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MIGRATION - judicial review - application for business visa - procedural fairness - whether right to a further hearing under s 360 Migration Act where Tribunal receives further information subsequent to hearing - Hickman conditions not satisfied - whether relief pursuant to s 39B Judiciary Act available

Huo v Minister for Immigration & Multicultural & Indigenous Affairs [2002]

Huo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 383 (29 November 2002)
Last Updated: 29 November 2002


FEDERAL COURT OF AUSTRALIA
Huo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 383


MIGRATION - judicial review - application for business visa - procedural fairness - whether right to a further hearing under s 360 Migration Act where Tribunal receives further information subsequent to hearing - Hickman conditions not satisfied - whether relief pursuant to s 39B Judiciary Act available

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 359A, 359B, 359C, 360, 424A, 424B, 425

Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 applied

Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 1884 applied

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 considered

NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 considered


SHU QIANG HUO v THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 524 OF 2002

DRUMMOND, NORTH AND DOWSETT JJ

29 NOVEMBER 2002

BRISBANE (VIA VIDEO LINK) (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 524 OF 2002




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SHU QIANG HUO

APPELLANT


AND:
THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
DRUMMOND, NORTH & DOWSETT JJ


DATE OF ORDER:
29 NOVEMBER 2002


WHERE MADE:
BRISBANE (VIA VIDEO LINK) (HEARD IN SYDNEY)




THE COURT ORDERS THAT:

1. The appeal be dismissed with 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 524 OF 2002




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SHU QIANG HUO

APPELLANT


AND:
THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
DRUMMOND, NORTH & DOWSETT JJ


DATE:
29 NOVEMBER 2002


PLACE:
BRISBANE (VIA VIDEO LINK) (HEARD IN SYDNEY)





REASONS FOR JUDGMENT
THE COURT:

1 The appellant is a Chinese national. He arrived in Australia on 8 December 1997 and on 15 December 1997 applied pursuant to the Migration Act 1958 (Cth) (the "Act") for a "long stay temporary business visa". The availability of such a visa depended upon the applicant satisfying one of numerous sets of criteria. The relevant provisions are quite complex. The appellant has, at different times, sought to rely upon at least three different sets of criteria. One related to "independent executives". However an application on that basis may only be made whilst the applicant is offshore. The appellant has been in Australia since 1997. Of the other two sets of criteria, one required that his proposed business activities be sponsored by an overseas business. The other required sponsorship by an Australian business. In either case the proposed sponsorship required the respondent's approval.

2 It seems that the terms "overseas business" and "Australian business" include the entities conducting such businesses. The appellant initially sought to rely upon sponsorship by a company, Teda Hai De Ocean Group Ltd ("Teda Hai"). This was an overseas business. His application was initially refused because the relevant officer concluded that Teda Hai could not meet relevant criteria. The appellant sought review of that decision by the Migration Review Tribunal (the "Tribunal") but by 24 July 2000 it was clear that sponsorship by Teda Hai would not be approved. The Tribunal deferred its consideration of the appellant's visa application to enable him to seek another sponsor. We make no comment as to the appropriateness of this course. Eventually, the appellant indicated that an Australian business, JNZ International Pty Ltd ("JNZ") would sponsor him. This was, of course, subject to appropriate approval, an application for which was made. On 24 July 2001 the respondent advised JNZ that its application for approval had been unsuccessful. On the same day the Tribunal advised the appellant of the failure of JNZ's application and invited his comments, apparently pursuant to s 359A of the Act. Such comments were to be provided in writing within thirty-five days of the date of the letter, that is by 28 August. In specifying the method for providing comments the Tribunal was presumably acting pursuant to s 359B, which section is set out below.

3 On 26 July 2001, JNZ applied to the Tribunal for review of the refusal of approval. On 23 August the appellant's migration agent wrote to the Tribunal, apparently in response to the invitation to comment contained in the letter of 24 July. The agent pointed out that JNZ was "appealing against the decision" refusing to approve its sponsorship and gave further details concerning the activities of JNZ and of the appellant's connection with that company. Finally, the agent indicated that in the event that the JNZ "appeal" was unsuccessful, the appellant would seek a "short stay period under a visa class 457 or 456." On 30 August 2001 the Tribunal advised the appellant that it would hand down its decision concerning his visa application on 12 September 2001. It subsequently did so, affirming the original decision to refuse his application. On 9 October 2001 the appellant applied to this Court for "review" of the decision of 12 September 2001. The application has proceeded as an application for relief pursuant to s 39B of the Judiciary Act 1903 (Cth).

4 At first instance, the appellant made five "central" submissions, only the first of which is presently relevant, namely:

"The Tribunal's purported decision was made in circumstances where there occurred significant breaches of the rules of natural justice, including the applicant's most fundamental right to procedural fairness, both at common law and under section 360 of the Act, being breaches constituting jurisdictional error."
5 By his notice of appeal the appellant specified two grounds, namely:

"1. The learned judge was wrong in law in failing to find that a further hearing was required following the second letter issued under section 359A of the Migration Act.
2. The learned judge was wrong in fact in finding that the Migration Review Tribunal acted properly in refusing to adjourn the hearing, or alternatively, in not combining the two matters."

6 Sections 359A, 359B, 359C and 360 of the Act provide as follows:

"359A
(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 a 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.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or

(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

(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) that the applicant gave for the purpose of the application; or

(c) that is non-disclosable information.

359B

(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.

(3) If the invitation is to give information or comments at an interview, the interview is to take place:

(a) at the place specified in the invitation; and

(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

(a) a later time within that period; or

(b) a time within that period as extended by the Tribunal for a prescribed further period;

and then the response is to be made at an interview at the new time.

359C

(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

(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) the Tribunal considers that it should decide the review in the applicant's favour on the basis of material before it; or

(b) the applicant consents to the Tribunal deciding\the review without the applicant appearing before it; or

(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."

7 Section 360 effectively requires that the Tribunal invite an applicant to appear before it to give evidence and present arguments "relating to the issues arising in relation to the decision under review." That provision is subject to certain exceptions. The appellant was given such a hearing on 24 July 2000. Before the primary Judge it was argued that the appellant was entitled to a second hearing after receipt of the letter dated 24 July 2001 from the Tribunal. His Honour disposed of this submission upon the basis that the obligation to give a hearing under subs 360(1) does not apply where subs 359C(2) operates. This follows from the terms of subs 360(2). Subsection 359C(2) only applies where an applicant fails to respond to an invitation to comment on information provided pursuant to subs 359A(1). In the present case it is at least arguable that the letter of 23 August 2001 commented on the information contained in the letter from the Tribunal dated 24 July 2001. If so, and assuming that s 360 conferred a right to a second hearing, subs 359C(2) did not operate to deprive the appellant of that right.

8 We are of the view that s 360 conferred no such right upon the appellant. The Tribunal satisfied its obligation pursuant to that section at the hearing on 24 July 2000. The issue addressed in the Tribunal's letter dated 24 July 2001 was whether there was an approved business sponsor as required for a successful visa application. This very issue had been addressed at the hearing on 24 July 2000. The Tribunal was not obliged to invite the applicant to a further hearing in respect of this issue. In any event, it is not clear that where information is obtained by the Tribunal after a hearing has taken place, s 360 confers any right to a further hearing in connection with that information, even if it raises new issues. Section 359B directs the Tribunal to specify the way in which comments upon such information are to be provided. It does not prescribe that it must be done by hearing.

9 Sections 424A, 424B and 425 (which apply to proceedings in the Refugee Review Tribunal) are similar in effect to ss 359A, 359B and 360. Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 (per Whitlam, Tamberlin and Sackville JJ) and Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 1884 (per French, Whitlam and Katz JJ) establish that the receipt of further information by that Tribunal after a hearing will not necessitate a further hearing. It is for the Refugee Review Tribunal to determine the manner in which a particular applicant should be invited to make any relevant comments. We see no reason for any different conclusion in the case of proceedings before this Tribunal.

10 The second ground of appeal is that Conti J erred in finding that the Tribunal acted properly in refusing to adjourn the hearing or alternatively "in not combining the two matters". This appears to be an assertion that the Tribunal ought to have stayed the hearing concerning the appellant's application, pending determination of the application by JNZ for review of the refusal of its application for approval of its nomination. Alternatively, it is suggested that the Tribunal should have heard the two matters together. It was for the Tribunal to determine how it should proceed. The appellant had unsuccessfully sought to rely upon two different sponsors in support of his application. As his Honour observed, "The reality was that (the appellant) has resided in Australia for more than four years without having been able to establish a business sponsorship to the satisfaction of DIMA or the Tribunal." Neither procedural complaint is of any substance.

11 Before us, the appellant said nothing concerning either ground of appeal. He indicated that he wished to tell us about the difficulties he had experienced in setting up the relevant business. He also suggested that he would like to have a little time to make appropriate arrangements before leaving Australia. Neither matter is presently relevant.

12 The decision at first instance was made prior to the publication of the reasons for judgment in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. In those proceedings a Full Court comprising five Judges considered a number of cases affected by the adoption of subs 474(1) of the Migration Act in its present form. Because of the variety of different cases there under consideration, the reasons of the members of the Court are somewhat diffuse. However they were effectively summarized by another Full Court in NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 at [24] as follows:

"In NAAV v Minister, von Doussa J (with whom, on this point, Black CJ and Beaumont J agreed) stated (at [635]) that the Migration Act contained a hierarchy of provisions of which, in relation to privative clause decisions, s 474(1) was intended by Parliament to be the leading provision. His Honour held that `apparently inconsistent provisions of the Act' are to be construed as subject to the restrictions in s 474(1). Consequently, the effect of s 474(1) is to expand the jurisdiction of the relevant decision makers, including the Tribunal, so that a decision that is affected by irregularities that would, in the absence of s 474(1) amount to jurisdictional error will be within power, subject to satisfying the so-called Hickman conditions. The Hickman conditions require that the decision
[Yuml] be a bona fide attempt to exercise the power which the Migration Act reposes in the decision maker;

[Yuml] relate to the subject matter of the Migration Act;

[Yuml] be reasonably capable of reference to the power.

In addition, it follows from the reasons of the majority in NAAV v Minister that a decision will not be protected from judicial review if it contravenes what is variously described as an `inviolable' condition, `jurisdictional factor' or `structural elements' found in legislation: at [12], per Black CJ; at [619] per von Doussa J."

13 There is, in our view, no basis for asserting that the present decision in any way contravened any of the three elements or "Hickman conditions". Further, no inviolable condition, jurisdictional factor or structural element has been identified as relevant. The appellant has rather raised questions of jurisdiction in the broad sense, a ground of criticism which is no longer available. There is no ground for s 39B relief. The appeal will be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of The Court.




Associate:

Dated: 29 November 2002

The Appellant appearing in Person







Counsel for the Respondent:
Mr M Wigney






Solicitor for the Respondent:
Blake Dawson Waldron






Date of Hearing:
15 November 2002






Date of Judgment:
29 November 2002


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