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Lachmi v Mima [2002] FMCA 19
FEDERAL MAGISTRATES COURT OF AUSTRALIA
MIGRATION β review of decision of the Migration Review Tribunal β rejection of visa
application β consideration of the application of the privative clause in the Migration Act β procedural fairness β legitimate expectation β no reviewable error disclosed by reason of the operation of
the privative clause.
Federal Magistrates Court Rules 2001
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss. 359A, 359C, 360, 474, part 5
Migration Regulations
Craig v South Australia (1995)184 CLR 163
Houcher v MIMA (1990) 169 CLR 548
MIMA v Yusuf (2000)180 ALR 1
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598
R v Murray; ex parte Proctor (1949) 77 CLR 387
Re MIMA; ex parte Miah (2001) 179 ALR 238
Walton v Ruddock [2001] FCA 1839
Yan v MIMA [2001] FCA 819
Zhou v MIMA [2000] FCA 1523
Zhou v MIMA [2000] FCA 1833
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Respondent:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
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Delivered on:
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6 February 2002
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Hearing Date:
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6 February 2002
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REPRESENTATION
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Counsel for the Applicant:
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Mr J Young
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Solicitors for the Applicant:
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Newman & Associates
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Counsel for the Respondent:
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Mr G Johnson
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Solicitors for the Respondent:
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Australian Government Solicitor
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ORDERS
Introduction and background
1. This ex tempore judgment relates to an application for a review of a decision of
the Migration Review Tribunal ("the MRT") made on 12 September 2001. That decision was to affirm a decision made by a delegate of the Minister for Immigration and
Multicultural Affairs on 20 December 2000 to refuse to grant to the applicant a temporary business entry visa (class UC). The parties to the proceedings before the
MRT were the applicant, Mun Reddy and Minesh Reddy. Mr Mun Reddy is the spouse of the applicant and Minesh Reddy is their child, born on 22 May 1999. All three had
applied for a visa at the same time and the decision of the delegate related to all three applications.
2. Only the applicant has applied to this Court for review of the decision of the
MRT. No request was made by either party to join the other two applicants to the MRT to these proceedings. Nevertheless, the decision in these proceedings will necessarily
impact upon the circumstances of Mun Reddy and Minesh Reddy. The applicant was the primary visa applicant and her spouse and child were secondary applicants.
Rule 11.01(1) of the Federal Magistrates Court Rules 2001 provides that, subject to any order of the Court, a person whose participation is necessary for the Court to completely
and finally determine all matters in dispute in a proceeding must be included as a party in the proceeding. I have decided to not require the inclusion of Mun Reddy and Minesh
Reddy as applicants in these proceedings, given that the applicant was the primary visa applicant and that the determination of her application will effectively determine the fate
of the visa applications by Mun Reddy and Minesh Reddy.
3. The applicant is a Fiji national and was born on 20 December 1974. On 23
July 1999 the applicant's migration agent forwarded to the Department of Immigration and Multicultural Affairs ("DIMA") an application for a long stay visa (sub class 457)
together with an application for pre-qualified business sponsorship and supporting documentation. The visa application was made on the basis that the applicant would be
employed by a company called Tara International Trade Pty Ltd ("Tara International") as a travel consultant/Fiji inbound manager. However, the application for approval as a
business sponsor made by Tara International was refused by the delegate on 20 December 2000. That decision was accompanied by a statement of reasons for the decision.
4. Also on 20 December 2000 the delegate rejected the application for a
temporary business entry (class UC) visa on the grounds that the applicant did not qualify either for a sub class 456 (business - short stay) or a sub class 457 (business β
long stay) visa. The applicant had in fact not applied for a sub class 456 visa. The delegate found that the applicant did not satisfy any of the prescribed criteria for a
temporary business entry (class UC) sub class 457 (business β long stay) visa, principally because the application by Tara International for approval as a business sponsor had been rejected.
5. The MRT affirmed that decision. The MRT found that one necessary criterion
for a sub class 457 visa on the basis of a sponsorship by a business operating in Australia is that the proposed employer is a preβqualified business sponsor or a
standard business sponsor. The MRT found that the application by Tara International had been rejected and that there had been no application for review of that
decision. Accordingly, the MRT found that the primary visa applicant's proposed employer had not been approved as a business sponsor as required by sub clause
457.223(4) and sub clause 457.223(5) of Schedule 2 to the Migration Regulations ("the Migration Regulations"). The MRT found that the primary visa applicant did not meet the
criteria for a sub class 457 visa as an employee of an approved business sponsor and found that there was nothing to suggest that the primary visa applicant satisfied any
other basis set out in the Migration Regulations for a grant of a sub class 457 visa. Neither was there any suggestion any of the secondary applicants met any of the
grounds for a sub class 456 or 457 visa. Accordingly, the MRT affirmed the decision under review before it.
6. At the time the application for review was filed in this Court the applicant held a
bridging visa granted on the basis of the application for visas being the subject of a review application.
The applicant's case
7. The original application filed by the applicant appeared to be based upon the
now repealed judicial review provisions of the Migration Act 1958 (Cth) ("the Migration Act") and stated that the MRT decision was made contrary to s.474 of the Migration Act
on the ground that, prior to the decision being handed down by the MRT on 12 September 2001, the MRT was advised of the approval of the applicant's sponsor.
However, I gave leave today to the applicant to file an amended application for review seeking prerogative relief, consistently with this Court's jurisdiction under s.39B of the
Judiciary Act 1903 (Cth). It seems that on 31 August 2001 the applicant's agent sent a fax to the MRT advising it that Tara International had applied afresh for approval of its
business sponsorship and business activity. The applicant tendered (exhibit A1) a file note prepared by the presiding member of the MRT on 5 September 2001 which makes
clear that the MRT was aware of the fresh application by Tara International and decided to proceed with its decision anyway. The applicant seeks orders that the decision of the
MRT be quashed and that mandamus issue requiring the MRT to determine the visa application according to law. The applicant also seeks to prohibit the Minister from
acting on the decision of the MRT, and seeks her costs.
The respondent's case
8. The Minister has not filed a response to the application but, by affidavit sworn
on 1 February 2002, the Minister's solicitor conceded that a further application by Tara International for pre-qualified or standard business sponsorship with DIMA had been
made under cover of a letter dated 31 August 2001. The solicitor deposed that on 11 September 2001 a decision was made by a delegate of the Minister to approve the
application. However, on the same day, a decision was made by the same delegate not to approve an application made by Tara International for nomination of a business
activity. Mr Geoffrey Johnson, for the Minister, submitted to me at the hearing of this matter today that the effect of these two decisions was not to alter in substance the
position found by the MRT in its decision on 12 September 2001. The Minister submits that no error of law was made by the MRT. The Minister opposes the application for
review and seeks orders that the application be dismissed with costs.
Consideration and findings
9. I have been assisted by written submissions prepared by Mr Johnson on 4
February 2002. Both counsel also made helpful oral submissions. The first issue arising is one of jurisdiction. This Court has concurrent jurisdiction with the Federal Court to
review decisions of the MRT subject to restrictions and limitations set out in the Migration Act. Those restrictions are different from those formerly applying under part 8
of the Migration Act. The present application was filed on 16 October 2001. On 1 October 2001 there commenced extensive amendments to the Migration Act which, as
well as conferring jurisdiction on this Court, imposed far reaching limitations on the power of this Court and the Federal Court to review decisions, while at the same time
repealing pre existing restrictions on grounds of review (including grounds of a breach of the rules of procedural fairness). The first question I must decide, therefore, is whether
those amendments apply to this application. I am aware that questions have been raised concerning the validity of certain of the amendments made to the Migration Act,
in particular, the introduction of a "privative clause" at s.474. However, the issue of validity was not argued in the proceedings before me and Commonwealth legislation is
presumed to be valid until it is found to be invalid. Accordingly, I have proceeded on the basis that the amendments made to the Migration Act are valid.
10. Section 474 of the Migration Act provides that a "privative clause decision" is
final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in question in any court and is not subject to prohibition, mandamus, injunction,
declaration or certiorari in any court on any account. A privative clause decision is defined to include a decision of the MRT on a review of a decision to refuse to grant a
visa. Accordingly, the privative clause and the other amendments made to the Migration Act impacting upon this Court's jurisdiction apply to these proceedings. On its face,
s.474 appears to preclude any judicial review of a privative clause decision. Mr Johnson submitted that I could decide this case without making any ruling on the
operation of the privative clause, but I have decided that, in the circumstances of this case, I should do so.
11. Section 474 must be read subject to the decision of the High Court in R v
Hickman; ex parte Fox and Clinton (1945) 70 CLR 598. That case is authority for the proposition that it is open to a court to review a decision subject to a privative clause on the basis that:
a) the decision was not a bona fide attempt to exercise the decision
maker's power;
b) the decision displayed a constitutional or statutory jurisdictional error on
its face; or
c) the decision did not relate to the subject matter of the legislation or was
not reasonably capable of reference to the power given to the Tribunal.
12. There is no suggestion in this case that the decision under review was not a
bona fide attempt by the MRT to exercise its decision making power. In addition, there is no suggestion of a constitutional error apparent upon the face of the decision. Neither
is there any suggestion that the decision did not relate to the subject matter of the legislation or was not reasonably capable of reference to the power given to the MRT. It
follows that the only question I have to decide is whether the decision of the MRT on its face disclosed a statutory jurisdictional error.
13. The decision of the MRT was published on 12 September 2001, the day on
which the decision was formally handed down. However, it is clear from a letter sent to the applicant by the MRT on 29 August 2001 that the Tribunal had already made its
decision by that date. Exhibit A1 indicates that the decision was made on 27 August 2001. The MRT had, by letter dated 17 July 2001, invited the applicant to comment on
the material before the Tribunal. That letter referred specifically to the decision made on 20 December 2000 by the delegate to reject the application made by Tara International
for approval as a business sponsor. The letter specifically warned the applicant of the consequences of failing to comment within the time required. In its reasons for decision
the MRT stated that it had received no response to the invitation contained in the letter of 17 July 2001 and that it accordingly had made its decision on the material before it.
That material must have been the material before the Tribunal as at 17 July 2001, or at least no later than 27 August 2001.
14. On 30 August 2001 the applicant's migration agent wrote to the presiding
member of the MRT, asking the Tribunal to take into account the fact that key persons associated with Tara International had been overseas for an extended period and hence
unable to deal with the rejection of the sponsorship application in December 2000 and following. It appears from exhibit A1 that that letter was taken into account by the MRT
but the presiding member decided not to alter or defer the decision that already had been made on the case. It is obvious that the MRT also did not take into account the
approval of the second sponsorship application on 11 September 2001. There is no evidence that the MRT was in fact aware of that decision.
15. The jurisdiction of the MRT is contained in Part 5 of the Migration Act. Division
2 of that part sets out the decisions reviewable by the MRT and divisions 3-6 regulate the exercise of the MRT's powers. It is arguable that the comprehensive statutory
provisions contained in divisions 3-6 go to the jurisdiction of the MRT so that a breach to those requirements is amenable to review before this Court or the Federal Court. That
might be so if the breach were a breach of a requirement made essential by the Act conferring jurisdiction: R v Murray; ex parte Proctor (1949) 77 CLR 387 at 399. As to
what is an essential requirement, guidance was provided by the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at paragraphs
93-100. In addition, the privative clause could be ineffective if the decision could be found to be not made "under" the Migration Act or, possibly, if it involved a breach of the
rules of procedural fairness: Walton v Ruddock [2001] FCA 1839. The former ground of attack may simply be another version of the third limb of the three grounds of review I
derive from Hickman above. In the case of a breach of the rules of procedural fairness a significant issue would be whether, in migration cases, the Migration Act establishes a
code of procedure that does not permit the importation of other procedural obligations. That was an issue upon which the High Court divided in Re MIMA; ex parte Miah (2001)
179 ALR 238, with the majority finding that general law rules of procedural fairness were not excluded. Whether that issue needs to be revisited in the context of the privative clause is a matter of conjecture.
16. That is not a question I have to decide in this case. It is clear from the terms of
the Migration Act and the facts in this case that the MRT was authorised to reach its decision when it did and there was nothing in the Migration Act compelling the MRT,
having reached its decision, to take into account either the applicant's agent's letter dated 30 August 2001, the fax on 31 August 2001 or the fact of the granting of the
business sponsorship application to Tara International on 11 September 2001. The MRT clearly complied with s.359A of the Migration Act. Nothing was received from the
applicant within the time stipulated in the MRT letter of 17 July 2001. It is clear from s.359C(2) that the MRT was in consequence entitled to proceed to make its decision
without further delay or enquiry. Furthermore, pursuant to s.360(2)(c) of the Migration Act the applicant was not entitled to appear and make submissions on 12 September 2001 when the decision was handed down.
17. Mr Young submitted that the MRT had committed a jurisdictional error by failing
to take into account the representations made by the applicant, and the approval of the sponsorship application by Tara International. Mr Young submitted that this was a failure
to take into account relevant considerations which constituted a jurisdictional error: Craig v South Australia (1995) 184 CLR 163 at 179; MIMA v Yusuf (2000)180 ALR 1 at
19. Alternatively, Mr Young, at my suggestion, submitted that the failure of the MRT to await the outcome of the fresh application by Tara International was an unlawful
disappointment of a legitimate expectation: Houcher v MIMA (1990) 169 CLR 648 per McHugh J at pp 678-682. I reject the first submission. The MRT did take into account the
representations made by the applicant. That is clear from exhibit A1. The MRT could not take into account the approval of the second sponsorship application because it was not aware of it.
18. The second submission is not so easy to reject. The representations made by
the applicant were not responded to. The MRT did nothing positive to create an expectation that it would await the outcome of the Tara International application but
neither did it do anything to rebut the expectation that the applicant must have held in the light of that application that someone would reconsider her visa application, based upon
the outcome of the fresh application by Tara International. This is not a case of a party seeking to generate a legitimate expectation by his or her own actions. It is a case of a
legitimate expectation arising by force of circumstances flowing from the actions of a third party (Tara International). In my view, those circumstances created a legitimate
expectation held by the applicant that her visa application would be ultimately determined in the light of the outcome of the fresh application by Tara International. If
that amounted to a jurisdictional error by the MRT, which is at least arguable, then it is necessary to decide whether the privative clause operated to validate the decision of the
MRT notwithstanding that error. It is clear from ss. 359C(2) and 360(2)(c) of the Migration Act that the MRT was not required to await the outcome of the fresh
application by Tara International, although I am inclined to think that it should have. The outcome of that application went to the heart of the matter to be determined by the MRT.
The summary disappointment of the expectation created by that application is strongly indicative of an error of law in my view. More importantly, however, those sections of the
Migration Act relied upon by the MRT to proceed as it did evince a parliamentary intention that an exercise of discretion by the MRT to rely on those provisions, if
otherwise an error of law going to jurisdiction, is not a breach of an essential requirement in the Migration Act. Accordingly, the privative clause in my view operates to validate the MRT decision.
19. Whether, in any event, the information about the sponsorship approval on 11
September 2001 would have had any bearing on the MRT's decision is doubtful, given the decision made by the delegate on 11 September 2001 to refuse the application by
Tara International for nomination of a business activity. It is apparent from recent decisions of the Federal Court: Zhou v MIMA [2000] FCA 1523, Zhou v MIMA [2000]
FCA 1833 and Yan v MIMA [2001] FCA 819 that the failure of a business sponsor to obtain approval of business sponsorship and approval of a nominated business activity
is fatal to a sub class 457 visa application based upon that sponsorship. Clearly the applicant could not on 12 September 2001 have satisfied subclauses 457.223(4)(a) or
(b) of Schedule 2 to the Migration Regulations as they stood on 23 July 1999 when the applicant applied for a visa. The regulations were amended with effect from 1 July 2001
but those amendments do not apply to the applicant. Even if the amendments made with effect from 1 July 2001 had applied, the applicant would still not have met the
criteria as, in either event, there was no approved business activity relating to the visa application. It follows that, even if I were wrong on the question on the operation of the
privative clause, I would not exercise my discretion to grant prerogative relief because it would serve no useful purpose.
20. I conclude, in all the circumstances, on the basis of the material presented to
me, that no statutory jurisdictional error is apparent upon the record of the decision of the MRT. As no other ground of review is open to me in these proceeding I must therefore dismiss the application.
21. I have decided not to make any order for costs in these proceedings. The
application was made shortly after the amendments to the Migration Act commenced operation at a time when the full implications of those amendments may not have been
apparent. At the time the application to this Court was made the applicant was aware that Tara International's second application for sponsorship had been approved which,
in the ordinary course, created a legitimate expectation that her visa application would be reconsidered by someone. The result of that reconsideration would have been the
same, for the reasons that I have already set out and, by reason of the lateness of the fresh application by Tara International and the operation of the privative clause, that
reconsideration did not have to be carried out by the MRT. However, such reconsideration, if it had occurred, would have obviated the need for these
proceedings. The application to this Court was made bona fide and, at the time it was made, it was reasonable for the applicant to believe that the application had fair
prospects of success. This is only the second application heard by this Court since it acquired jurisdiction in migration cases and it is in the public interest that the
jurisdictional issues be clarified. This judgment is a step towards the clarification of those issues and the public interest is therefore served by the decision. Accordingly, I
will make no order as to costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the
reasons for judgment of Driver FM
Associate:
Date: 6 February 2002
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