FEDERAL COURT OF AUSTRALIA Kim v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 815 Judiciary Act 1903 (Cth) s 39B Acts Interpretation Act 1901 (Cth) s 33 Migration Act 1958 (Cth) ss 359, 359A, 359B, 359C, 360, 360A Migration Regulations 1994 (Cth) sch 2 cl 442 GI SUK KIM & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 318 OF 2004 SACKVILLE J SYDNEY 25 JUNE 2004 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 318 OF 2004 BETWEEN: GI SUK KIM FIRST APPLICANT JU YEO SUH SECOND APPLICANT JUN HEOK SUH THIRD APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SACKVILLE J DATE OF ORDER: 25 JUNE 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 318 OF 2004 BETWEEN: GI SUK KIM FIRST APPLICANT JU YEO SUH SECOND APPLICANT JUN HEOK SUH THIRD APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SACKVILLE J DATE: 25 JUNE 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth), challenging a decision of the Migration Review Tribunal ('MRT') handed down on 30 January 2004. The MRT affirmed a decision of a delegate of the respondent ('Minister') that the applicants were not entitled to the grant of Educational (Temporary) (Class TH) visas. 2 There are three applicants, the primary visa applicant and her two children. Since the children's position is dependent on that of their mother, I shall refer to her simply as 'the applicant'. 3 The application filed in this Court was prepared by a solicitor. However, he subsequently filed a notice of withdrawal and the applicant appeared without legal representation. She filed no written submissions. 4 The applicant claimed in her oral submissions that she had not received certain letters sent by the MRT and that she had believed that she would receive notice of a hearing before the MRT. I explained that I could deal with factual claims of this kind only if she gave evidence of them. The applicant accordingly elected to give evidence and was cross-examined by Mr Lloyd, who appeared for the Minister. I refer to the applicant's evidence later. BACKGROUND 5 The applicant is a South Korean national, born in 1965. She arrived in Australia in January 2003 on an Electronic Travel Authority visa, which expired on 28 April 2003. On that day, the applicant applied for an Occupational Trainee visa. One of the criteria for the grant of such a visa is that a nomination in respect of the occupational training has been lodged and has been approved by the Minister: Migration Regulations 1994, sch 2, cl 442.222. Also on that day, Yujin Shine & Twinkle Co ('Yujin') lodged an application to nominate the applicant for an Occupational Training visa. 6 On 6 May 2003, the delegate refused to approve the nomination application and refused to grant the applicant a visa. The applicant then sought review in the MRT of the delegate's decision to refuse to grant her a visa. She stated in the application for review that she would provide 'all the relevant paperworks [sic] later on'. 7 On 5 September 2003, the MRT wrote to the applicant concerning her application for review of the MRT's decision. The letter noted that s 359A of the Migration Act 1959 (Cth) ('Migration Act') provides that the MRT must explain and invite comment on 'particulars of any information that the [MRT] considers would be the reason, or part of the reason, for affirming the decision that is under review'. 8 The letter invited the applicant to comment in writing on the following information: 'The nomination application lodged by your nominator [Yujin] was refused by the Department on 6 May 2003.' The letter stated that this information was relevant to the review because it was necessary for the applicant to have an approved nominator in order to be eligible for an Occupational Trainee visa. The letter invited written comments within 28 days. 9 The letter included the following: 'If you make comments, the [MRT] will consider your comments carefully. If the [MRT] is still unable to make a decision in your favour, it will then provide you with an opportunity to appear before the [MRT]. If the [MRT] does not receive any comments within the period allowed, it may, under section 359C of the Act, make a decision on the review without taking any further action to obtain your comment. In addition, you will not be entitled to appear before the [MRT].' 10 On 14 October 2003 (as the Minister accepted, within the permitted time, having regard to the deemed date of notification of the letter of 5 September 2003), the applicant replied. Apart from formal matters, the letter was as follows: 'I think our company already provided sufficient information to the department of immigration that it may assess our company's financial ability and details to cover most of the information requested by DIMIA. Please review the decision not to approve the nomination application lodged by my nominator first.' 11 On 17 October 2003, the MRT wrote to the applicant asking her to advise it in writing, within 14 days, whether she wished to attend the MRT for a hearing in the matter. No response was received to that letter. On 7 November 2003, an officer of the MRT telephoned the applicant at the number provided on her application form, but found that it was not a current number. 12 On 12 November 2003, the MRT wrote to the applicant as follows: 'The Tribunal requires you to provide further information so that the Tribunal can review the decision by the Department not to approve the nomination application lodged by your nominator. The information you are required to provide is as follows: · The documents and statements requested on the attached form; and · A completed Form 442 (attached). You are invited to provide the requested information, in writing, within 28 calendar days of the date of notification of this invitation. As this letter has been posted, you will be considered to have been notified of this invitation 7 working days after the date of this letter. Please note that "working days" do not include weekends or public holidays. If you are unable to provide the requested information within this period, you may request in writing that you be allowed additional time in which to respond. Such a request would need to include reasons for the extension and to be received before the end of the above period. The Tribunal will consider any request for an extension carefully, and advise you, in writing, whether an extension of time has been granted.' The letter concluded with the standard warnings that had been included in the letter of 5 September 2003 and that have been set out in [9] above. 13 The applicant also made no response to this letter. 14 The MRT proceeded to make its decision on the documents. No further invitation was extended to the applicant to attend a hearing. legislation 15 The relevant provisions of the Migration Act are as follows: '359 Tribunal may seek additional material (1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. (3) Without limiting subsection (1), the Tribunal may invite a person to give additional information. … 359A Applicant must give certain information (1) Subject to subsection (2), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. … (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) … (c) … 359B Invitation to give additional information or comments (1) If a person is: (a) invited under section 359 to give additional information; or (b) invited under section 359A to comment on information; the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances. (2) If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period. … 359C Failure to give additional information or comments (1) If a person: (a) is invited under section 359 to give additional information; and (b) does not give the information before the time for giving it has passed; the Tribunal may make a decision on the review without taking any further action to obtain the additional information. (2) If the applicant: (a) is invited under section 359A to comment on information; and (b) does not give the comments 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. 360 Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) … (b) … (c) subsection 359C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 360A Notice of invitation to appear (1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. (2) The notice must be given to the applicant: (a) …by one of the methods specified in section 379A; or (b) …' THE MRT'S DECISION 16 The MRT recounted the history of the matter. In doing so, it referred to the letter of 12 November 2003 as 'inviting the visa applicant to provide comments on information that the [MRT] considered would be the reason, or a part of the reason, for affirming the decision under review'. Mr Lloyd, who appeared for the Minister, accepted that this was a mischaracterisation of the letter, since the MRT erroneously implied that the letter had been sent pursuant to s 359A of the Migration Act. Mr Lloyd also acepted that the MRT should have characterised the letter as an invitation pursuant to s 359(2) of the Migration Act to provide further information. 17 The MRT said that as the applicant had failed to provide comments or information as requested within the prescribed time frame, it had proceeded to make a decision, without taking any further action, pursuant to s 359C of the Migration Act. 18 The MRT recorded that cl 442.222 of sch 2 of the Migration Regulations required the application to be supported by a nomination in respect of the occupational training that had been lodged and had been approved by the Minister. The MRT pointed out that the nominator had lodged a nomination in relation to the application, which was later refused by the delegate. Without an approved nomination, the MRT considered that the applicant could not meet the requirements of cl 442.222 and that therefore the application could not succeed. 19 The MRT then observed that, according to 'Principal Member Advice', decisions to refuse nominations for occupational training are reviewable and should be reviewed as part of the visa decision. The MRT said that, in the case of the decision under review, it was the refusal to approve the nomination of the proposed occupational training that constituted the issue in dispute. 20 The MRT found that the nomination had been lodged on the correct form as required by Migration Regulations, reg 1.13. The MRT then quoted the guidelines laid down in the Procedures Advice Manual 3 ('PAM 3'), relating to the assessment of Subclass 442 nominations. The MRT pointed out that, in assessing whether the nominee was a genuine occupational trainee, Departmental policy stated that the MRT must consider whether the proposed training constituted 'occupational training' as defined. Departmental policy defined occupational training as training that is workplace based rather than classroom based, and that is designed specifically to increase a person's skill level in their occupational area of expertise. 21 The MRT reasoned as follows: '26. There is very little evidence on the files as to what the training programme would consist of. The visa application referred to marketing training. The only information attached to the application was some promotional material in relation to Steam Jet Car Wash. There was no information provided as to what training the visa applicant would receive; who would do the training; how the training would be provided and the length of that training. On 5 September 2003 and 12 November 2003 the [MRT] wrote to the visa applicant requesting further information, including detail as to the training provided by the nominator. No further information was provided. 27. There is no evidence or detail as to the training that the nominator will provide or evidence that occupational training opportunities to Australian residents will not be adversely affected. Without any detail or evidence in relation to the training of the visa applicant the [MRT] cannot find that the nomination should be approved as the [MRT] finds that the nomination for an occupational trainee visa does not satisfy the criteria in clause 442.223. 28. In light of the above findings the [MRT] also finds, due to the lack of evidence, that the visa applicant is not subject to an approved nomination and is not a genuine applicant for entry to Australia as an occupational trainee, as the visa applicant does not meet the criterion in clauses 442.222 and 442.224. 29. As the visa applicant cannot meet the criterion in either clause 442.222 or 442.224 then the secondary applicants cannot meet criterion in clause 442.321 as it requires that they be members of the family unit of an applicant who has satisfied primary criteria.' 22 For these reasons, the MRT considered that it had no alternative but to affirm the decision under review. THE APPLICANT'S ARGUMENTS 23 The arguments raised by the application filed in this Court appear to be as follows: (i) In its letter of 5 September 2003, the MRT undertook to provide the applicant with an opportunity to appear before it, subject to the applicant making comments on the information contained in the letter. The applicant had made such comments, however briefly, and she was entitled to assume that there would be a hearing. The application claims that the MRT had 'elected to hold a hearing', but subsequently changed its mind. The applicant is said to have been misled by the conduct of the MRT, believing that she was entitled to provide all further information that might be required at the hearing. (ii) Having made the 'election' contained in the letter of 5 September 2003, it was not open to the MRT to revoke that election. (iii) The MRT had characterised its letter of 12 November 2003 as one 'inviting the…applicant to provide comments on information that the [MRT] considered would be the reason, or part of the reason, for affirming the decision under review'. The letter of 12 November 2003, however, contained no such invitation. THE APPLICANT'S EVIDENCE 24 The applicant acknowledged in evidence that she had received the MRT's letters of 5 September 2003 and 12 November 2003. She denied, however, that a blank Form 442 had been attached to either letter. She also denied receiving the letter of 17 October 2003. 25 The applicant claimed that she had not replied to the MRT's letter of 12 November 2003, because she thought that it was substantially the same as the letter of 5 September 2003. She also claimed that following receipt of the letter of 5 September 2003, she had formed the view that she would be invited to a hearing of the MRT and that she had assumed that such an invitation would be forthcoming. 26 In evaluating the applicant's evidence it is necessary to take account of the difficulties she seemed to experience in responding to questions translated by an interpreter. (I mean no criticism of the interpreter.) Nonetheless, I found her evidence to be vague, contradictory and, on some matters, manifestly incorrect. Except insofar as her evidence is uncontentious, contrary to her interests or is supported by contemporary documentation, I cannot regard it as reliable. 27 In the event, the applicant's own evidence made it clear that her principal claims were inaccurate. She said that her denial that she had received certain documents from the MRT was based on information from a solicitor. But it became clear that the information to which she was referring concerned documents that the solicitor had told her were missing from the 'Green Book' prepared for the Court hearing and that this advice was provided to her after the MRT's decision was handed down. It also became clear that any belief she may have had about the MRT hearing was also based on information conveyed to her by the solicitor after the MRT's decision. 28 I find that the applicant received each of the letters sent to her by the MRT, including the attachments, and that the contents of the letters were explained to her, probably by Mr Heo (a person who apparently assisted her). In particular, I find that the applicant received and understood the contents of the letter of 12 November 2003. The applicant may have believed that by replying on 13 October 2003 to the MRT's letter of 5 September 2003, she would have an opportunity to appear before the MRT. However, I find that she retained no such belief after receiving the letter of 17 October 2003. In any event, the applicant clearly understood, once she received the letter of 12 November 2003, that she would not be entitled to a hearing if she did not forward the information requested in that letter. Despite this, the applicant simply ignored that letter. reasoning 29 The applicant's claim that she had been misled by the MRT into believing that she would be notified of a hearing date fails on the facts. Whatever she thought beforehand, on receipt of the letter of 17 October 2003 the applicant understood that if she did not request a hearing, the MRT might not provide one. More particularly, she knew from the letter of 12 November 2003 that if she did not provide the information requested, the MRT might proceed to a decision without taking any further action and that she would not be entitled to appear before the MRT. 30 If the correspondence had ceased with the applicant's letter of 13 October 2003, and the MRT had proceeded to make a decision without holding a hearing, the applicant may have had grounds for complaint. As Mr Lloyd pointed out, the applicant's letter of 13 October 2003, did not provide the information requested by the MRT. He submitted that the terms of s 359C(1)(b) were thereby satisfied and that the MRT was empowered by ss 359C(1) and 360(1) to make a decision on the review without holding a hearing. 31 The MRT's letter of 5 September 2003 is not a model of clarity. It may well be open to the reading that if the applicant made any comment at all (whether or not she provided the requested information), she would be given an opportunity to attend a hearing. Whether the failure to provide a hearing in these circumstances would constitute a denial of procedural fairness and a jurisdictional error would depend, among other things, upon the effect of s 357A(1) of the Migration Act, which states that Div 5 of Part 5 'is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with'. 32 It is not necessary to resolve this issue. The fact is that the MRT's letter of 12 November 1993 invited the applicant to provide further specified information and she failed to do so within the time limit or indeed at all. The invitation was extended to the applicant in accordance with s 359 of the Migration Act. Since the applicant did not give the additional information, the MRT was empowered to make a decision on the review without taking further action to obtain the additional information: s 359(1). Nor was the MRT under any obligation to invite the applicant to appear before it and she had no entitlement to appear: s 360(2)(c), (3). 33 I do not think that the MRT can be said to have made some sort of 'election' to provide a hearing in the letter of 5 September 2003. Having regard to the terms of the letter, the MRT may have denied the applicant procedural fairness if it did not offer her a hearing following her response to the letter. However, as I have explained, any possible unfairness was overcome in this case by the subsequent correspondence. 34 Moreover, there is nothing in the legislation that suggests that the MRT can exercise the power conferred by s 359, or discharge the duty imposed by s 359A, on one occasion only. On the contrary, the power may be exercised and the duty must be performed from time to time as occasion requires: Acts Interpretation Act 1901 (Cth), s 33(1). Thus there was nothing to prevent the MRT requesting the applicant to provide additional information, or complying with its obligation to give her particulars of information that would be the reason, or part of the reason, for affirming the decision under review. If the MRT took such a course, the Migration Act specified the consequences for the applicant's entitlement to a hearing. 35 As Mr Lloyd accepted, the MRT wrongly characterised the letter of 12 November 2003 as one sent pursuant to s 359A, rather than s 359 of the Migration Act. However, this slip does not amount to a jurisdictional error. Under the terms of the Migration Act, the applicant had no entitlement to appear before the MRT. The MRT's mistaken description of the letter cannot alter the fact that by statute the applicant's failure to provide the additional information requested deprived her of any entitlement to appear at a hearing before the MRT. 36 None of the applicant's contentions succeed. The application must be dismissed. The applicant must pay the Minister's costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 25 June 2004 The applicant appeared in person. Counsel for the Respondent: S Lloyd Solicitor for the Respondent: Clayton Utz Date of Hearing: 23 June 2004 Date of Judgment: 25 June 2004