Hu v Minister for Immigration & Anor (No.3) [2009] FMCA 629 (2 July 2009)

Last Updated: 8 July 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HU v MINISTER FOR IMMIGRATION & ANOR (No.3)

[2009] FMCA 629

MIGRATION – Visa – Educational (Temporary)(Class TH) visa – application for Occupational Trainee visa under cl.442 Sch 2 of Migration Regulations 1994 nomination for occupational training refused by delegate of Minister – decision of delegate to refuse the nomination not reviewable – no jurisdictional error.

Migration Act 1958 (Cth), ss.474, 476 Migration Regulation Sch 2, cl.442.222

Kim v Minister for Immigration & Citizenship [2007] FCA 138 followed Suh v Minister for Immigration & Citizenship [2009] FCAFC 42 followed

Applicant:

JOO SUNG HU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 20 of 2009

Judgment of:

Scarlett FM

Hearing date:

2 July 2009

Date of Last Submission:

2 July 2009

Delivered at:

Sydney

Delivered on:

2 July 2009

REPRESENTATION

Applicant:

Appeared in person

Solicitor for the Respondents:

Ms Dinihan

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The Application is dismissed.
(2) The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00.
(3) I allow six (6) months to pay.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 20 of 2009

JOO SUNG HU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant in this case has applied for a review of a decision of the Migration Review Tribunal to affirm the decision of a delegate of the Minister, refusing to grant him an Educational (Temporary) (Class TH) visa. That decision was made on 28th November 2008.
2. The basis of the refusal was that the Applicant did not comply with the requirement of sub-clause 442.222(1) of Schedule 2 of the Migration Regulations, in that a nomination for his visa had been lodged and had been approved by the Minister. The Applicant submits that an applicant for an occupational trainee visa can apply to the Migration Review Tribunal for review of the decision, not only to refuse the grant of a visa to the applicant but for review of the decision to refuse the nomination.

Background

3. The background to this matter, so far as it is relevant, is that the Applicant applied for an Educational (Temporary) (Class TH) visa on 13th September 2007. The basis of that application was that he had been nominated by a company called Sarah's Secret Cosmetics Co Pty Ltd. After some correspondence, on 17th December 2007, the delegate of the Minister refused both the nomination of Sarah's Secret Cosmetics and the Applicant's application for a visa.
4. The decision to refuse the nomination is set out in the delegate's decision record of 17th December 2007, where the delegate considered the nomination and said:
   • 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.[1]
5. In respect of the Applicant's application for an occupational training visa, the delegate refused the application on the basis that the Applicant did not satisfy sub-clause 442.222(1) of Schedule 2 of the Migration Regulations. The reasons for that were:
   1. The Commonwealth was not providing a nomination in respect of the occupational training; and
   2. The Minister had not approved the nomination in respect of the occupational training.[2]
6. The Department of Immigration & Citizenship wrote to the Applicant on 17th December 2007, advising him of the refusal of his application and advised him that he could apply for review of this decision with the Migration Review Tribunal. The letter went on to set out the time within which the application for review must be given to the Tribunal.

Application to the Migration Review Tribunal

7. The Applicant did indeed apply for a review of the delegate's decision and that application was received by the Tribunal on 19th December 2007.[3] The Tribunal invited the Applicant to attend a hearing and the Applicant attended that hearing on 21st November 2008. As he is a national of Korea, an interpreter in the Korean language was made available by the Tribunal for the purpose of the hearing.
8. The Applicant gave evidence at the hearing and, on 28th November 2008, the Tribunal made its decision. A copy of that decision was forwarded to the Applicant that same day. The Tribunal, in its decision record, considered the relevant law and said:
   • One necessary criterion for a subclass 442 (Occupational trainee) visa is that at the time of the 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.
   • The nomination application lodged by the nominator was refused by the Department. Without an approved nomination the visa applicant cannot meet clause 442.222 and the application cannot succeed.[4]

The Tribunal’s Findings and Reasons

9. The Tribunal based its finding on that point on the decision of the Federal Court in Kim v Minister for Immigration & Citizenship[5], which was a decision on appeal from the Federal Magistrates Court. The Tribunal, in its findings and reasons, said:
   • [17] A recent judgment by the Federal Court in Kim v MIAC [2007] FCA 138 states that the nomination refusal is not reviewable because it is not an MRT reviewable decision. Whilst it is contrary to earlier cases, the Tribunal considers that Kim (No.7) is currently the leading authority on this issue as it is a judgment of the Federal Court in its appellate jurisdiction.
   • [18] There is no evidence that a nomination in respect of occupational training has been lodged and has been approved. Accordingly, the visa applicant cannot meet cl.442.222.
   • [19] Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.[6]

Application for Judicial Review

10. The Applicant commenced proceedings in this Court for review of the Tribunal decision by filing an application and an affidavit in support. In the application, the Applicant seeks orders in the nature of certiorari and mandamus, quashing the Tribunal decision and remitting the application to the Tribunal for reconsideration and redetermination, in accordance with law. The Applicant also seeks a declaration that the decision of the Tribunal was made in excess of jurisdiction and is therefore null and void.
11. It has been explained to the Applicant today that, whilst the Court has power to make orders as set out in his application, it can only do so if it is satisfied that the Tribunal decision is affected by jurisdictional error.

Grounds of Review

12. The Applicant has, in his application, set out four grounds in which he claims jurisdictional error has been made. They are:
    • 1. The decision not to approve nomination is reviewable only as part of a decision to refuse an occupational trainee visa application.
    • 2. The occupational trainee visa applicant can apply to the Migration Review Tribunal for review of the decision to refuse the nomination.
    • 3. The nomination issues must be assessed even though the nominator did not seek review of the decision.
    • 4. The nominator does not have a review right in regard to its nomination refusal.

Submissions

13. The Applicant has attended Court today and made oral submissions and also, on 13th March 2009, filed a written outline of submissions. In his oral submissions to the Court today, the Applicant complained that the Department had written to him explaining that there was a right of review and, misleadingly perhaps, indicating that there was a right of review of the decision to refuse the nomination.
14. The Applicant, in his written submissions, makes these points:
    • 1. It is evident that the nominator does not have a review right.
      • 2. The Department of Immigration did not mention the review right of nomination refusal in its decision record.
      • 3. Australian Immigration law also states that the decisions not to approve nominations are merits reviewable only as part of merits review of subclass 442 visa application refusal decisions.
      • 4. If there were any review right to the nominator in regard to the nomination refusal, the Department should have informed its review right to the nominator according to the law.
      • 5. The applicant applied to MRT for review of the decision to refuse his visa application according to the law.
      • 6. The nominator did not apply to the MRT for the review of the decision to refuse its nomination application because it does not have the review right separately according to the law.
      • 7. But MRT refused to review my application together with nomination issues because there was no nomination review application with MRT justifying its decision on the basis of previous court decision on the similar case at FMC.
      • 8. If the Department states that the visa applicant has a review right against its decision at the same time the nominator does not have an independent review right, there is no point applying to MRT decision in mentioning his review right.
15. For the Minister, it is submitted that the Applicant's Ground 1 is misconstrued. It points out that, without a valid nomination, all the other factors are irrelevant because clause 442.222 requires an applicant to have an approved nominator before an occupational trainee visa can be granted.
16. In respect of Ground 2, the Minister relied on the decision in Kim v Minister for Immigration and Citizenship at [38], which confirmed that, in respect of an occupational trainee (subclass 442) visa, the delegate's decision to refuse a nomination is not MRT-reviewable.
17. As to Ground 3, it is submitted that this ground is misconstrued because the nomination issues cannot be assessed by the MRT; even if the nomination itself was an MRT-reviewable decision, the Applicant would not have the standing to make an application for review in respect of that issue.
18. In respect of Ground 4, it is submitted that Ground 4 does not allege any error on the part of the Tribunal and is in fact a correct statement because the nominator cannot seek to have the nomination reviewed as the nomination is not an MRT reviewable decision.

Court’s considerations

19. I would point out that those submissions were both filed in the month of March 2009 and at that stage neither party would have been aware of the decision of Suh v Minister for Immigration & Citizenship[7]. That decision is a decision of the Full Court of the Federal Court, by Spender, Buchanan and Perram JJ, and it was handed down on 1st April 2009.
20. In my view, the decision in Suh puts the matter beyond doubt. It confirms that the decision in Kim v Minister for Immigration and Citizenship was correctly decided and, if anything goes further, as I will shortly outline the basis of the decision in Suh. In paragraph [26] of the decision, their Honours say:
    • 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.
21. It is instructive also to consider the decision in Kim v Minister for Immigration and Citizenship, where Lander J held at [24] that the decision to refuse the nomination of the nominator in that case was not an MRT-reviewable decision, because it was not prescribed under s.338(9) of the Migration Act. His Honour went on to say, at [25]:
    • In the end, I do not think it matters whether it was a prescribed MRT-reviewable decision or not. If it was not, as the first respondent contends, and I have found, it was not reviewable by the Tribunal. If it was, in my opinion, for the reasons that follow, it was also not reviewable by the Tribunal at the instigation of the appellant.
22. His Honour went on to consider in that case that the nominator had never sought a review of the decision, and went on to say, at [31] and [32]:
    • In this case, the decision to refuse Shark Australia's nomination was not reviewable by the Tribunal for the two reasons which I have mentioned. First, it was not an MRT-reviewable decision. Secondly, if it was, it was only reviewable at the instigation of Shark Australia.
    • It was for the applicant to satisfy the Tribunal that the applicant met each of the relevant criteria for the grant of the visa.

Ground 1

23. Dealing with the grounds in the application in the matter before me, the first ground says:
    • The decision not to approve a nomination is reviewable only as part of a decision to refuse an occupational trainee visa application.
24. Indeed, that is so, but it is not of assistance to the Applicant, because the requirement to show that the Applicant has a nominator, either being provided by the Commonwealth or approved by the Minister in sub-clause 442.222(1), is a mandatory requirement. Under sub-clause 442.222(1), which says:
    • 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.
25. The requirement, as I said, is mandatory. It matters not if all of the requirements in the other sub-clauses have been met. If sub-clause 442.222(1) has not been met, the application cannot succeed. Accordingly, Ground 1 does not establish jurisdictional error.

Ground 2

26. Ground 2 says:
    • The occupational trainee visa applicant can apply to the Migration Review Tribunal for review of the decision to refuse the nomination.
27. Clearly, that is not the case. The decision of Lander J in Kim and the decision of the Full Court in Suh both make it clear that the Applicant has no power to apply to the Migration Review Tribunal for review of the decision to refuse the nomination. Ground 2 must fail.

Ground 3

28. Ground 3 says:
    • The nomination issues must be assessed even though the nominator did not seek review of the decision.
29. Again, the decisions in Kim and, more recently, in Suh make it quite clear that the decision to refuse a nomination is not an MRT-reviewable decision. If it is not an MRT-reviewable decision, it is not reviewable by the Tribunal, no matter who seeks a review.

Ground 4

30. Ground 4 says:
    • The nominator does not have a review right in regard to its nomination refusal.
31. That is correct, but it is not a ground of review, in that it does not establish error on the part of the Tribunal. It is clear from the decisions of Kim and Suh that the nominator does not have a review right, which is an unfortunate situation for the Applicant, but it does not avail the Applicant in this case.
32. All of the grounds of review, therefore, have not been made out.

Conclusion

33. It is an unfortunate situation, to say the least, that if an applicant for a subclass 442 visa does not have an approved nomination, then, the visa will be refused and the Migration Review Tribunal, on review, will have no option but to refuse the application.
34. In my view, the Tribunal in this case did not fall into jurisdictional error. It had no option; it correctly applied the law in force at the time, which was the decision in Kim v Minister for Immigration & Citizenship, which has since been affirmed in Suh v Minister for Immigration & Citizenship. The Applicant did not have an approved nomination and the Tribunal had no power to review the delegate's decision not to approve the nomination. It follows, therefore, that no jurisdictional error has been made out.
35. I note that the Applicant is currently not legally represented, although the Court is aware that he was previously represented by Mr Poynder of counsel, who is a most experienced member of the Bar and is well-known in this jurisdiction. I have read through the Tribunal decision and there is no indication that I can see of any jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision, as defined by s.474 of the Migration Act. Under s.474, privative clause decisions are final and conclusive, and remedies in the nature of declaration, certiorari and mandamus are not available. It follows that the application must be dismissed. I dismiss the application.

Costs

36. There is an application for costs on behalf of the First Respondent Minister in the sum of $4,000.00. The amount estimated is an amount less than the amount provided by the Court scale. This is an appropriate matter for costs, as the Minister was legally represented, which the Minister usually is, and the Applicant has not been successful in his claim. I am of a view that it is appropriate to make a costs order and that the sum of $4,000.00 which is sought is an appropriate figure.
37. The Applicant, however, has submitted that $4,000.00 is an onerous burden and has sought time to pay. In my view, the Court has the power to grant time to pay. The Applicant has sought six months to pay, which is longer than the Court would usually give. However, in the circumstances, I am prepared to allow it.
38. The Applicant is to pay the First Respondent's costs, fixed in the sum of $4,000.00. I allow six months to pay. I will remove the application from the list of cases awaiting finalisation.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 7 July 2009

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[1] See Court Book at page 34.
[2] See Court Book at page 39.
[3] See Court Book at page 44.
[4] See Court Book at page 89.
[5] (2007) FCA 138
[6] See Court Book at page 91.
[7] [2009] FCAFC 42