457 Visa Refusal: Federal Court Reasons

Matter Refused: Lee v MIAC & Anor [2007] FMCA 1802

This applicant sought judicial review of a decision of the Migration Review Tribunal (the Tribunal) affirming a decision of the Minister’s delegate to refuse his application for a (Class UC) Temporary Business (Long Stay) visa (Subclass 457).

The visa was refused on the finding that the applicant’s sponsor, KT Entertainment Ltd (KT), was not approved as a ‘standard business sponsor’ pursuant to cl.457.223(4) of Schedule 2 to the Migration Regulations 1994 (the Regulations). KT applied for review and the Tribunal affirmed the delegate’s decision finding that KT did not meet the criteria. This is not a matter our firm handled.

The Tribunal sent the applicant a notice under s.359A of the Migration Act 1958 (the Act) inviting him to comment on KT’s failure to obtain approval. The applicant replied seeking a two week time extension to find a new sponsor, in which he also noted two potential sponsors. The Tribunal rejected the request for extension.
The applicant contended that the Tribunal’s discretion miscarried by refusing the applicant an extension of time to apply for a second sponsorship, and in addition, by not inviting the applicant to provide more details in relation to his proposed sponsors.

Further, it was argued that the Tribunal should have given reasons for the refusal, and it was contended that the Tribunal should not have proceeded with a hearing on the basis that it was unable to make a favourable decision, in circumstances where the applicant had sought to put further information before it.

Held: Application was dismissed

1. The Tribunal committed a jurisdictional error by holding a hearing when it had no power to do so. Sections 362, 363 and 359C(2) of the Act together operate to hold that the Tribunal has no power to invite the applicant to a hearing when the applicant has failed to respond to a s.359A notice.
2. Relief was refused in the Court’s discretion since the jurisdictional error did not deny the applicant procedural fairness. Once the Tribunal found that KT did not meet the criteria to be a sponsor, the Regulations required that it affirm the delegate’s decision. It followed that any information in relation to the proposed alternative sponsors could not have affected the decision made by the Tribunal. The applicant suffered no injustice by reason of the Tribunal’s action in excess of jurisdiction.
3. The Tribunal was under no obligation to permit the applicant further time to respond to the s.359A notice, and there is no duty either at common law or under statute to give reasons for that decision.

Federal Magistrates Court of Australia, Cameron FM, SYG 1554 of 2007, 30 October 2007