Suh v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT THE COURT: 1 Strictly speaking, the matter before the Court is an application for an extension of time in which to appeal. There was formal opposition only to that application. The matters raised by the proposed appeal are important ones. We are satisfied that the extension of time sought should be granted. 2 The appellants are husband, wife and their two children. The claims of the second, third and fourth appellants depend entirely upon the claims of the first appellant. The first appellant applied on 30 June 2004 for a subclass 442 visa (Occupational Trainee). The requirements for such a visa are set out in cl 442 of Sch 2 of the Migration Regulations made under the Migration Act 1958 (Cth) ("the Act"). One requirement is stated in cl 442.222(1) in the following terms: "(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.' 3 On 2 July 2004 Tasko Development Pty Ltd ("Tasko") lodged a nomination for occupational training nominating the first appellant as a trainee marketing manager. On 29 January 2005 a delegate of the Minister refused Tasko's nomination of the first appellant for occupational training. On the same day, the same delegate wrote to each of the appellants refusing their applications for visas. The sole ground for refusal was, effectively, that the nomination of the first appellant for occupational training had been refused. 4 On 25 February 2005 the appellants lodged applications for review of the delegate's decision to refuse their visas with the Migration Review Tribunal ("the MRT"). In a decision handed down on 5 July 2007 the MRT concluded that it was bound to affirm the delegate's decision to refuse them visas. An application to the Federal Magistrates Court of Australia ("the FMCA") for judicial review of the decision of the MRT was dismissed on 5 November 2008 (Suh & Ors v Minister for Immigration and Anor (No 2) [2008] FMCA 1546). The foundation for the decisions of the MRT and the FMCA requires examination but first it is necessary to trace in a little more detail the regulatory scheme and the procedural course followed by the delegate. 5 The provisions concerning occupational training visas under cl 442 of Sch 2 are not accompanied by any procedures that deal with the consideration and approval of nominations of positions which might be made available for occupational training. Such procedures are prescribed for a range of other nominations and sponsorships, including a number in the sphere of work and training for work. 6 For example, reg 1.20G provides for the nomination of business activities in which a person might be employed as the holder of a subclass 457 Business (Long Stay) visa (see Sch 2 cl 457.223(4)(a)). Specific provisions govern the requirements for approval of such nominations (reg 1.20H). A right of review is given against a decision refusing to approve a nomination of business activities made in connection with such visas (reg 4.02(4)(d)). 7 Regulation 5.19 also allows employers to apply for approval of a nominated position as an "approved appointment". Such appointments are to full time employment for at least three years. A right of review is given against a decision refusing to approve such a nomination (reg 4.02(4)(e)). 8 Other provisions, which do not require a specific nomination, permit sponsorship of various kinds (professional development sponsorship, trade skills training sponsorship). Detailed provision is made for such applications to be assessed (reg 1.20NA and reg 1.20UL). There is a right of review against a decision to refuse an application for sponsorship of this kind (reg 4.02(4)(g) and (ga)). 9 It is not necessary to refer to arrangements of similar kinds which apply outside the sphere of work and training for work. There are a number of them. Regulation 4.02 provides, for the purposes of s 338(9) of the Act, an extensive catalogue of appeal rights against various kinds of decisions. 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 lodgement 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. 11 As noted earlier, the delegate first decided whether the nomination of the first appellant by Tasko for occupational training should be accepted. The nomination was assessed against the same criteria as would be used to assess the first appellant's visa application if the nomination was approved. The delegate recorded the following: "5. FINDINGS To be approved, a nomination must be assessed as not adversely affecting Occupational Training opportunities for Australian citizens or permanent residents. The Regulation applicable is stated at 442.223(b) and the applicant must satisfy the criteria prescribed for the grant of a Subclass 442 Occupational Trainee visa set down at Schedule 2 of the Migration (1994) Regulations. Criterion 442.223 requires that; '442.223 The Minister is satisfied: (a) that the occupational training that is proposed is i) 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 after leaving Australia; (b) that the occupational opportunities available to Australian citizens or permanent residents of Australia will not be adversely affected if the visa is granted' With regard to criterion 442.223(b), I have examined the nomination to establish whether I am satisfied that it demonstrates that the proposed occupational training is available to Australian citizens or permanent residents. Tasko Development Pty Ltd has not submitted its company prospectus, annual report to shareholders or other similar documentation usually produced by public and private companies that would provide me with a guide to the organisation's structure, activities and training capacity. I find that no claim made or document submitted by Tasko Development Pty Ltd demonstrates that; a) Tasko Development Pty Ltd employs staff designated as training officers or consultants responsible for designing training programs, b) It provides organised training courses to company employees (other than initial on-the-job instruction or orientation), c) It has cadet training programs, or d) It participates in industry-based and government training programs. A combination of any of the above may have demonstrated Tasko Development Pty Ltd's capacity to provide a formalised course of occupational training to Sang Sup SUH. Based on the information on file, I am not satisfied that occupational opportunities available to Australian citizens or permanent residents of Australia will not be adversely affected if the visa is granted. Therefore I am not satisfied that the nomination meets Migration Regulation 442.223(b) and therefore the applicant does not meet Migration Regulation 442.223. As the applicant has failed to meet the criteria at one of the sub regulations the applicant cannot meet the criteria against all of the criteria at Migration Regulation 442. I have not therefore assessed the applicant against other criteria of Migration Regulation 442. 6. DECISION The requirements of Regulation 442.223 have not been satisfied. I therefore refuse the nomination for an Occupational Trainee visa (Subclass 442)." 12 It will be seen that, in this decision, the delegate not only assessed the nomination by reference to criteria applicable to the first appellant's application for a visa but also decided that the nomination should not be approved because the first appellant had "failed to meet the criteria". 13 The delegate may have thought his decision would be reviewable by the MRT. In a letter written to Tasko to advise it that its nomination of the first appellant had not been approved the delegate said: "Decisions not to approve visa 442 nominations or visa applications are merits reviewable only as part of merits review of subclass 442 visa application refusal decisions." 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 (see also Kim v Minister for Immigration and Citizenship [2007] FCA 138 ("Kim"). 15 Adoption of a procedure whereby a nomination for the purposes of cl 442 of Sch 2 is assessed in advance of the merits of an application for a subclass 442 visa has the consequences, if the nomination is refused, that: neither the nominator nor the visa applicant has a right to apply to the MRT for review of the decision about nomination; the visa application is bound to be refused for the reason that there is no approved nomination; the visa applicant has no prospect of succeeding at a review by the MRT of the decision to refuse a visa; and the visa applicant has no prospect of succeeding in an application for judicial review of a decision of the MRT affirming the delegate's decision, or in any appellate process thereafter. 16 Counsel for the Minister pointed out that the fact that the delegate's decision about nomination may not be reviewed by the MRT means that it could be the subject of an application for judicial review to the FMCA unfettered by the limitations on such applications imposed by s 476 of the Act. Accepting that is so, that right would need to be exercised within the time limits imposed by s 477 of the Act, which have been found to be strict (SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39; (2007) 239 ALR 734). They have now been passed. Similar time limits upon the commencement of proceedings in the High Court (s 477A) have been found to be invalid (Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651) but the prospect that proceedings must now be commenced in the original jurisdiction of the High Court to address circumstances of the kind which arise in the present case is an unpalatable one. 17 There are a number of features of the present case which highlight the possibility for injustice occasioned by the lack of any right of review of a decision about nomination under cl 442.222(1). Regardless of the outcome of the present case it would be appropriate if attention was given to the lack of effective and efficient review, including merits review, of decisions about nomination for occupational training which have, as in the present case, a decisive impact upon claims for a visa, which claims are rendered thereby unreviewable in any way. 18 When the delegate assessed the nomination he did so against the criteria for the grant of a visa. Presumably he did so because no other criteria are identified by the Act or regulations. The structure of cl 422.22 suggests that satisfaction of the requirements of cl 442.222 (where the requirement for an approved nomination appears) is separate from assessment of the requirements of cl 442.223 (which the delegate used). The course followed by the delegate, of selecting the criteria in cl 442.223 as ones against which to test the nomination, had the effect that the criteria were effectively taken out of any reviewable assessment process concerning the visa application, rather than being used for that purpose as cl 442.223 clearly contemplates. 19 Moreover, when the delegate came to apply the tests in cl 422.223 to assessment of the nomination, the tests applied by the delegate in "5. Findings" (set out earlier) were, insofar as they were imported from cl 422.223, misstated in a number of respects: