Cho & Ors v Minister for Immigration & Anor [2010] FMCA 3 (27 January 2010)

Last Updated: 29 January 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHO & ORS v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 3

MIGRATION – Visa – Temporary Business Entry (Class UC) visa – review of Migration Review Tribunal decision – where applicants elected not to attend Tribunal hearing – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.359A – whether the Tribunal failed to take into account relevant material – no jurisdictional error.

Migration Act 1958 (Cth), ss.54, 65, 359A, 360, 360A, 476 Migration Regulations 1994 (Cth), Schedule 2, cl.457.223(4)(e)

SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26

First Applicant:

BONG HWAN CHO

Second Applicant:

SANG SOOK LEE

Third Applicant:

KYU SEOK CHO

Fourth Applicant:

KYU MIN CHO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2387 of 2009

Judgment of:

Scarlett FM

Hearing date:

17 December 2009

Date of Last Submission:

17 December 2009

Delivered at:

Sydney

Delivered on:

27 January 2010

REPRESENTATION

Counsel for the Applicant:

Mr Newman

Solicitors for the Applicant:

Newman & Associates

Counsel for the Respondents:

Ms Warner Knight

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The First Applicant is appointed the litigation guardian of the Fourth Applicant
(2) The Application is dismissed.
(3) The First, Second and Third Applicants are to pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2387 of 2009

BONG HWAN CHO

First Applicant

SANG SOOK LEE

Second Applicant

KYU SEOK CHO

Third Applicant

KYU MIN CHO

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Migration Review Tribunal made on 25th August 2009, affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicants Temporary Business Entry (Class UC) visas. The Applicants seek an order in the nature of mandamus remitting the application for visas to the Tribunal for reconsideration according to law.
2. The grounds of the application were said to be:
   1. The decision maker made a decision without considering and ignoring the evidence provided; and
   2. The decision was made in bad faith.
3. The Applicants commenced these proceedings on 30th September 2009 without the benefit of legal representation. On 27th October 2009 the Applicants’ solicitor filed a Notice advising the Court and the Respondents that he was instructed to act for the Applicants. Mr Newman informed the Court that the second ground in the application, alleging bad faith, was not being pressed.

Background

4. The Applicants are a husband, wife and their two sons. The Fourth Applicant, the parties’ younger son, is not yet an adult. His passport, issued by the Republic of Korea, shows his date of birth to be 22nd September 1992.
5. The First Applicant first arrived in Australia in January 2000, and was granted a Temporary Business Subclass 457 visa in December of that year. He was granted a further visa in December 2003, which was valid until 9th December 2007.
6. The four Applicants applied for the visas in the matter under review on 5th December 2007.
7. The Minister’s delegate refused the applications on 5th June 2008. The delegate was not satisfied that the First Applicant met the requirements of cl.457.223(4)(e) of Schedule 2 to the Migration Regulations, because the delegate found that the First Applicant had failed to provide evidence that he had the skill level required for the position of Marketing Specialist.
8. The delegate stated:
   • In application form 1066 the applicant did not declare what relevant training he has received to the proposed activity in Australia.
   • In application form 1066, in relation to the question requesting details of past employment, the applicant advised that it is not applicable.
   • In the approved linked Business Nomination the Sponsor stated that 5 years of relevant marketing experience is required.
   • However the applicant has failed to provide evidence that he has the skill level required for a Marketing Specialist.[1]
9. After their applications were refused, the Applicants applied to the Migration Review Tribunal for review of the delegate’s decision.

Application to the Migration Review Tribunal

10. The Tribunal received the Applicants’ application for review on 7th July 2008. On 17th August 2009 the Tribunal wrote to the Applicants, care of their migration agent, inviting them to attend a hearing scheduled for 22nd September 2009.
11. The letter advised the Applicants:
    • The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.
    • You are invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in your case.[2]
12. The Applicants returned the Response to hearing Invitation form to the Tribunal. Where the form asked the question “Will you take part in the Tribunal hearing scheduled for 22 September 2009?” a tick had been placed in the “no” box beside the name of each Applicant.
13. Again, where the form asked the question “Will your representative be attending?” a tick had been placed in the “no” box beside the name of the Applicants’ migration agent.[3]
14. On 25th August 2009 a Tribunal officer telephoned the Applicants’ migration agent to inquire about the Response to Hearing Form. The Tribunal officer’s case note states:
    • I rang the AR[4]regarding the hearing response he returned on behalf of the applicants, where it appears that none of the applicants have accepted the invitation to attend the hearing, as “No” has been ticked in all cases. The AR advised that the family are intending on returning overseas and want the member to make a decision on the papers before her.[5]
15. The Tribunal made its decision on 25th August 2009, affirming the delegate’s decision not to grant the Applicants Temporary Business Entry (Class UC) visas.

The Migration Review Tribunal Decision

16. In its Decision Record[6] the Tribunal set out the Applicants’ claims and evidence, summarised from their visa application.
17. The Tribunal also stated:
    • On 25 August 2009 the applicants informed the Tribunal that they did not wish to attend the Tribunal’s hearing and agreed to the decision being made on the basis of the material before the Tribunal.[7]
18. In its Findings and Reasons the Tribunal noted that the visa application was made on the basis that the First Applicant was nominated in relation to an activity by a standard business sponsor. No claims were made in respect of other grounds of cl.457.223 and no evidence was provided to show that the Applicants met the requirements of any other paragraph in that clause.
19. The Tribunal found:
    • The first named applicant argues that he meets the requirements of cl.457.223(4). To satisfy that provision, the applicant must demonstrate that he has the skills necessary to perform the activity...
    • On the application form, the applicant stated ‘N/A’ in response to questions about his educational qualifications and training. With respect to other relevant skills, he stated that he had strong marketing skills, good knowledge of Korean market, fluency in Korean language and more than ten years experience in marketing. He stated that he had four years experience in an Australian company as a marketing executive. However, the applicant provided no evidence to substantiate these claims and no other information concerning his skills. He presented little information about his past employment and the nature and extent of skills he acquired through such employment. He presented no information about the nature of his ten years experience or the skills acquired through such. The applicant presented no evidence about any relevant qualifications. Little probative evidence has been presented concerning the applicant’s skills.[8]
20. Noting the limited evidence before it, the Tribunal found itself not to be satisfied that the First Applicant had demonstrated that he had the skills necessary to perform the activity and, therefore, not satisfied that he met the requirements of cl.457.223(4)(e). As a result, he did not meet the requirements of cl.457.223(4), nor did he meet the requirements of any other subparagraphs of cl.457.223.
21. The Tribunal affirmed the decision under review.

Application to the Federal Magistrates Court

22. The Applicants commenced proceedings on 30th September 2009. Their solicitor, Mr Newman, was instructed to act for them on 26th October 2009.
23. Mr Newman filed a written outline of the Applicants’ submissions on 18th November 2009.

The Applicants’ Submissions

24. The Applicants submit that the Tribunal failed to comply with the requirements of s.359A of the Migration Act in its hearing invitation to the Applicants. The invitation said:
    • You are invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in your case.[9]
25. The Applicants claim that the Tribunal did not identify what those issues were, which was a breach of s.359A. The question for determination concerned cl.457.223(4)(e). The obligation contained in s.359A to provide clear particulars of matters which concern the Tribunal and which, without more, may lead to the rejection of the Applicants’ claims are subject to the following proviso in s.359A(4):
    • (4) This section does not apply to information:
      • (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
      • (b) that the applicant gave for the purposes of the application for review; or
      • (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department;
      • (c) that is non-disclosable information.
26. Mr. Newman speculated that the Tribunal may not have complied with s.359A because it acted under the mistaken belief that there was no need to articulate the issues because they arose from a failure on the part of the First Applicant to provide further information. He submitted that the Tribunal’s decision not to articulate the issues was founded upon lack of discrete information or discrete information that the Applicant did not give rather than information that the Applicant gave during the process that led to the decision that was under review. The Tribunal should therefore have alerted the Applicant to the specific issues by giving him clear particulars and its failure to do so caused it to breach s.359A of the Act.
27. In his oral submissions, Mr Newman put to the Court that the Tribunal erred by not considering the information that was contained in the Department’s earlier files relating to the First Applicant’s previous two Temporary Business Entry visas. He referred the Court to the provisions of s.54 of the Migration Act. This, if it were made out, would be a jurisdictional error involving a failure to take relevant material into account.

Conclusions

28. I am not of the view that s.359A of the Migration Act has any application to the Tribunal’s hearing invitation. The invitation told the Applicants that:
    • The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.[10]
29. Thus, the Tribunal had made it “pellucidly clear” that it was unable to make a decision in the applicants’ favour on the basis of the information before it (SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs[11] per Hely J at [16]). The Tribunal was offering the Applicants the opportunity to elaborate on that information at the hearing.
30. The Tribunal affirmed the delegate’s decision because of the absence of evidence sufficient to satisfy the Tribunal that the Applicants met the requirements for the visas that they sought. It is up to an applicant to satisfy the Tribunal that he or she meets the requirements for a visa (Migration Act, s.65).
31. The absence of evidence is not “information” that engages s.359A of the Act.
32. In SZBYR v Minister for Immigration and Citizenship[12] (which related to the essentially similar s.424A) Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ held at [18]:
    • However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
33. Thus, the Tribunal’s view that the Applicants had not provided sufficient evidence was not a matter that engaged s.359A of the Act. Consequently, this ground of review fails.
34. As to the Applicants’ claim that the Tribunal should have considered the material produced for the earlier two visas, the short answer to this is that the material was not before the Tribunal. If the Applicants had wanted the Tribunal to consider this material, they should have put it to the Tribunal for consideration.
35. Tribunal was under no obligation to make its own inquiries.
36. The Applicants elected not to attend the Tribunal hearing, although the Tribunal had made it clear that the information already before it was not sufficient to make a decision in their favour. They did not submit any further written evidence to the Tribunal. When the Applicants “failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of (their) application”.[13]
37. The Tribunal complied with s.360 of the Act by inviting the Applicants to appear at a hearing. The Notice of Invitation complied with s.360A, as it specified the day on which and the time and place at which the Applicants were scheduled to appear. The notice was sent to the Applicants’ migration agent, their authorised recipient. The period of notice given was more than the prescribed period. The notice contained a statement of the effect of s.362B, by saying:
    • Please note that if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow you to appear before it.[14]
38. There is no jurisdictional error.
39. The Tribunal decision is a privative clause decision as defined by s.474(2) of the Act. Privative clause decisions are final and conclusive and not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (s.474(1)).
40. The application will be dismissed.
41. The Court will hear submissions as to costs. It should be noted that the Fourth Applicant is a child who has played no separate part in the proceedings.

I certify that the preceding 41Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !forty-oneforty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 18 December 2009

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[1] See Court Book at page 65
[2] See Court Book at 88
[3] Court Book at 90
[4] Presumably “Applicants’ representative”
[5] Court Book 92
[6] Set out at pages 96 to 101 of the Court Book
[7] Court Book 100 at paragraph [20]
[8] Court Book 100-101 at [23] and 25]
[9] Court Book 88
[10] Court Book 88
[11] [2005] FCA 1306
[12] (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26
[13] [2005] FCA 1306 at [16]
[14] Court Book at 88