Suh v Minister for Immigration and Citizenship [2009] FCAFC 42 (1 April 2009)

Last Updated: 2 April 2009

FEDERAL COURT OF AUSTRALIA

Suh v Minister for Immigration and Citizenship [2009] FCAFC 42

PRACTICE AND PROCEDURE – decision made by delegate of Minister to refuse nomination for occupational training not reviewable by Migration Review Tribunal – not open to find that Migration Review Tribunal or the Federal Magistrates Court committed any jurisdictional error.

PRACTICE AND PROCEDURE – whether authority of judgments of single judges of Federal Court changes according to whether they are sitting in the Court’s original or appellate jurisdiction.

ADMINISTRATIVE LAW – whether decision made by delegate of Minister to refuse a nomination for occupational training visa reviewable – decision not to approve a nomination made for the purpose of cl 442.222(1) not reviewable

MIGRATION – application for Occupational Trainee visa under cl 442 Sch 2 Migration Regulations – nomination for occupational training refused by delegate of Minister – whether decision of delegation to refuse the nomination reviewable – decision not to approve a nomination made for the purpose of cl 442.222(1) not reviewable.





Federal Court of Australia Act 1976 (Cth) s 25(1AA)
Migration Act 1958 (Cth) ss 338, 476, 477, 477A
Migration Regulations Sch 2 cll 442.22, 457.223(4)(a); regs 1.20G, H, NA and UL, 4.02(4)(d), (e), (g) and (ga), 5.19

Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Kim v Minister for Immigration and Citizenship [2007] FCA 138
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39; (2007) 239 ALR 734
Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375



SANG SUP SUH, GI SUP KIM, JU YEON SUH and JUN HEOK SUH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
NSD 1941 of 2008

SPENDER, BUCHANAN AND PERRAM JJ
1 APRIL 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1941 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SANG SUP SUH First Appellant GI SUP KIM Second Appellant JU YEON SUH Third Appellant JUN HEOK SUH Fourth Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGES:	SPENDER, BUCHANAN AND PERRAM JJ
DATE OF ORDER:	1 APRIL 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appellants are granted an extension of time in which to appeal.

2. The appeal is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1941 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SANG SUP SUH First Appellant GI SUP KIM Second Appellant JU YEON SUH Third Appellant JUN HEOK SUH Fourth Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGES:	SPENDER, BUCHANAN AND PERRAM JJ
DATE:	1 APRIL 2009
PLACE:	SYDNEY

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] HCA 14; (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:

- cl 442.223(b) refers to occupational opportunities available to Australian citizens or permanent residents – not occupational training opportunities (compare the first paragraph);

- the test is not whether the proposed occupational training is available to Australian citizens or permanent residents (compare the third paragraph).

- the test is not whether Tasko had demonstrated a "capacity to provide a formalised course of occupational training" to the visa applicant (compare the sixth paragraph).

- despite the formality of considering whether to approve the nomination the decision in fact proceeded upon conclusions as to whether the visa applicant had satisfied the requirements of cl 442.223 (compare the seventh and eighth paragraphs).

20 There was no fact or circumstance referred to by the delegate from which it might reasonably have been concluded that the grant of a visa to the first appellant, or approval of the nomination by Tasko, would, or would be likely, to adversely affect "occupational opportunities available to Australian citizens or permanent residents of Australia".

21 It is also apparent that the delegate did not, in fact, decide the question of nomination in advance of the visa application. It is quite clear that he decided both matters together and regarded them as inextricably connected. The statement in the seventh paragraph of "5. Findings" that "the applicant does not meet" the requirements of cl 442.223 is telling. The requirement set out earlier – that there be an approved nomination – did not arise from that provision. It arose from cl 442.222(1). The visa applicant was required to satisfy each of the requirements from cl 442.222 to 442.229. At this point in the decision the delegate stated a conclusion adverse to the visa applicant, about the visa application, which would have been otherwise reviewable by the MRT. It does not appear that the delegate had grounds, apart from the assessment of whether the visa applicant satisfied cl 442.223, to decide that the nomination should not be approved. Adoption of what seems likely to have been an empty formality, by refusing the nomination as a separate act, seems only to have had the result of removing review rights from the visa applicant. We emphasise that we are saying nothing about the merits of the visa application. The vice in the present case is that the lack of any right of review of the nomination decision has the consequence that no review is available of either the way the delegate approached the assessment of the nomination or, effectively, of the refusal of the visas.

22 Finally, the advice given in the letter to Tasko was misleading, in the circumstances, in two important respects. First, it suggested that a merits review of the decision not to approve the nomination might be available, although not independently of a review of refusal of a visa. Secondly, it thereby suggested that Tasko would have no right to a merits review concerning the nomination but the visa applicant would. Both suggestions were incorrect.

23 The first was incorrect because, in accordance with the process the delegate elected to follow, the decision to refuse the nomination did not fall within any of the categories of MRT reviewable decisions which s 338 of the Act identified. The second suggestion was contrary, first of all, to the general scheme established by the Act and regulations for review of decisions. Regulation 4.02 establishes a comprehensive scheme for review of a series of decisions (thereby bringing them within the operation of s 338 – see s 338(9)) but it restricts a right of review, in the case of decisions about nomination or sponsorship, to nominators or applicants to be approved as sponsors (see reg 4.02(5)). The second suggestion was also directly contrary to the observations of Lander J in Kim. Lander J held (at [25]-[29]) that if a decision to refuse a nomination under cl 442.222 was reviewable by the MRT (contrary to his view) then the only person who might seek such a review would be the nominator and not the visa applicant.

24 All in all, the position in which the appellants, and Tasko, were put by the procedures which were followed is not a happy one. However, it does not follow that the present appeal can succeed. We would only be entitled to uphold the appeal in the event of error by the FMCA. Correspondingly, that would require a finding that the outcome before the MRT was actually affected by some jurisdictional error in its decision or procedures (see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [1], [82]). It is therefore necessary to see whether that requirement is met in the present appeal.

25 The foundation for the decision of the MRT to affirm the decision of the delegate to refuse the appellants’ visa applications was identified as follows:

"The evidence in this case is that there has been no application made in relation to occupational training to be provided by the Commonwealth and there is no approved nomination in place as Tasko Development Pty Ltd’s nomination for occupational training was refused on 29 January 2005. The reasons for the refusal of the nomination application has (sic) been clearly articulated in the Departmental refusal."

26 The final sentence was unnecessary to the point being made. 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 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.

27 That conclusion means that the application to the FMCA for judicial review of the decision of the MRT was bound to fail also. No error can be shown, therefore, in the decision of the FMCA to dismiss that application. There are, however, some matters arising from the judgment of the FMCA which warrant some comment.

28 In Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375 ("Tvarkovski") Goldberg J dealt with a decision of the MRT where the MRT had declined to review a refusal of an employer nomination in connection with a temporary skilled visa. That refusal had doomed an application for a visa. The provisions applicable were not those which applied in the present case. His Honour rejected a submission by the Minister that two separate decisions were involved. However, the decision turned very closely on the form the provisions took at that time. There had been no requirement for a separate decision although the provisions had since been amended to that effect (see at [22]-[23]). In light of the fact that the provisions in question were significantly different from those under consideration in the present case the judgment does not bear on the issues in the present appeal. In Kim, Lander J was concerned with the same provisions as in the present case. His Honour came to the same view as we have. There has been no right of review given against non-approval of a nomination under cl 442.222.

29 The Federal Magistrate thought that the decision in Kim should be followed in preference to that in Tvarkovski because Lander J was "sitting as the Full Court of the Federal Court on appeal from [the FMCA]". There is no tension between Tvarkovski and Kim and it was therefore not necessary to approach the matter that way. Furthermore in Kim, although Lander J was exercising the appellate jurisdiction of the Court, he was sitting as a single judge and not as the Full Court (see Federal Court of Australia Act 1976 (Cth), s 25(1AA)). The Federal Magistrate was correct to regard herself as bound by Kim. That would be so whether it was a judgment of a single judge or a Full Court. However, we wish to enter a general caveat against any notion that the authority of judgments of single judges of the Court waxes and wanes according to whether they are sitting as single judges in the Court’s appellate jurisdiction or in the Court’s original jurisdiction and, if the former, on appeal from any particular court or judicial officer. The matter was not the subject of argument and we will, accordingly, do no more than register our concern that the true position may have been misunderstood.

30 The appeal must, despite the somewhat anomalous and unfortunate aspects to which we have drawn attention, be dismissed. Regrettably we see no principled reason why costs should not follow the result.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices SPENDER, BUCHANAN AND PERRAM .

Associate:

Dated: 1 April 2009

Counsel for the Appellants:	Mr N Poynder
Counsel for the Respondents:	Mr G R Kennett
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	12 March 2009
Date of Judgment:	1 April 2009