Tanddy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 29

FEDERAL COURT OF AUSTRALIA

Tanddy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 29 JUSTICE TANDDY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 547 of 2003 MANSFIELD J 30 JANUARY 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.547 OF 2003

BETWEEN: JUSTICE TANDDY

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 30 JANUARY 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application to quash a decision of the Migration Review Tribunal (the Tribunal) given on 30 April 2003. The Tribunal affirmed a decision of a delegate of the respondent given on 12 December 2001 that the applicant is not entitled to the grant of a Temporary Business Entry (Class UC) Subclass 456 (Business (Long Stay)) visa (the visa). 2 The applicant applied for the visa on 6 July 2001. On 24 October 2003 the respondent by motion sought an order summarily dismissing the application under O 20 r 2 of the Federal Court rules on the ground that the application had no prospect of success. That motion was heard on 18 December 2003. On the motion, I dismissed the applicant's application. This judgment includes the reasons for that decision. I also made an order that the applicant pay to the respondent costs of the application. 3 At the time the respondent also sought an order that the solicitor for the applicant pay the respondent's costs of the application, or alternatively pay those costs from 5 August 2003 (being two months after the filing of the application). Submissions on that issue have since been exchanged. This judgment deals also with that application.

4 It is plain that the application should not be summarily dismissed except in the very clearest of cases. The power to summarily dismiss an application should be exercised with great caution and only when it is clear that there is no real question to be tried. See generally Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Salemi v MacKellar (No 1) (1976) 137 CLR 388, Webster v Lampard (1993) 177 CLR 598. 5 To address the respondent's contention that there is plainly no prospect of the application succeeding, it is necessary to identify the basis of the Tribunal's decision, and the grounds upon which the applicant sought to quash it. Counsel for the applicant acknowledges that, under the relevant provisions of the Migration Act 1958 (Cth) (the Act), the jurisdiction of the Court is relevantly confined to that available under s 39B of the Judiciary Act 1903 (Cth), so the decision of the Tribunal can only be quashed if its decision was made by reason of jurisdictional error on its part. 6 The visa is one of the prescribed classes of visa under s 31 of the Act. Relevantly, Regulation 2.03 of the Migration Regulations provides for certain criteria to be satisfied in respect of a particular visa application before the visa sought can be granted. If the specified criteria are not satisfied in the view of the decision-maker (whether the delegate or, on review the Tribunal), the decision-maker is required by s 65 of the Act to refuse the application. If they are satisfied in the mind of the decision-maker, the decision-maker is required by s 65 of the Act to grant the application. 7 Relevantly for present purposes cl 457.22 prescribes criteria to be satisfied for the grant of the visa at the time of the decision of the delegate, and on review the Tribunal. Clause 457.223(1) in Sch 2 to the Regulations requires the applicant to meet the requirements of one of a series of subclauses. It was not in issue that the subclause which the applicant claimed to meet so as to be eligible for the visa was subcl (4). Clause 457.223(4) relevantly provides: '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) a pre-qualified business sponsor; or (ii) a standard business sponsor; and (c) the applicant is nominated, in accordance with approved form 1068, in relation to the activity by the employer; …' 8 The proposed employer of the applicant was not however an approved business sponsor. The Tribunal notified the applicant of that difficulty. On 11 February 2003 a hearing was conducted, in which the applicant indicated he was working and would seek a new sponsorship. The Tribunal allowed him extra time for his then employer to lodge a standard business sponsorship and nomination. The applicant on 25 February 2003 wrote to the Tribunal. He indicated that a decision had been made by his then employer to undertake his sponsorship, and he asked for a further extension 'to give me enough time to lodge these papers without rushing my employers'. By letter of the following day, 26 February 2003, the Tribunal indicated that it would allow the applicant a further month from the date of that letter to provide evidence of lodgment of the application for approval as a business sponsor. Presumably the Tribunal had in mind that, depending upon the progress of such application, the visa application might be further adjourned pending its outcome. Nothing further was heard from the applicant. The month passed. On 30 April 2003 after the effluxion of yet a further month, the Tribunal reached a conclusion. 9 As the applicant's employer had not been approved as a business sponsor, the applicant did not meet the relevant criteria for the visa specified in cl 457.223(1) and (4) of Sch 2 to the Regulations. Consequently, as required by s 65 of the Act, the Tribunal affirmed the decision of the delegate not to grant to the applicant the visa. 10 The Tribunal's decision was quite straightforward. Having allowed the applicant time to respond to its concern that there was no authorised business sponsor supporting his application, and having heard nothing further from the applicant, it simply found that the specified criterion was not met. It was therefore obliged by s 65 of the Act to affirm the decision not to grant to him the visa. 11 The application under s 39B of the Judiciary Act 1903 (Cth) sought orders quashing that decision. The identified grounds are general in nature, and do not contain any particularity. In this matter, following the notice of motion, the solicitor for the applicant presented a proposed amended application for review. It slightly refined those general grounds and included particulars of them. The particulars are confined to whether or not the applicant was accorded procedural fairness in the conduct by the Tribunal of its review. The respondent does not dispute that the Tribunal was obliged to accord procedural fairness to the applicant in the conduct of its review, or that the failure to do so may give rise to jurisdictional error on its part: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (Plaintiff S157/2002). 12 The particulars refer to the applicant's work history, and his request for an extension of time to secure an employer to provide a standard business sponsorship and nomination in support of his application. They refer to the course of communications, as recorded in the Tribunal's reasons, without indicating any dispute about them. They then assert that the extension of one month granted by the Tribunal on 26 February 2003 was not adequate in the circumstances, because the applicant to the Tribunal's knowledge had only recently changed employer, and it was or should have been clear to the Tribunal that the process of that employer securing approval as a business sponsor would take longer than one month. Consequently, it is contended, the Tribunal by not granting the applicant an extension of time greater than one month denied him procedural fairness. It is also asserted that the Tribunal failed to accord him procedural fairness by not inquiring from him at the expiration of the month extension which it had allowed why he had not met the one month extension deadline. As noted, the Tribunal made no such inquiry but allowed yet a further month to elapse before making its decision. 13 The applicant also filed an affidavit sworn on 15 December 2003. It refers consistently to the history of his communications with the Tribunal, to the circumstances in which he had no business sponsor and the arrangements he was making to secure one. Additionally it provides an explanation of why the documents were not lodged within the one month deadline. He says: 'Then my manager quit his job and a new manager was appointed at the place where I worked. I then told the whole story to the new manager and the new manager started to chase up getting the documents back from Brisbane. The documents finally arrived in Sydney but the one month deadline had already passed. I did not apply for an extension of the one month deadline because I was not aware that I could apply for another extension and I had asked for enough time to lodge the documents without rushing my employer.'