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MIGRATION - Review of Decision of Migration Review Tribunal - no jurisdictional error - no breach of s.359A of the Migration Act - no denial of procedural fairness.

Korovata v Minister for Immigration [2003] FMCA 250 (23 May 2003)

Korovata v Minister for Immigration [2003] FMCA 250 (23 May 2003) Last Updated: 8 July 2003 FEDERAL MAGISTRATES COURT OF AUSTRALIA KOROVATA v MINISTER FOR IMMIGRATION [2003] FMCA 250 MIGRATION - Review of Decision of Migration Review Tribunal - no jurisdictional error - no breach of s.359A of the Migration Act - no denial of procedural fairness. Migration Act 1958 Migration Regulations 1994 Korovata v The Minister [2001] FCA 1446 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 Applicant V346/2000 v Minister for Immigration & Multicultural Affairs [2001] FCA 1197 Kioa v West (1985) 159 CLR 550 Sinnanthamby v Minister for Immigration & Ethnic Affairs (1986) 66 ALR 502 R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 498 Applicant: IOWANA KOROVATA Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS File No: SZ1347 of 2002 Delivered on: 23 May 2003 Delivered at: Sydney Hearing Date: 23 May 2003 Judgment of: Barnes FM REPRESENTATION Counsel for the Applicant: Nil Solicitors for the Applicant: Nil Counsel for the Respondent: Mr T. Reilly Solicitors for the Respondent: Sparke Helmore ORDERS (1) That the application is dismissed (2) That the applicant pay the respondent's costs set in the amount of $4,800 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY SZ1347 of 2002 IOWANA KOROVATA Applicant And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent REASONS FOR JUDGMENT Background 1. This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) made on 23 September 2002, affirming a decision of a delegate of the respondent to refuse the applicant a Cultural/Social (Temporary) (Class TE) visa. The applicant first entered Australia on a Subclass 421 (Sport) Visa within this class of visa on 1 March 1991. He has held a number of Subclass 421 visas since that time. He applied for the visa in question on 12 October 1998. The delegate refused to grant the visa on 1 July 1999. The applicant sought review by the Tribunal of that decision on 28 July 1999. The Tribunal affirmed the decision of the delegate. That decision was set aside by a decision of the Federal Court in Korovata v The Minister [2001] FCA 1446. The matter was remitted to the Tribunal for reconsideration. It is such reconsideration that is the subject of these proceedings. 2. On 12 February 2002 the Tribunal wrote to the applicant pursuant to section 359(2) of the Migration Act 1958 (Cth) (the Act) inviting the applicant to provide additional information relevant to the review. In particular the Tribunal asked the applicant to provide evidence that he was currently sponsored by an organisation in Australia and also evidence that that organisation had good financial status in Australia (CB 48). 3. The applicant's sponsor, the Yanco Wamoon Rugby League Football Club, replied to the Tribunal by letter dated 13 March 2002, indicating that it intended to sponsor the applicant and that it had supplied the applicant with a copy of the latest financial report so that it could be passed on to the Tribunal. The applicant sent a copy of the club's statement of income and expenditure for the period ending 30 September 2001 to the Tribunal on 14 March 2002. 4. The Tribunal sent an invitation to a hearing to the applicant on 4 April 2002. He completed a request for hearing form indicating that he would appear and requesting that the Tribunal take oral evidence from Mr Preston, the President of the sponsor in relation to the club's support and assistance. The Tribunal held a hearing on 2 May 2002. In its reasons for decision the Tribunal stated that the applicant gave oral evidence in this hearing but the Tribunal was not satisfied that he was aware of the issues involved. The applicant had stated that his adviser was supposed to provide a submission on his behalf. This had not occurred. The Tribunal adjourned the hearing until 21 June 2002 allowing time for further information to be provided. The Tribunal member advised the applicant to contact his adviser as it was not clear whether the adviser considered himself as still being instructed. 5. In the request for hearing form in relation to the second hearing the applicant again requested that the Tribunal take oral evidence from the President of the sponsor in relation to `club support, sponsor and financial support'. At the adjourned hearing on 21 June 2002 the applicant handed the Tribunal two letters from the Club and from Group 20 Rugby League, in relation to his current sponsorship. He did not provide any written submission. 6. During the hearing the Tribunal spoke by telephone to Mr Preston the club president and sought up to date information in relation to the Club's financial situation. The club president undertook to provide further information in relation to the financial situation of the sponsor in the form of a Statement of Income and Expenditure to 30 June 2002 and an opinion from the Club's accountant as to the financial viability or soundness of the Club. After an extension of time, information was provided to the Tribunal on 19 August 2002, including an Accountant's Statement and a Statement of Income and Expenditure for the period ending 30 June 2002. The Accountant's Statement indicated that as no audit or review had been performed no assurance was expressed. The Tribunal decision 7. The Tribunal made a decision on 23 September 2002. It is not disputed that the Tribunal correctly applied the decision of Emmett J in Korovata to the effect that a sponsor need not be approved by the Department under Regulation 1.20(3). In its reasons for decision it set out relevant criteria in Subclass 421 of Schedule 2 to the Migration Regulations 1994, (see Schedule 1, Part 2, item 1205). The applicant claimed to be eligible for the visa to play rugby league for the Club (the sponsor). Clause 421.222(4)(c)(ii) requires that at the time of decision the applicant establishes "that the sponsor has good financial and professional status in Australia". 8. The Tribunal considered the material provided by the sponsor, in particular the Accountant's Statement dated 16 August 2002. The Tribunal noted that the information in the Statement of Income and Expenditure was unaudited and that the Accountant's Statement contained a blanket disclaimer. While it purported to show that the sponsor had a gross trading profit for the period ended 30 June 2002, the contents of the previous statement (to 30 September 2001), which showed a trading loss and outstanding unfunded liabilities were said to raise serious doubts as to the accuracy of the statement of 30 June 2002 which had omitted the unfunded past liability without explanation. Having regard to these findings and the fact that the accountant had not stated, as requested, that the sponsor was in a sound financial situation, the Tribunal concluded that the applicant had not satisfied it that the sponsor had a good financial status, as required by subparagraph 421.222(4)(c)(ii). Accordingly, the Tribunal affirmed the decision to refuse the visa. The Application 9. The applicant who was self-represented, claimed (see the amended application filed on 28 March 2003) that the decision of the Tribunal involved a breach of an `inviolable limitation' or `essential pre-condition' of the Migration Act in that the Tribunal `made an error of law when it made the decision without complying with section 359A of the Migration Act by ensuring as far as practicable that the applicant understood the information required to be relevant for the review'. In written submissions he repeated his claim that section 359A was breached arguing that the Tribunal failed to comply with section 359A(2)(b) by not ensuring as far as reasonably practicable that he understood what further documents it required. It was submitted that it was clear from the decision that the Tribunal was aware that the applicant did not understand what was required and that the applicant could not comment on the issue (under s359A(1)(c) when did not understand it. This was said to constitute a jurisdictional error. In addition to the claim raised by the applicant, because he is self-represented I have considered whether the material before the Court reveals any reviewable error. 10. Further, the applicant filed an affidavit sworn by him on 30 October 2002. Paragraph 9 refers to the second hearing and to his provision of two letters as to his current sponsorship. Paragraph 10 of his affidavit states: "10. During the Hearing, the Tribunal member read the two letters and advised me that he wanted to speak to the President of my club. I understood that he was merely checking to see whether the Club was still sponsoring me. After he had finished talking on the phone he advised me that the President had promised that he would provide the Tribunal with the outstanding documentations. He said, however, that if upon receipt of the documents the Tribunal is still not satisfied then the Tribunal will notify me of any other outstanding documentation so I can provide them. (emphasis added) I did not hear from the Tribunal again until 23 September 2002 when it made the decision refusing my application." 11. In the course of the hearing before this Court on 1 May 2003 it became apparent that it was necessary to determine what occurred in the second Tribunal hearing and whether such a promise was made by the Tribunal. At the suggestion of Mr Reilly, Counsel for the respondent, the hearing was adjourned and the respondent provided the Court with a transcript of the proceedings of the second Tribunal hearing annexed to an affidavit sworn by Kerry May Ayalon, an employee of the instructing solicitors. The respondent also tendered the tapes of the hearing. The applicable law 12. This Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Migration Act. In particular, under section 475A, the Court has jurisdiction in relation to a privative clause decision made on a review by the Tribunal. Privative clause decision is as defined in section 474. Subsection 474(1) of the Act limits review by the Court of privative clause decisions. In Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, the High Court held that if there has been a jurisdictional error a decision cannot properly be described as `a decision made under the Act' and is thus not a privative clause decision as defined in subsections 474(2) and (3) of the Act and that a decision flawed for reason of failure to comply with the principles of natural justice is not a privative clause decision within section 474(2). 13. In Plaintiff S157 the Court confined itself to a general statement of principle. The precise scope of the notion of jurisdictional error and whether all instances of lack of procedural fairness are outside section 474 was not determined. In light of the conclusions that I have reached in this case it is not necessary for me to determine those issues. 14. Turning then to the applicant's argument in relation to section 359A. Insofar as this argument is based on the letter that was sent to the applicant by the Tribunal on 12 February 2002 it is misconceived. That letter is not a letter sent under section 359A of the Act. Rather it was send under section 359. It gives rise to the obligation to comply with 359, not with 359A. Section 359(1) provides that 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. 15. In this case I am satisfied that information was provided to the Tribunal on 13 and 14 March 2002 in response to that letter and that such information (the Club's financial report to 30 September 2001) was taken into account by the Tribunal in its decision. Indeed the need for further information arose from the fact that the material provided in response to the letter of 12 February 2002 did not establish that the Club was financially sound. In the transcript of the second Tribunal hearing (and also in the Tribunal decision) there is reference to the contents of the Statement of Income and Expenditure for the period ending 30 September 2001 and the concerns which it raised for the Tribunal. It has not been established that there was any breach of section 359 in relation to that letter. There is no evidence to suggest that a letter was sent to the applicant under s.359A at any time in relation to the review in issue. 16. Nor was there any adverse information which should have been the subject of a section 359A letter. First, the absence of evidence of good financial status is not `information' which gives rise to an obligation on the Tribunal to provide notice under s.359A. Secondly, the applicant himself provided the information in response to the letter of 22 February 2002 to the Tribunal on 14 March 2002. Insofar as this material might in any way be regarded as adverse material, it would not be the subject of a requirement for notification to the applicant under section 359A because of section 359A(4)(b), being information that the applicant gave for the purpose of the application. Neither s.359 or s.359A obliged the Tribunal to advise the applicant that the information provided in response to the letter of 12 February 2002 was inadequate. In fact, however, I am satisfied that the Tribunal did draw the attention of the applicant to the need for further evidence - in the first hearing (as indicated in the reasons for decision) and in the second hearing (as is apparent from the transcript as discussed below). 17. During the second hearing on 21 June 2002 the Tribunal spoke to the Club president by speaker phone. He was asked to provide further financial information to the Tribunal. Contrary to the applicant's claim in paragraph 10 of his affidavit, it is clear from the transcript of the hearing that at no point does the Tribunal member advise the applicant in any way, either directly or indirectly, from the Club, that if the Tribunal was still not satisfied on receipt of the documents it would notify the applicant of any other outstanding documentation so he could provide them. In cross-examination in these proceedings the applicant conceded that this was the case. He suggested that when he had provided the affidavit he had taken into account the first and second hearings. He also indicated that he had it in his mind that he would expect to hear from the Tribunal. 18. It appears that the essence of the applicant's complaint in relation to s.359A is that he did not understand what information was required and he was not given any notification that the information that the Club provided was insufficient. I have considered this complaint in the context of s.359A and also whether there is any lack of procedural fairness. I have already indicated that there is nothing in the transcript to suggest that there was any statement by the Tribunal that the Tribunal would get back to the applicant in any way if the information was inadequate. 19. I am not satisfied that the Tribunal was obliged by section 359A to seek comment from the applicant in relation to the information that was provided on his behalf by the sponsor after the second hearing. The information provided consisted of a cover sheet, an Accountant's Statement and a Statement of Income and Expenditure for the period ending 30 June 2002 in relation to the sponsor. It is information which is not specifically about the applicant or another person. It may in a broad sense, be seen as about a class of persons of which the applicant or another person is a member (that being members of the football club). Whether or not this is so, it is clearly information which the applicant provided as part of his case through the witness from whom he asked the Tribunal to take evidence. The Tribunal did not contact the president of the club at its own initiative. It is clear from both the request for hearing forms that the applicant wished to put before the Tribunal evidence from himself and also evidence from Mr Preston, the President of the Club. 20. It is also plain that the Tribunal did endeavour to make the applicant aware of the relevant issue. This is apparent from the letter that was sent to the applicant on 12 February 2002 requesting evidence that the Club had good financial status in Australia and from the content of the transcript. The issue was raised with Mr Preston during the telephone conversation which occurred in the hearing of the applicant. This conversation was recorded as part of the transcript of the hearing and was obviously conducted over a speaker-phone within the hearing of the applicant and not as a private telephone call. Further, in the subsequent conversation between the Tribunal member and the applicant, the Tribunal member told the applicant of his concerns about the financial status of the club given its past losses. Indeed he went to the extent of putting it in what might in other contexts be regarded as oversimplified terms of: If they can't pay you we can't allow them to have you. Do you understand?---Yes. 21. It is not necessary for the Tribunal to bring its thought processes to the attention of the applicant in relation to material submitted by or as part of the applicant's case (Tin v MIMA [2000] FCA 1109 at [54]). The essence of the applicant's argument is that he should have been made aware more clearly of what the issue was and that he should have had the inadequacy of the information provided by the Club brought to his attention so that he was given an opportunity to provide additional information. However, as was said by Ryan J in Applicant V346/2000 v The Minister [2001] FCA 1197, the Tribunal is not required to signal to the applicant its doubts or hesitation in relation to the sufficiency of the case that the applicant put before the Tribunal. In fact in this case the Tribunal did give the applicant abundant opportunity, through its prior request and at the two hearings and subsequently, to provide the evidence specified in the letter of 12 February 2002. This is not a case in which the Tribunal has been shown to have misled the applicant. It did not positively state in any way or infer that it would seek further comment from the applicant if the material to be provided by the Club for the applicant proved to be inadequate to satisfy the Tribunal. 22. The applicant says that if the Tribunal had come back to him he would have put further information before the Tribunal. Some of the information that he refers to he filed on 28 March 2003 in a blue bound folder. It relates to general issues of supporters providing assistance. He also provided a financial statement for the club for the period to 30 September 2002 and an auditor's report dated 23 October 2002. However such information is information that was not prepared until after the Tribunal decision was made and handed down. It was not information that would have been available at the relevant time. 23. As to the applicant's argument that he did not understand what information was required, I have already referred to the letter of 12 February 2002 which stated the relevant criterion. At the first hearing the applicant was given six weeks to submit documents. In light of the inadequacy of those documents, at the second Tribunal hearing the Tribunal member spoke to the president of the club, as had been requested by the applicant. On a number of occasions during the hearing he spelt out the Tribunal concerns about the financial status of the club. The respondent's Counsel drew the Court's attention to a number of instances in the transcript where the Tribunal said that the only real issue outstanding was the financial soundness of the club and where he expressed his concerns about its financial viability. He referred to the problems with the earlier figures. He requested that the accountant provide a written statement that the accountant considered the Club to be financially sound. 24. Further, after the conversation with the president, the Tribunal member spoke directly to the applicant indicating that the Club had been operating at a loss in the past, that he had doubts about the strength of the club and stating as I have indicated, "If they can't pay you, we can't allow them to have you." 25. The overriding principle in relation to natural justice is that the decision-maker must bring to the applicant's attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it (Kioa v West (1985) 159 CLR 550). It is sufficient that the substance of the issue is brought to the applicant's attention. Procedural fairness does not normally require that the decision-maker disclose his or her thinking processes or, indeed, evaluative conclusions on the material provided. Nor is there any general requirement that a decision-maker make known in each case his view on or evaluation of the material that an applicant puts forward or that the material might result in the Tribunal forming a conclusion adverse to the applicant (Sinnanthamby v Minister for Immigration & Ethnic Affairs (1986) 66 ALR 502). The proceedings before the Tribunal are inquisitorial and it is for the applicant to advance whatever evidence or argument he wishes to advance in support of his claims. As was stated by French J in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, the applicant can support his case by appropriate information and material but cannot complain if it is not accepted. This is not a case where there was some factor personal to him based on information from another source which was likely to have an effect on the outcome such that he should have been given an opportunity to address the information. 26. In this case I am satisfied that the Tribunal took all reasonable steps to bring to the attention of the applicant the critical issue in this case. The Tribunal made plain in a number of ways, through the procedures and in the second hearing, the importance of the issue and the concerns that it had. In particular, I am satisfied that the Tribunal made it clear that it had concerns about the financial strength of the club and, in effect, put this issue `in the ring'. 27. On balance then, I am satisfied that there has been no breach of section 359(A). It has not been submitted nor I am satisfied that there is a breach of any other provision of the Act. Nor does the material before me establish any lack of procedural fairness constituting a denial of natural justice. As there is no jurisdictional error or denial of natural justice established in this case it is not, as I have indicated, necessary to consider the precise effect of the decision of the High Court in Plaintiff S157. 28. The decision is a privative clause decision and it has not been suggested nor is it apparent, that there was a failure to satisfy any of the so-called Hickman provisos. Accordingly, it is ordered that the application is dismissed. I will hear submissions in relation to costs. RECORDED : NOT TRANSCRIBED 29. As the applicant has been wholly unsuccessful, I consider that it is appropriate that he meet the respondent's costs. There was a need for a further hearing and provision of a transcript to consider the applicant's claims. I consider that an appropriate amount for a matter of this nature is $4,800 and I intend to set the costs in that amount. It is ordered that applicant pay the respondent's costs set in the amount of $4800 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules. I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Barnes FM Associate: Date: 23 May 2003
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