filed an application for review by the Tribunal of the delegate's decision. The application for review identified the post office box operated by Rykono as the address for service of documents and included a reference to the appellant's residential address in Marrickville. The application for review omitted any statement explaining why the delegate's decision was incorrect. By letter dated 19 March 2001 and addressed to the appellant's address for service, the Tribunal acknowledged receipt of the appellant's application and invited the appellant to provide the Tribunal with any written arguments or documents that he would like them to consider. An information sheet was enclosed with this letter confirming that the appellant could provide further evidence or information for the Tribunal's consideration. 5 On 24 January 2003 the Tribunal wrote to the appellant inviting him to provide further information pursuant to s 359(2) of the Migration Act 1958 (Cth) ('the Act'). The letter went on to explain the basis for the delegate's earlier decision, extracted the terms of Regulation 457.223(5)(b) and informed him that the business activity that he proposed to be employed in was not "the subject of an approved business nomination by the employee" as required by the Regulations. The letter explained that this meant that the appellant did not meet a requirement that needed to be met before a Temporary Business Entry (Class UC) Visa could be granted to him. The Tribunal invited the appellant to withdraw the application for review or otherwise to provide information showing that the activity in which he proposed to be employed had been approved under another nomination. It warned him that unless he did so "the Tribunal, being bound to accept to accept the decision of the Delegate, must find that you cannot meet a requirement in order for you to be granted a Temporary Business Entry (Class UC) visa and must, therefore, affirm the decision by the Delegate that you are not entitled…[to the grant of the visa]". In accordance with s 359B(2) of the Act and clause 4.17(4) of the Regulations, the Tribunal warned the appellant that if the Tribunal did not receive the requested information about the nomination within 28 calendar days of the date of notification of the letter, it could, pursuant to s 359C of the Act, make a decision on the review without taking further action to obtain the information. In addition, the letter warned the appellant that he would not be entitled to appear before the Tribunal should he fail to accept the invitation. The letter also stated that since it had been posted, the appellant would be considered to have been notified of the invitation by 7 working days, in accordance with s 379C(4) of the Act. The letter was sent to the appellant's address for service (at Rykono) as well as to his residential address in Marrickville. 6 Accordingly, the appellant was given until on or before 4 March 2003 to provide information identifying another approved sponsor. As the reasons given by the Tribunal state, the appellant failed to do so. Before me I have a copy of a letter sent to the Department of Immigration, Multicultural and Indigenous Affairs dated 25 July 2000 from one M Ryvchin, Director of Rykono, which outlined the business of Rykono. Neither the Tribunal (in its reasons for decision dated 14 May 2003) nor Barnes FM found any evidence that the appellant had endeavoured to respond to the Tribunal's letter of 24 January 2003 and nothing has been put before me to suggest otherwise. In any event, as counsel for the respondent points out in his outline of submissions: "The appellant asserted that material was provided to the tribunal in relation to his sponsorship by Rykono and complained that this material was not taken into account by the tribunal. Her Honour was correct to conclude that, even if the material was provided, it could not have affected the Tribunal's decision because it did not establish that there was either an approved business nomination or an approved business sponsorship."

7 On 14 May 2003 the Tribunal made a decision affirming the delegate's refusal of the appellant's visa application. The decision was based on the failure to establish that the appellant's employer was a pre-qualified business sponsor or a standard business sponsor as required by subclauses 457.223(4)(c) and 457.223(5)(c) of the Regulations. The Tribunal noted that the decision not to approve Rykono as an approved sponsor had been affirmed in a separate decision of the Tribunal. 8 The Tribunal then referred to its request for further information made in its letter to the appellant on 24 January 2003 and stated that no submission was received by the Tribunal within the period allowed. In those circumstances, the Tribunal exercised its discretion pursuant to s 359C(1) of the Act, which empowers the Tribunal to make a decision on the review without taking any further action to obtain any additional information once a request for that information has been made under s 359 and not complied with. Section 360(1) of the Act, which requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments, did not apply, since the request for additional information had not been complied with: s 360(2)(c). Because of the operation of s 360(3) the appellant had no right to appear before the Tribunal at all. Section 360(3) states that if any of the paragraphs in subsection (2) of s 360 apply, the applicant is not entitled to appear before the Tribunal. 9 In the absence of any material identifying another approved business nomination, the Tribunal affirmed the decision of the Minister's delegate on the same grounds, namely, that the appellant lacked the sponsorship of a pre-qualified business sponsor or a standard business sponsor to satisfy the requirements contained in subclauses 457.223(5)(b) and 457.223(4)(b) (or the later 457.223(5)) of the Regulations. The Federal Magistrate's decision 10 The appellant filed an appeal in the Federal Magistrates Court, which was dismissed by Barnes FM on 25 June 2004. The appellant submitted that there was jurisdictional error committed by the Tribunal because of its failure to consider evidence that was put before it by the purported sponsor, that in the event he was not found to have provided that information, that it was possible that such information might have been located in the purported sponsor's file, and that if the Tribunal had lost such information then the Tribunal should have asked him to the hearing according to s 360 of the Act. Barnes FM did not find any grounds to substantiate the appellant's claim that the Tribunal had fallen into jurisdictional error. 11 First, her Honour found that even had the appellant made comments to the Tribunal or had otherwise placed information before it pertaining to the purported sponsor, a failure to consider such information did not constitute jurisdictional error, since there was nothing in that information that was relevant to the issues raised by the appeal. Barnes FM reminded the appellant that this was not an appeal from the separate decision of the delegate to refuse Rykono's application to become a pre-qualified or standard business sponsor, and nor was it a rehearing on the merits of the delegate's and the Tribunal's decisions in that regard. Barnes FM concluded that any such information, if provided,"…did not establish that there was either an approved business nomination or an approved sponsorship", which was the basis for the decision being appealed from. 12 Similarly, Barnes FM rejected the appellant's submission that his failure to provide evidence at the Tribunal hearing that the purported sponsor could, according to the appellant, meet the criteria for sponsorship, gave rise to a jurisdictional error. Barnes FM noted that the only relevant material that the Tribunal had to consider was evidence of any formal written approval of a pre-qualified sponsor or a standard business sponsor, such as would satisfy subclauses 457.223(4)(c) or 457.223(5)(c) of the Migration Regulations. 13 Barnes FM then went on to consider whether the Tribunal erred either in failing to comply with any of the procedures under the Act or with procedural fairness in the manner in which it proceeded. Her Honour discussed s 360 of the Act and the other related provisions discussed above and concluded that the Tribunal had correctly followed the procedures set out in the Act and the Regulations when it did not allow the appellant to appear at the hearing into the matter. I extract her Honour's reasons on this point: [18]…I have considered whether the Tribunal erred either in failing to comply with any of the procedures under the Migration Act or with procedural fairness in the manner in which it proceeded. The Tribunal is obliged under s.360(1) of the Migration Act 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. The respondent submits, however, that in the circumstances of this case the exception in subsection (2) is applicable. Section 360(2) provides that subsection (1) does not apply if section 359C(1) or (2) applies to the applicant. Section 360(3) provides that:

If any of the paragraphs in subsection (2) of s360 apply, the applicant is not entitled to appear before the Tribunal.

Consequently it is necessary to consider whether s.359C of the Migration Act applies. Section 359C(1) of the Act provides:

If a person is invited under section 359 to give additional information, and does not give the information before the time for giving it is past, the Tribunal may make a decision on the review without taking any further action to obtain the additional information.

[19] In this instance the Tribunal gave a notice to the applicant by letter of 24 January 2003 which purported to be an invitation under s.359 of the Act. Section 359(1) provides:

The Tribunal may get any information that it considers relevant. If it does it must have regard to it, and it may invite a person to give additional information.

[20] Section 359(3) specifies the manner in which this is to be done and was satisfied. The invitation was given by a letter sent by pre-paid post to the address for service provided by the applicant in the application for review.

If a person is invited under s.359 to give additional information, the invitation is to specify the way in which the additional information or the comments may be given.

The letter complied with s.359B. It specified that the applicant was to provide the requested information in writing within 28 calendar days of the date of notification and specified the date of notification.

[22] In accordance with s.379A(4) the notification was sent by pre-paid post to the last address for service provided to the Tribunal by the applicant as well as to the residential address. There was a minor spelling mistake in the suburb of the residential address for the applicant. However, s.379A(4) provides alternatives. There was compliance with s.379A(4)(c)(i) in correctly sending the letter to the last address for service. As in Egbrime v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 1611, although there was a difficulty with one of the addresses to which the s.359 letter was sent, there was compliance by one of the alternative means. Notification was given to the applicant in accordance with s.379A. The time provided for in the letter also meets the requirements of Regulation 4.17 in particular sub-regulation 4.17(4) which provides for 28 days notice. Section 379C(4) of the Act deems the time of receipt by the applicant of the letter to be seven working days after the date of the document.

[23] Taking all of this into account I am satisfied that the letter complied with the statutory requirements and that the time for the applicant to comply with the letter had elapsed before the Tribunal made its decision. The Tribunal wrote to the applicant on 24 April 2003 advising that it had made a decision in his case and that the decision would be handed down on 14 May 2003. There is nothing to suggest that there was any correspondence from the applicant to the Tribunal following that letter and prior to the handing down. That letter was also sent to the two addresses, the address for service and the residential address.

[24] As the Tribunal had sought information under s.359 in accordance with the requirements of the Migration Act and Regulations and had received no reply, s.359C came into operation. This empowered the Tribunal to make a decision on the review without taking any further action to obtain the applicant's view on the information (see Branson J in Haque v the Minister for Immigration and Multicultural Affairs (2001) FCA 1077 at [12] and [13]). Hence the Tribunal was relieved of the statutory obligation imposed by s.360(1) of the Act to invite the applicant to appear before it. Section s.360(2)(c) applied and pursuant to s.360(3) the applicant was not entitled to appear before the Tribunal. No failure to comply with procedural requirements has been established on the material before me. Nor is any lack of procedural fairness apparent.

14 Barnes FM found that it was open to the Tribunal to proceed to make a decision without taking any further action to ascertain the appellant's views and that it had put the appellant on notice of the critical issues as well as providing him with an adequate opportunity to comment. Since no error was established, the appeal was dismissed and the decision of the delegate affirmed. The current appeal 15 The appellant filed a notice of appeal from Barnes FM's judgment on 13 July 2004. I extract those purported grounds as they appear in the notice (read literally): 2. I disagree with the Federal Magistrate Court's decision on the grounds that the judge failed to take into account relevant material and facts.

(a) Under s 39 of the Australian Immigration Law decision has to be based on objective principal

(b) During the hearing I tried to demonstrate that decision of the Migration Review Tribunal contradicts s 360 of the Australian Immigration Law.

(d) Information from Migration Review Tribunal, which contains information about my sponsor, was not presented at the hearing

Under the heading "Order Sought" in the purported Notice of Appeal the appellant stated: The Court did not take in account all relevant materials, which were presented to the Migration Review Tribunal and refused to disclose documents, which has been lodged with the sponsorship application.

I would like to set a side the decision of the Federal Magistrate Court and have a new hearing at the Federal Magistrate Court of Australia.

The carriage of this appeal 16 I note that the notice of appeal appears to repeat the contentions advanced in the Federal Magistrate's Court. They do not satisfy the requirements of Order 52 r 13(2)(b) of the Federal Court Rules 1976 (Cth), which require an appellant to state 'briefly, but specifically the grounds relied upon in support of the appeal'. The appellant failed to comply with my orders made on 10 August 2004 which required (inter alia) the appellant to file and serve a written outline of his submissions within five days of the final hearing of the proceedings. 17 Originally this appeal had been set down for hearing on the 3 December 2004, however this did not go ahead owing to the sickness of the appellant. The matter was then scheduled to be heard on 10 February 2005 at 10.15am however as a result of a Federal Court ceremonial sitting, the matter was moved to 11.30am. My associate left a message on the appellant's mobile telephone the day before the scheduled hearing, informing him of the minor change in schedule. When the appellant failed to appear in court at the scheduled time on 10 February, I stood the matter over until 16 February 2005 at 3.00pm, irrespective of the fact that the notice of appeal did not disclose any legal grounds of appeal and neither the respondent, nor the Court, had received any submissions or additional information from the appellant by that stage. 18 My associate sent a letter to the appellant at his address for service in Chippendale and to the solicitors for the respondent informing them of the change in hearing date. On 15 February 2005, my associate faxed a copy of the same letter to the appellant and again tried to call his mobile phone (the number for which had been provided to my associate by solicitors for the respondent the week before). My associate left another message confirming that he had received the letter notifying him of the change of hearing and asking him to contact my associate immediately. 19 My associate was finally able to speak to the appellant on the morning of the 16 February 2005, the day of the hearing. My associate tried to call the appellant's mobile phone number again and was successful in speaking to the appellant at 8.10am. The appellant was informed that he, or his legal representative, was expected in court at 3.00pm later that day. The appellant was asked whether he had received the letter dated 11 February 2005 notifying him of the new listing. My associate was informed that the appellant was currently in Brisbane, and had been for a number of days such that any letter arriving at his Chippendale address (which the appellant confirmed was his home address) would not have been read by anyone since he was in Brisbane. The appellant said that it would be impossible to attend the hearing but did not explain why. He further told my associate that he had thought that the appeal had been decided against him on the 10 February 2005 when there was no court awaiting his appearance at the scheduled time. It is significant that the appellant made no attempt whatsoever to contact either the solicitors for the respondent or my associate in order to ascertain the reason for there being a closed court at the originally scheduled hearing time on 10 February 2005. My associate told the appellant that he must attend court and he advised him to contact the solicitors for the respondent to inform them of his absence. 20 In those circumstances I decided to hear the appeal pursuant to Federal Court Rules 1976 O 52 r 38A(1)(d) which states that the Court may proceed with a hearing of an appeal in the absence of one of the parties. 21 The purported grounds of appeal enumerated by the appellant do not, as I have said, disclose any apparent basis of error in the judgment of Barnes FM. It is not clear to me, or to counsel for the respondent, what is meant by ground (a) of the purported notice of appeal. My best perception is that he is thereby referring to s 39B of the Judiciary Act 1939 (Cth). Grounds (b) through to (d) are appropriately addressed already, once regard is had to the reasons of her Honour Barnes FM, which I have extracted above. The contention in ground (b), that the decision of the Tribunal to exclude the appellant from the hearing contravened s 360 of the Act, is completely unfounded. As Barnes FM held, the appellant failed to provide any additional information when requested to do so by the Tribunal in its letter of 24 January 2003. This brought into operation s 359C(1) of the Act and also, via the machinery of s 360(2)(c), s 360(3) of the Act, which disentitles an applicant from appearing before the Tribunal. Whether or not the information about his purported sponsor, Rykono, was given to the Tribunal (or should have been considered by them) does not fall for question, since that information was not that which was requested by the Tribunal in its letter of 24 January 2003. Nothing short of written evidence of the appellant's employment in an activity the subject of an approved business nomination by an employer qualified as either a pre-qualified or standard business sponsor, would have satisfied the request. The information to which the appellant now apparently points does not answer this description. I say "apparently" because I have received nothing by way of submissions from the appellant that explains or in any way particularises the purported notice of appeal. 22 Therefore, for the detailed reasons given by Barnes FM, I conclude that there was no error in her Honour's decision to dismiss the application for review, nor in the decision of the Tribunal to do the same. 23 I also find that there is no error disclosed in her Honour's reasons for holding that it was open to the Tribunal to determine the application for review without the attendance of the applicant and without making any additional requests for information subsequent to that made in the letter of 24 January 2003, pursuant to s 359C(1) and s 360(3) of the Act. As I have said, this is due to the appellant's failure to respond to the Tribunal's request for further information in relation to his sponsorship for his visa application contained in the letter of 24 January 2003. 24 I reiterate her Honour's observation that it appears that the appellant seeks to challenge the refusal of the delegate to grant sponsorship approval to Rykono, which is an entirely separate decision from that which is now the subject of the appeal. 25 I dismiss the appeal and order that the appellant pay the respondent's costs of the appeal. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Solicitor for the Respondent: Australian Government Solicitor

Judiciary Act 1939(Cth)s 39B

Federal Court Rules 1976(Cth)

Migration Act 1958(Cth)ss 359(2), 359B, 359C, 360

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