Hu v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 299

FEDERAL COURT OF AUSTRALIA

Hu v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 299 JOO SUNG HU AND ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1442 of 2005 ALLSOP J 31 MARCH 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1442 of 2005

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN: JOO SUNG HU

FIRST APPELLANT

SINAE NHO

SECOND APPELLANT

EUNICE HU

THIRD APPELLANT

CHAN HU

FOURTH APPELLANT

JOON HU

FIFTH APPELLANT

WON HU

SIXTH APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 31 MARCH 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The first appellant 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 NSD 1442 of 2005

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN: JOO SUNG HU

FIRST APPELLANT

SINAE NHO

SECOND APPELLANT

EUNICE HU

THIRD APPELLANT

CHAN HU

FOURTH APPELLANT

JOON HU

FIFTH APPELLANT

WON HU

SIXTH APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 31 MARCH 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from orders made by the Federal Magistrates Court on 28 July 2005 dismissing an application for review of a decision of the Migration Review Tribunal (the 'Tribunal') made on 23 July 2003. The Chief Justice has made a direction under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appellate jurisdiction of the Court in relation to the appeal be exercised by a single Judge of the Court. 2 The appellants are a Korean national (Mr Hu) and his wife and family. The appeal was conducted by Mr Hu on his own and on his family's behalf. 3 The notice of appeal contains the following in handwriting under the heading "Grounds" There was serious mishandling of my documents at DIMIA. There were also confusion among the case officers about my application for 457 visa. Ms Sharon Kennedy, Mr Ralph Harwood, Mr Carlose Sellaness and Mr Dennis Salmon were my case officers. Even MRT admits that there may have been some confusion as to the correct address for correspondence and that papers may have been mislaid. And some irrelevant papers were mixed with my documents (Refer to MRT decision, 20). Whether or not the tribunal fell into jurisdiction error by not reviewing the decision made on 18 June 2001 by the same delegate to refuse KTN approval as a standard business sponsor was not sole question raised to the court. I already contended at MRT that DIMIA sent decision letters to wrong addresses and it must be responsible for not lodging sponsorship application with MRT. Moreover Ms Denise Salman mentioned that the applicant was requested to provide further information regarding training (folio 218). The applicant did not respond to the request. But I cannot find this folio 218 in the Green book. She needs to clarify when and where she sent the relevant letter MRT must review my application again with sponsorship application. 4 The notice of appeal had annexed to it the first page of the record of decision of the delegate with handwriting on it. I have annexed a scanned version of this page to the end of these reasons. 5 The following can be discerned from the notice of appeal. First, that the appellants complain about mishandling of applications which concerned them by officers of the Department. Secondly, they complain that the Tribunal fell into error by not reviewing another and related decision made by the same delegate. Thirdly there was an asserted controversy over a document referred to as folio 218. 6 It is best to start at the beginning. 7 On 18 June 2001, a delegate of the Minister, a Ms Salman, made two decisions. The first was to refuse the application of Korean TV Network Pty Ltd (to which I will refer as "Korean TV") for approval as a business sponsor. The second was to refuse the application of the appellants for the grant of a Temporary Business (Class VC) visa. 8 Both decisions had the same file number (N98/396627). 9 Korean TV had been an established and registered business in Australia since 1996. The criteria in the regulations for approval as a business sponsor included the following from Regulation 1.20D. The Minister is satisfied that the applicant for approval: will introduce to, or utilise or create in, Australia new or improved technology or business skills; or has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia; and 10 The reasons of the delegate for refusal of the application were short and straightforward: The applicant was requested to provide further information regarding training (folio 218). The applicant did not respond to the request. From the information submitted, the sponsor has not provided information to indicate and demonstrate that new or improved technology will be introduced or utilised through the employment of business temporary entrants. The sponsor has not provided evidence to demonstrate a satisfactory record of, or sufficient evidence of a commitment towards training. The sponsor has not demonstrated that the business satisfied the requirements of regulation 1.20D(2)(c), therefore, the business does not satisfy this requirement. … An applicant must meet all criteria of Migration Regulation 1.20D(2)(c) in order to be approved as a business sponsor. As the applicant has failed to meet the criteria at one of the sub regulations the applicant cannot meet the criteria for approval as a business sponsor. I have not therefore assessed the applicant against other criteria of Migration Regulation 1.20D(2). 11 The delegate then dealt with the appellant's visa application. In the record of the decision the delegate referred tot eh fact that the visa application was accompanied by an application for approval as a business sponsor by a business operating in Australia. This was Korean TV. The delegate noted that this application had been refused. The delegate then examined the position of the appellants against the criteria in the relevant regulation (Regulation 457.223). Two of the criteria which were not satisfied were referable to Mr Hu's employment by an "approved business sponsor". Korean TV's application to be such had been refused. 12 Before examining how the Tribunal dealt with the review I should set out a number of matters. First, the application form filled out by Korean TV named "Jae Won Byun" of Level 8 South Tower, 1 Railway Street Chatswood, NSW as the person to be contacted. 13 On 21 May 1998, a Ms Kennedy from the Department had written to Jae Won Byun asking for further information. The copy of this letter in the relevant documents both before the Federal Magistrate bears the number "219". 14 In the Department's file folio 218 was a letter in the same from as document 219, addressed to Jae Won Byun at the same address, although it concerned not Mr Hu (as document 219 did) but rather another person. This was posed before me by an affidavit of Ms McLaughlin of Blake Dawson Waldron. I ordered this affidavit to be filed after the hearing began in December 2005 when Mr Hu expressed a high degree of concern about this document. The document identified as folio 218 by Ms McLaughlin had written in hand on it an address, telephone number and facsimile number which, I take it, related to the person with whom folio 218 was concerned. 15 This letter was apparently replied to by Korean TV which sent over 60 pages of material. 16 On 18 June 2001 Ms Salman sent the two records of decision to Mr Jae Wan Byau and Mr Hu under cover of two letters, both of which referred to the rights of review to the Tribunal. Both letters were sent to Suite 2 11-15 Florence Street Hornsby NSW 2077. One of them, the letter to Mr Jae Won Byun was retuned to the Department. Another copy of the letter to Mr Hu was sent to him at his residential address. 17 There is a note on the Department's file dated 29 September 1998 that Mr Jae Byun called to tell of the new address for Korean TV – Suite 2 11-15 Florence Street Hornsby 2077. Thus three letters appear to have been sent to the correct address. 18 Further correspondence took place between the Department and Korean TV in late 1998 and early 1999. 19 On 30 July 1999 Mr Byun sent a facsimile to the Department in which he reminded it of Korean TV's change of address to Hornsby and also gave details of Mr Hu's residential address. 20 I turn to the Tribunal's dealing with the matter. The only application for review before the Tribunal was that of Mr Hu and his family. There was no application for review by Korean TV. 21 The Tribunal recounted the facts concerning the sending of the letters of notification on and after 18 June 2001. It then continued: There is no application for review before the Tribunal in respect of the decision not to approve the proposed employer as a business sponsor. Such decisions are reviewable by the Tribunal but only if a valid application for review is made by the proposed employer (see sections 338 and 347 of the Act and regulation 4.02 of the Regulations). The time limit for seeking such a review has now expired. The visa applicants were sent a letter by the Tribunal on 20 March 2003 by the Tribunal inviting them to comment o information that the Tribunal considered would be a reason or part of reason for affirming the decision under review. That information was that the primary visa applicant's proposed employer was not approved as a business sponsor. The primary visa applicant responded to the invitation stating that his case had been complicated and had taken a long time to process. Documents were missing and the proposed employer had not received any notification that the application for approval as a business sponsor had been refused and so was not able to lodge its application for review in time. The Tribunal invited the visa applicants to appear before it to give evidence and to present arguments in relation to their case. The visa applicants did not appear before the Tribunal at the scheduled time. The Tribunal contacted the primary visa applicant to ask if he proposed to attend the hearing. The primary visa applicant stated that he did not receive the letter inviting him to appear before it. The Tribunal then invited the primary visa applicant to appear before it on 27 June 2003. The primary visa applicant attended and gave evidence as follows. He was working for his original sponsor, Dunown Event Company as the Marketing Director. The Korean TV Network Pty Ltd was associated with his present sponsor. The company was not very active at present because business was slow. The application for approval as a business sponsor and his visa application had been lodged in 1998. The Department had lost papers from the file and three different case officers had been in charge of it. He had notified the Department of the sponsor's change of address to Macquarie Street, Parramatta, but the Department had not recorded the change properly and had sent the notification of the sponsorship refusal to the previous address. Consequently his sponsorship had never been notified that the sponsorship was refused. He had thought that the review of the visa refusal could also review the sponsorship refusal and find out what had happened in the processing of the case. Neither his current employer nor his proposed sponsor has lodged any other applications to be approved as a business sponsor. 22 In its findings and reasons the Tribunal pointed out that an essential criterion for the grant of a visa was that the proposed employer was an approved business sponsor. Korean TV was not. Its application had been refused. Nor was Mr Hu's current employer and approved business sponsor. 23 The Tribunal concluded that the visa must be refused in these circumstances. It made the following concluding remarks: The primary visa applicant has given evidence that the decision on the sponsorship was not properly notified. He complains that this was the reason why the sponsor did not apply for a review as well. The Tribunal accepts that there may have been some confusion as to the correct address for correspondence and that papers may have been mislaid. Only the file relating to the sponsorship was supplied to the Tribunal. That file contains some papers that do not appear to relate to the application for approval as a sponsor. There is no record of the notification of the last address for service of the sponsor that the primary visa applicant states was notified to the Department. However even if the sponsor was not adequately notified, the primary visa application was notified of the reasons for the refusal of the visas in the decision record that he received. Neither Korean Television network or the primary visa applicant's current sponsor have taken steps to apply for approval as a business sponsor again or to approach the Department concerning the sponsorship notification. The visa applicants were not represented and do not appear to have sought professional advice from a registered migration agent. 24 The grounds asserted in the application for review were as follows: (i) Paragraph 65(1)(a)(ii) of the Migration Act 1958 (the Act) required the First Respondent to make a determination as to whether the criteria other than health criteria relating to the visa application ("the primary application"), the rejection in respect of which (the primary decision) was the subject matter of the Tribunal's purported review leading to the decision, were met. (ii) Section 348 of the Act required the Tribunal to review the primary decision and to that end s 349 of the Act vested the Tribunal with all the powers and discretions conferred by the Act on the First Respondent. (iii) In order to discharge its obligations under the said sections the Tribunal was required to make findings as to whether the business known as Korean Television Network ("KTN") should be approved as a business sponsor under regulation 1.20D of the Migration Regulations as they stood on 11 March 1998 (the title of the regulations was amended by the Migration Amendment Regulations 1998, Statutory Rules 322 of 1998, to the "Migration Regulations 1994" later in 1998) (the "Regulations"). (iv) In order to make the said determination it was necessary for the Tribunal to carry out a review and make findings in respect of the criteria specified in subregulation 1.20D(2) of the regulations. (v) The Tribunal carried out no such review and made no such findings, purporting instead to adopt a finding ("the KTN finding") in respect of such criteria allegedly made in a separate decision by the First Respondent on 18 June 2001. (vi) Further and in the alternative, the original applicants were persons to whose application the said separate decision of 18 June 2001 related and they were entitled to have the KTN finding reviewed as part of the Tribunals' review. (vii) Further and in the alternative, the regulations which after 11 March 1998 amended regulation 4.02 of the regulations would, if given effect, operate soas to deny the original applicants contingent review rights which they enjoyed prior to the date of the notification of the said amending regulations or would, by imposing additional review application fees, operate so as to disadvantage them, and are therefore (on either basis) of no effect pursuant to subsection 48(2) of the Acts Interpretation Act 1901. 25 The Federal Magistrate in his reasons recorded the acceptance by Mr Hu that he did not satisfy a relevant and essential criterion. The Federal Magistrate posed the question before him as follows: The sole question before me was whether or not the Tribunal fell into jurisdictional error by not reviewing the decision made on 18 June 2001 by the same delegate to refuse KTN approval as a standard business sponsor. No application for review of the sponsorship decision had been made within time (or probably at all) by KTN. The applicant contends that no such application was necessary because he had an "accrued right" when he lodged his application for the visa on 11 March 1998 for any decision ultimately refusing the sponsorship application to be reviewed by the Tribunal as part of his own application. 26 The Federal Magistrate reviewed the relevant legislation dealing with review of decisions such as that concerned with Korean TV's application. Regulation 4.02(4)(a) first made in 1999 gave express recognition (for the first time) to a decision when Regulation 1.20D (as to a business sponsorship application) as an "MRT reviewable decision". Prior to that such decisions had only been reviewable informally pursuant to administrative arrangements, which were described in Handa v Minister for Immigration and Multicultural Affairs [2000] FCA 1830. The Federal Magistrate summarised Mr Hu's argument at [8] of his reasons: 8. The applicant´s case is that the new Regulation 4.02(4)(a) whilst appearing to operate so as to enhance the rights available to an applicant by making available a formal right of review to the MRT in respect of an adverse sponsorship decision, in fact imposed constraints on an applicant by requiring the lodgement of a second MRT review application and the payment of an additional fee in respect of that application. The right of a visa applicant to have the whole of his visa application, both sponsorship and application itself, reviewed at the one time for the one fee was lost. This disadvantage to the applicant would thus be contrary to s.50 of the Acts Interpretation Act. But it seems to me that the Migration Amendment Regulations (No 4)1999 did not have the effect of repealing regulations which conferred a right to a hearing. Those regulations actually created the right whereas previously there was only a practice. In order for this new right to be exercised a fee was required. But that did not disadvantage the applicant because he had not right beforehand, at best he had a legitimate expectation that both visa applications would be dealt with at the same time for the payment of only one fee. 27 The Federal Magistrate at [9] and [10] rejected the argument based on legitimate expectations and otherwise in the following terms: It is now well established that a legitimate expectation will not necessarily create a duty to grant a right. In Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 McHugh J at [305] said: "The doctrine of legitimate expectations is concerned with procedural fairness and imposes no obligation on a decision-maker to give substantive protection to any right, benefit, privilege or matter that is the subject of a legitimate expectation." Mason CJ and Deane J expressed the same view and added at [291]: "The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law." Subsequent decisions of both the High Court and the Full Federal Court have confirmed this approach: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (16 November 2000); Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. The respondent argues also that even if a right did exist on 11 March 1998 and the Migration Amendment Regulations (No 4) 1999 operated as repeal within s.50 "the scheme created by those regulations is inconsistent in such a right and manifests a contrary intention". I am of the view that the Tribunal was correct in determining that an application for review of a decision by the sponsor was required to be made by the sponsor within the time limits provided. There being no such application there was not in existence at the time of the review of the applicant´s visa application the required nomination. Thus the Tribunal´s decision to affirm the decision of the delegate was correct. I dismiss the application and order that the applicant pay the respondent´s costs which I assess in the sum of $4,000. 28 I have earlier set out the grounds of the notice of appeal. Mr Hu filed a submission. It directed itself to folio 218 and the irrelevance of the handwritten note. This, he said, meant that the whole process of his visa application must begin again. 29 Mr Hu submitted that Korean TV had sent the information requested in May 1998 (requested as to him in folio 219) in January 1999. 30 Further Mr Hu complained about irrelevant documents on the file. 31 There may have been a legitimate ground to review the decision concerning Korean TV. There may have been a less than competent handling of the file. (Though, I draw no such conclusions.) 32 What is clear is that the reasoning of the Tribunal was intractable. An essential criterion for Mr Hu's visa was absent. He did not have an approved business sponsor – either Korean TV or his current employer. 33 The question on appeal is whether the Federal Magistrate erred in his reasoning that the approach of the Tribunal was correct. Nothing in Mr Hu's submission was directed to that. 34 I am unable to discern any error in the Federal Magistrate's reasons. None has been illuminated in address. 35 The appeal should be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.