Aoun v Minister for Immigration & Anor [2011] FMCA 47 (7 February 2011)

Federal Magistrates Court of Australia

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Aoun v Minister for Immigration & Anor [2011] FMCA 47 (7 February 2011)

Last Updated: 9 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AOUN v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 47

MIGRATION – Review of Migration Review Tribunal (“Tribunal”) decision – visa – sponsored (subclass 457) business entry visa – no approved sponsor – Tribunal’s discretion to delay decision on review – two bases for exercise of discretion – further submission received after Tribunal’s final decision made – functus officio.

Migration Act 1958, ss.359A, 359C, 368, 368A, 474 Migration Regulations 1994, cl.457.223 of sch.2 Migration Amendment Regulations 2009 (No.9)

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 73; (2001) 109 FCR 18 Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor [1997] FCA 551; (1997) 76 FCR 301 SZASP v Minister for Immigration & Citizenship [2007] FCA 771

Applicant:

YOUSSEF AOUN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1115 of 2010

Judgment of:

Cameron FM

Hearing date:

12 August 2010

Date of Last Submission:

23 September 2010

Delivered at:

Sydney

Delivered on:

7 February 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1115 of 2010

YOUSSEF AOUN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applied for Temporary Business Entry (Class UC) subclass 457 visa on 23 May 2008. On 11 August 2008 a delegate of the first respondent (“Minister”) refused the application on the basis that the applicant did not have an approved business sponsor pursuant to cl.457.223(4) of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
3. For the reasons which follow, the application will be dismissed.

Statutory provisions

4. The Tribunal described the Temporary Business Entry (Class UC) visa as one which permits non-citizens with skills needed by Australian businesses to enter and work in Australia temporarily. The subclass 457 (Business (Long stay)) visa generally permits stays of not more than four years.
5. The criteria for the grant of a subclass 457 visa are set out in pt.457 of sch.2 to the Regulations. Relevantly, each of the subclauses in cl.457.223 relate to a different category of 457 visa. The applicant’s visa application indicated that he was applying as a person sponsored by an Australian business and the delegate therefore assessed his application against the criteria in cl.457.223(4). At the time of the delegate’s decision on 11 August 2008, that clause relevantly provided:
   • Sponsorship — Australian business
   • (4) The applicant meets the requirements of this subclause if:
     • (a) the activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer; and
     • (b) the employer is:
       • (i) either:
         • (A) a pre-qualified business sponsor; or
         • (B) a standard business sponsor approved under regulation 1.20D as in force before, on or after 1 July 2003; ...
6. Clause 457.223 was substantially amended on 14 September 2009 by the Migration Amendment Regulations 2009 (No.9). Those amendments applied to all visa applications not finally determined before that date as well as to applications made on or after that date. The Tribunal therefore determined the applicant’s application by reference to cl.457.223(4) as amended by the Migration Amendment Regulations 2009 (No.9), which relevantly provides:
   • Standard business sponsorship
   • (4) The applicant meets the requirements of this subclause if:
     • (a) either:
       • (i) if the applicant and a business activity specified in the application and relating to the applicant were the subject of an approved business nomination under regulation 1.20H as in force immediately prior to 14 September 2009:
         • (A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and
         • (B) the approval of the nomination has not ceased to have effect under subregulation 1.20H (5) as in force immediately prior to 14 September 2009; or
       • (ii) if a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act:
         • (A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and
         • (B) the approval of the nomination has not ceased as provided for in regulation 2.75; ...

Background facts

Visa application

7. The applicant’s visa application of 23 May 2008 indicated that he was applying as a person sponsored by an Australian business, Glebe Street Deli. The visa application was accompanied by an application that Glebe Street Deli be approved as a business sponsor.
8. The proposed sponsor’s application for approval as a business sponsor was refused at some undisclosed point prior to the decision of the Minister’s delegate on the applicant’s visa application. Consequently, as the applicant had not been nominated by an employer who was an approved business sponsor, he failed to satisfy the essential criteria in cl.457.223(4) for the grant of a subclass 457 visa and his application was refused.

Application for review

9. On 8 September 2008 the applicant sought review of the delegate’s decision with the Tribunal. On 3 March 2010 the Tribunal affirmed the decision of the Minister’s delegate not to approve the applicant’s proposed employer, Glebe Street Deli, as a standard business sponsor. The Tribunal wrote to the applicant on 5 March 2010 advising him of this information and inviting him to comment or respond by 13 April 2010. The Tribunal advised the applicant that if it did not receive a comment or response within the period allowed or as extended, he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal and a decision could be made without taking any further action to obtain his views.
10. The Tribunal did not receive the requested comments or response within the period allowed and on 21 April 2010 it proceeded to make a decision on the material before it. Given its decision on 3 March 2010 not to approve the applicant’s proposed employer as a standard business sponsor, the Tribunal found that the applicant did not have an approved sponsor as required by cl.457.223(4) and, accordingly, he did not satisfy the criteria for the grant of a visa.
11. In reaching this conclusion the Tribunal noted that it had received correspondence on 17 April 2010 from the applicant’s appointed representative and authorised recipient, Mr Laba-Sarkis, requesting that any decision of the Tribunal be delayed until a fresh application for an approved sponsorship and business nomination could be lodged and considered by the Minister’s department. The Tribunal refused to delay its decision, stating that:
    1. Mr Laba-Sarkis was the applicant’s authorised recipient, not his appointed representative. As such, he was not formally authorised by the applicant to make the request; and
    2. even if Mr Laba-Sarkis had been authorised to represent the applicant, the Tribunal would not have agreed to the request because it had already considered, and rejected, the sponsor’s application for an approved sponsorship and there was no information contained in the letter to indicate that the sponsor’s circumstances had changed materially.

Submissions post-decision

12. On 21 April 2010 and after it made its decision on the applicant’s review, the Tribunal received a facsimile letter from a Mark Stanton, accountant for the Glebe Street Deli. In his letter Mr Stanton stated:
    • I confirm that Mr Khalil Aoun, owner of the business with his wife Mona Aoun are committed to spend 1% of the turnover on training staff for their business. I support a fresh nomination and sponsorship approval for the above business ...
13. The Tribunal responded by letter dated 22 April 2010, advising the applicant that it had received this submission after a decision on his case had been made and that, in the circumstances, the Tribunal had no power to consider his case any further.

Proceedings in this Court

14. The grounds of the application commencing these proceedings were pleaded as follows:
    • 1. The Tribunal erred in neglecting the information which reached the Tribunal by fax on 20-4-10.
    • 2. The Tribunal ignored the letter of 16 April 2010 which is clear evidence that having an accountant involved and having requested a time should indicate circumstances changed.
15. It is appropriate to deal first with the second ground of the application as it was the principal subject of the parties’ submissions.

Ground 2 – letter 1

16. In relation to the second allegation, it should be said at the outset that the Tribunal did not, as alleged, ignore the letter it received from the applicant’s authorised recipient, Mr Laba-Sarkis. The Tribunal’s letter to Mr Laba-Sarkis of 20 April 2010 demonstrates this.
17. Secondly, it should be noted that the Tribunal’s belief that Mr Laba-Sarkis was not the applicant’s appointed representative was erroneous. Contained in the Court Book tendered by the Minister, and identified in the Court Book’s index as part of the Tribunal’s file, is a document dated 6 September 2008, the same date as the applicant’s application for review to the Tribunal, headed
    • Appointment of Representative
    • Appointment of Authorised Recipient

That document records that Mr Laba-Sarkis was appointed the applicant’s representative and authorised recipient.

18. The next issue presented by the allegation arises out of the contents of Mr Laba-Sarkis’s letter to the Tribunal. Relevantly it said:
    • The Glebe Street Deli employer application for standard business sponsor was refused and discussions were made to lodge a fresh nomination and sponsorship before the 13th of April 2010. Due to some reasons beyond the sponsors control and the inability to receive important documents from the accountant on time, the sponsor was unable to meet the deadline of 13 April. The accountant confirmed that the application for new sponsorship with the attachment would be ready on Thursday 22nd April and will be lodged with the Department on Friday the 23rd of April.
    • Would you kindly ask the Presiding Member whether an extension of time can possibly be granted to lodge the new sponsorship and nomination on or before 23 April 2010 and the applicant, Mr Aoun, would also greatly appreciate if the decision could be postponed until the information is reviewed. The sponsor is committed to providing evidence to the Tribunal about the lodgement of fresh nomination and sponsorship before 23 April.
19. The applicant alleges that this letter amounted to clear evidence of the involvement of an accountant in the sponsorship application of the Glebe Street Deli and that this, in combination with the request for more time, should have indicated a change in circumstances. However, on the facts, the letter does not go that far. It implies that circumstances may have changed but gives no detail and does not point to any objective basis to think that the fresh sponsorship application would be likely to succeed.
20. Mr Laba-Sarkis’s letter was dated 16 April 2010 and, according to the fax header and footer appearing on the copy of that letter reproduced at CB 66, was sent and received on 17 April 2010. The Tribunal’s s.359A notice required that any response to it was to be made by 13 April 2010. Section 359C(2) provides:
    • (2) If the applicant:
      • (a) is invited under section 359A to comment on or respond to information; and
      • (b) does not give the comments or the response before the time for giving them has passed;
      • the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

Consequently, as the letter which Mr Laba-Sarkis wrote was sent and received after the time limit specified in the s.359A notice the Tribunal was empowered to make a decision on the review without affording the applicant a hearing. However, the Tribunal was not required to proceed to a decision. Under s.359C(2) it had a discretion; it could proceed to make a decision or it could delay taking that step.

21. The Tribunal exercised the s.359C(2) discretion concerning the further conduct of the review by declining to delay its decision long enough for the intending sponsor to lodge a fresh application for sponsorship and by proceeding to a decision on the review. The reasons why the Tribunal exercised its discretion in the way it did were set out both in its reply to Mr Laba-Sarkis and also in its decision record at para.16. These have been summarised earlier in these reasons at [11].
22. The Tribunal’s statement that Mr Laba-Sarkis was not the applicant’s authorised representative was incorrect. In its letter to him of 20 April 2010 and in its decision record, the Tribunal made no reference to the
    • Appointment of Representative
    • Appointment of Authorised Recipient,

document and appears to have proceeded only by reference to the fact that the applicant had failed to tick the box on the review application form which provided for the identification of a representative. In para.16 of its decision it said:

The Tribunal notes that Mr Laba-Sarkis has not been appointed by the applicant as his representative; the applicant has simply nominated Mr Laba-Sarkis as his authorised recipient. Mr Laba-Sarkis is therefore not formally authorised by the applicant to make the requests of the Tribunal that Mr Laba-Sarkis has made in his letter of 17 April 2010.

In the circumstances I conclude that the Tribunal overlooked the

Appointment of Representative
Appointment of Authorised Recipient,

form which the Court Book shows was part of its file. Consequently, if the only basis on which the Tribunal exercised its discretion to not delay its decision was its erroneous appreciation of Mr Laba-Sarkis’s status vis à vis the applicant, then the exercise of its decision would have miscarried and the Tribunal’s ultimate decision on the review, which depended on a valid exercise of that discretion, would be affected by jurisdictional error.

23. However, as already noted, the Tribunal’s appreciation of Mr Laba-Sarkis’s status was not the only basis on which it exercised its discretion to not delay proceeding to a final decision. In its letter of 20 April 2010 and also in the reasons for its decision, the Tribunal expressed the view that regardless of Mr Laba-Sarkis’s status, it would still not have delayed its decision because the intended sponsor’s review application to the Tribunal had already been unsuccessful and nothing in Mr Laba-Sarkis’s letter suggested that the sponsor’s circumstances had changed materially. That is to say, the Tribunal was of the view that nothing was to be gained from delaying its decision.
24. Although the Tribunal’s principal concern, when considering Mr Laba-Sarkis’s letter of 16 April 2010, appears to have been the latter’s status, it was also concerned with the merits of the request which was made in that letter and it refused the request to delay its decision by reference to both of these considerations. Although its reasoning relating to Mr Laba-Sarkis was erroneous, no relevant error is apparent in its refusal of the request for a delay in its final decision based on what was advanced in Mr Laba-Sarkis’s letter. As one of the bases of the Tribunal’s exercise of discretion has not been shown to have been erroneous, that exercise of discretion did not miscarry. Consequently, the Tribunal’s ultimate decision was not affected by jurisdictional error by reason that it declined the applicant’s request for a delay in the making of that decision.

Ground 1 – letter 2

25. The applicant also alleges that the Tribunal neglected the 20 April 2010 fax from Mr Stanton. In one sense this is an allegation that the letter was ignored. However, that assertion cannot be made out on the facts given that the Court Book demonstrates that the Tribunal wrote to Mr Laba-Sarkis in relation to that letter on 22 April 2010. In a more substantive sense, the ground alleges that Mr Stanton’s letter deserved more of a reply or greater consideration than it received.
26. The copy of Mr Stanton’s letter which is reproduced in the Court Book at CB 79 bears a fax footer indicating that it was received by the Tribunal at 11.25 on 21 April 2010. However, the Tribunal’s file note which is reproduced at CB 82 is to the effect that by the time Mr Stanton’s letter was received, the Tribunal had already made its decision.
27. The letter which enclosed the Tribunal’s decision is reproduced at CB 69 and the copy which is reproduced there indicates that the original was sent by registered post to Mr Laba-Sarkis on 21 April 2010. It is not clear whether the Tribunal’s decision had been posted to the applicant before Mr Stanton’s letter arrived but that is not important to the present allegation. Section 368(2) of the Act provides that
    • A decision on a review (other than an oral decision) is taken to have been made on the date of the written agreement.
28. It is not necessary that the decision actually be sent to an applicant in order that the decision be effective. Section 368A provides for the methods by which a written decision of the Tribunal is to be notified to an applicant and to the Secretary of the Minister’s department. Importantly, it says in subsection (3):
    • A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision
29. As a result of this provision, the law relevant to this case may distinguished from the law which applied in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 73; (2001) 109 FCR 18, although the principle underlying that case as well as Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor [1997] FCA 551; (1997) 76 FCR 301 and SZASP v Minister for Immigration & Citizenship [2007] FCA 771 holds good, namely that once the Tribunal has discharged its review obligations it is functus officio. Unlike in Singh’s case, and the law which applied at that time, the Tribunal does not need to deliver its decision in order for its review to be complete; s.368A(3) makes this clear. Once the Tribunal’s review is complete and it is functus officio as the Tribunal’s file note reproduced at CB 82 reveals it was by the time Mr Stanton’s letter arrived, it has no power to reopen its review or to consider further information which might, if supplied earlier, have been relevant to that review.
30. As the Tribunal was functus officio when Mr Stanton’s letter arrived, the Tribunal did not err by not further considering the applicant’s case in light of the contents of that letter.

Conclusion

31. Jurisdictional error on the part of the Tribunal has not been demonstrated.
32. Consequently, the application will be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date: 7 February 2011