Premkumar v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 885

FEDERAL COURT OF AUSTRALIA

Premkumar v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 885 MALATHI PREMKUMAR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 982 OF 2005 EMMETT J 24 JUNE 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD679 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MALATHI PREMKUMAR

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 24 JUNE 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. 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 NSD679 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MALATHI PREMKUMAR

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 24 JUNE 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant entered Australia on 24 December 2000 on a Short Stay (Visitor) (Class TR) Visa Subclass (Tourist Short Stay) Visa. On 6 March 2001, the appellant was granted a tourist (Long Stay) Subclass 686 Visa. On 4 June 2001, she lodged an application for a Temporary Business Entry (Class UC) Subclass 457 Business (Long Stay) Visa. That application was refused by a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister'), on 22 January 2002. 2 On 15 February 2002, the appellant lodged an application to the Migration Review Tribunal ('the Tribunal') for review of the delegate's decision. On 24 July 2003, the Tribunal affirmed the decision of the Minister's delegate not to grant a visa. On 25 August 2003, the appellant commenced a proceeding in the Federal Magistrates Court seeking Constitutional writ relief in respect of the decision of the Tribunal. On 13 April 2005, the Federal Magistrates Court ordered that the proceeding be dismissed with costs. On 3 May 2005, the appellant filed notice of appeal from those orders to the Federal Court of Australia. The Chief Justice has directed that the appeal be heard by a single judge. 3 The appellant claims that the decision of the Tribunal was affected by a denial of procedural fairness that constituted jurisdictional error on the part of the Tribunal. She seeks orders that the decision be quashed and that the Tribunal rehear and determine the application for review according to law. She contends that, because the decision involved jurisdictional error, it was not a decision under the Migration Act 1958 (Cth) ('the Act') and, accordingly, is not a privative clause decision within the meaning of s 474 of the Act. It would follow that the prohibition in s 474(1) on judicial review of decisions made under the Act does not apply to the Tribunal's decision. The Minister accepts that, if there were a denial of procedural fairness on the part of the Tribunal, the appellant would be entitled to the relief claimed. 4 Under clause 457.223 in Schedule 2 to the Migration Regulations 1994 made under the Act ('the Regulations'), one of the criteria for the grant of a Business (Long Stay) (Subclass 457) Visa that must be satisfied at the time of decision is that the applicant meets the requirements of one of the subclauses of clause 457.223. The relevant requirement for present purposes is that: * 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 * the employer is a standard business sponsor. 5 The record of 22 January 2002 of the delegate's decision indicates that the appellant's visa application was refused because the requirement of clause 457.223 was not met. In her visa application, the appellant specified Bombay Bloomers as her employer for the purposes of satisfying that requirement. However, at that stage, Bombay Bloomers was not a standard business sponsor. Accordingly, on 4 June 2001, the day on which the appellant lodged her visa application, Bombay Bloomers applied for approval as a business sponsor. On 22 January 2002, the Minister's delegate also refused the application by Bombay Bloomers and, on 15 February 2002, Bombay Bloomers lodged a valid application to the Tribunal for review of that decision. 6 On 7 March 2003, the Tribunal wrote to the appellant. The letter said that s 359A of the Act requires that the Tribunal must explain, and invite comment on, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. The letter invited the appellant to comment on the following: 'You appear to have made claims against Sponsorship by Australian business stream of subclass 457 visa. This stream requires that your employer has been approved as a business sponsor and has in place an approved business nomination to support your application by the time this Tribunal comes to make its decision. There is no evidence that your employer has been approved as a business sponsor, nor that your application is supported by an approved business nomination. The Tribunal notes that the decision to refuse approval as a business sponsor for Bombay Bloomers is the subject of an application for review currently before the Tribunal. If this application is not successful and there is no other approved business sponsorship, the Tribunal will ultimately have no alternative but to affirm the decision to refuse the application for a subclass 457 visa under that stream.' The letter went on to say: 'If you make comments, the Tribunal will consider your comments carefully. If the Tribunal is still unable to make a decision in your favour, it will then provide you with an opportunity to appear before the Tribunal.