BHANDARI v Minister for Immigration

[2016] FCCA 2782

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHANDARI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2782

Catchwords:
MIGRATION – Application for review of Migration Review Tribunal (Tribunal) – application for Temporary Business Entry (Class UC) (subclass 457) visa - whether Tribunal acted unreasonably in refusing application for adjournment of the review to enable the applicant time to obtain alternative sponsor – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.140GB, 348, 353, 360(1), 363(1)(b)

Migration Regulations 1994 (Cth), cl. 457.223(2), 457.223(4), 457.223(4)(a), 457.223(4)(a)(i), 457.223(4)(a)(iii), 457.223(4)(d)

Cases cited:
Minister for Immigration and Border Protection v Eden[2016] FCAFC 28

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Minister for Immigration and Citizenship v Li[2013] HCA 18; (2013) 249 CLR 332

Applicant: GOLDY BHANDARI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2466 of 2014

Judgment of: Judge Manousaridis

Hearing date: 23 September 2015

Delivered at: Sydney

Delivered on: 28 October 2016

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Respondents: Mr L Dennis of
Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2466 of 2014

GOLDY BHANDARI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Business Entry (Class UC) (subclass 457) visa (457 visa).

2. The applicant relies on two grounds. The first is that the Tribunal acted unreasonably in refusing the applicant’s request for further time to organise a new sponsor. The second ground relates to the manner in which the Tribunal considered one of the criteria the applicant had to satisfy. I do not need to consider the second ground because, as I will later show, the Tribunal did not rely on the applicant’s not satisfying that criterion for affirming the delegate’s decision.

Background

1. To have been entitled to the grant of a 457 visa, the applicant had to satisfy the criteria specified in cl.457.223(2) or cl.457.223(4) of Schedule 2 to the Migration Regulations 1995 (Cth) (Regulations). Relevant to the application before me is the requirement prescribed by cl.457.223(4)(a)(i), namely, that “a nomination of an occupation in relation to the applicant has been approved under” s.140GB of the Migration Act 1958 (Cth); the requirement prescribed by cl.457.223(4)(a)(iii), namely, that the “approval of the nomination has not ceased as provided for in regulation 2.75”; and the requirement prescribed by cl.457.223(4)(d), namely, that “the position associated with the nominated occupation is genuine”.

2. The applicant was nominated by Shinemore Pty Ltd (Shinemore) for the position of a “facilities manager”. That nomination, however, expired in January 2014. In response to the Tribunal’s letter dated 15 April 2014 noting that it was a requirement to the granting of a 457 visa that the applicant is the subject of an approved nomination that has not ceased, the applicant provided to the Tribunal evidence of a new nomination application for the same occupation in relation to the applicant lodged by Shinemore on 28 April 2014.

3. At the hearing before it on 5 June 2014, the Tribunal asked the applicant whether the latest nomination had been approved. The applicant said she expected a decision would be made in early July 2014. The Tribunal agreed to wait until the Department of Immigration and Border Protection (Department) finalised the matter. The Tribunal informed the applicant, however, that if the nomination would not be approved, and the sponsor would not appeal, the Tribunal would have to affirm the delegate’s decision not to grant to the applicant a 457 visa. The Tribunal agreed to postpone making its decision until 4 July 2014.

4. On 4 July 2014 the applicant’s representative informed the Tribunal the Department refused Shinemore’s nomination application. The Department refused Shinemore’s application because it was not satisfied that the nominated occupation of facilities manager was a genuine position.

5. According to a file note written by an officer of the Tribunal, on 10 July 2014 the applicant telephoned the Tribunal “to advise that she has a new sponsor and requests that she be given time to await the outcome of a new nomination application”.[1] The officer informed the applicant that the Tribunal member had not yet made a decision, and the applicant was welcome to put in writing her request. The applicant did so in an email she sent to the Tribunal on 10 July 2014 (errors in original):[2]

   I would like to request you regarding my case. As my case is in mrt and has been refused from department under 457 visa. My nomination was approved at first time but they refused my nomination this time. It’s just because of my job title (facilities manager). For last one month I had tried to apply for another jobs and I got three interviews and out of those two of them can sponsor me and put my file for new nomination. One is not 457 approved but he said he can talk to his solicitor if I get a positive response. I want to request you that could you kindly give me a chance to apply for another nomination under new employer. They are in regional area, one is for motel manager and another is for restaurant manager. They are happy to hire me for this position in their business.

   [1] CB185

   [2] CB186

6. The Tribunal responded by letter dated 25 July 2014:[3]

   I am writing about the application for review made by you in relation to a decision to refuse to grant a Temporary Business Entry (Class UC) visa.

   The Tribunal has considered the evidence you have provided confirming that your sponsor’s application for approval of a nomination has been refused. It has also considered your request for further time but has decided not to agree to do this. It will now proceed to make its decision on the basis of the evidence before it.

   [3] CB191

7. On 7 August 2014 the Tribunal affirmed the delegate’s decision because there was no evidence before the Tribunal that there was an approved nomination of an occupation relating to the applicant by a standard business sponsor, and that the approval of the nomination has not ceased. The Tribunal referred to the applicant’s request for further time to organise a new sponsor. After summarising the grounds on which the applicant relied for seeking further time, the Tribunal said:[4]

   The Tribunal considered this request, but formed the view there is insufficient evidence that an approved nomination is forthcoming as she is still looking for an employer to sponsor her and there is no evidence that a new nomination application has been lodged.

   [4] CB201, [25]

8. The Tribunal also said:[5]

   The applicant requested that the Tribunal postpone making its decision while she pursued other employment/sponsorship options. The Tribunal has considered this request but has not agreed to provide the applicant with further time to do this as the evidence she provided is vague and lacking in detail, and the Tribunal is not satisfied there will be an approved nomination, in respect of the applicant, in the foreseeable future.

   [5] CB201, [28]

9. The Tribunal noted that the other issue before it was whether the applicant met the requirements of cl.457.223(4)(d) of Schedule 2 to the Regulations which required that the applicant’s intention to perform the occupation is genuine, and that the position associated with the nominated occupation is genuine. The Tribunal said it was not necessary to determine that question because the applicant did not satisfy cl.457.223(4)(a) of Schedule 2.

Ground 1 of application

1. The first ground of the amended application is as follows:

   The Tribunal was unreasonable and/or procedurally unfair in failing to allow applicant additional time to find and submit nomination from an alternative sponsor and/or failing to give the applicant opportunity to present new nomination from employer.

   Particulars

   (i)The Applicant had requested that the hearing to be adjourned to enable her to present the nominations (CB186-187) and also at the Tribunal.

   (ii)The nomination from the sponsor was essential to the application to succeed for subclass.

   (iii)The Tribunal declined (CB 201 at [28]) to adjourn the proceedings to enable the applicant to obtain the relevant nomination.

   (iv)The Tribunal has been unreasonable and unfair in refusing the application to provide the nomination.

2. In the applicant’s counsel’s written submissions, it is submitted that:

   a)the Tribunal gave the applicant no opportunity to address how the applicant proposed to obtain an alternative sponsor;[6]

   b)the Tribunal made no attempt to enquire what attempts the applicant was making to secure an alternative sponsor;[7]

   c)the Tribunal gave the applicant no hearing on the issue;[8]

   d)the Tribunal failed to engage with the applicant’s request;[9] and

   e)the Tribunal’s conclusion that the evidence on which the applicant relied for the adjournment was vague and lacking in detail was “arbitrary or lacking in proper engagement with the request to adjourn”.[10]

   [6] Applicant’s Outline of Submissions, [18]

   [7] Applicant’s Outline of Submissions, [18]

   [8] Applicant’s Outline of Submissions, [18]

   [9] Applicant’s Outline of Submissions, [18]

   [10] Applicant’s Outline of Submissions, [24]

Principles

1. The outcome of a challenge based on legal unreasonableness “will depend on the application of the principles which emerge from” Minister for Immigration and Citizenship v Li,[11] “and the earlier authorities discussed in it, rather than on mere factual similarities or differences”.[12] And here, there are a number of matters to note.

   [11] [2013] HCA 18; (2013) 249 CLR 332

   [12] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [42]

2. The first is the power the Tribunal exercised and which, it is said, it exercised unreasonably. The power is s.363(1)(b) of the Migration Act 1958 (Cth) (Act), which provides that the Tribunal may “adjourn the review from time to time”. Second, there is the proposition that the power must be exercised reasonably.[13] Third, assessing whether a decision is legally unreasonable requires a court to evaluate the decision to determine whether, having regard to the subject matter, scope, and purpose of the relevant statutory power, the decision possesses one or more of the qualities conveyed by such words or expressions as “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. If the court concludes the decision possesses one or more of these attributes, the decision will be held to be legally unreasonable.[14]  Fourth, where the decision which it is claimed to be unreasonable is supported by reasons, reasonableness should be assessed both by reference to the actual reasoning the decision-maker adopted in reaching the decision, and the outcome of the decision.[15] In those circumstances, the decision will be unreasonable if it lacks an intelligible justification; and the intelligible justification “must lie within the reasons the decision-maker gave for the exercise of the power”.[16]

   [13] Minister for Immigration and Citizenship v Li[2013] HCA 18; (2013) 249 CLR 332

   [14] Minister for Immigration and Border Protection v Eden[2016] FCAFC 28 at [65]

   [15] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47]

   [16] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47]

Application of principles

1. In applying these principles, I must first identify the subject matter, scope, and purpose of s.363(1)(b) of the Act. The subject matter is the adjournment of the review from time to time. The scope and purpose of that power must be assessed at least in the context of Part 5 of the Act. Three provisions are of particular relevance. Fundamental is the power conferred by s.348 of the Act, which requires the Tribunal to review an application for review that has been properly brought before it. Next is s.360(1) of the Act, which requires the Tribunal to 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. Finally, there is s.353 of the Act which, at the time of the Tribunal’s decision, required that the Tribunal, in carrying out its functions under the Act, “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”.

2. Having identified the subject matter scope and purpose of s.363(1)(b) of the Act, I next consider the reasons the Tribunal gave for not granting the applicant additional time. The Tribunal found there was insufficient evidence that an approved nomination was forthcoming; and that was because the applicant was still looking for an employer to sponsor her, and there was no evidence that a new nomination application had been lodged. The reason why the Tribunal found there was insufficient evidence was that it considered the applicant’s evidence about these matters to be vague and lacking in detail.

3. Whether or not the applicant had given evidence that was relevant to assessing whether the applicant would be able to secure an alternative sponsor, and the time by which she would be able to do so, are matters that were relevant to the Tribunal’s exercise of the discretion conferred by s.363(1)(b) of the Act. It was relevant to the objective of providing an economical and quick review. It was also relevant to conducting the review itself; the Tribunal had to be satisfied that it would be able to review the decision within some finite time. It could not be so satisfied unless there was some basis for concluding that at some point in the future the Tribunal would be able to review the application before it.

4. Given that it was relevant to the exercise of the Tribunal’s power under s.363(1)(b) of the Act to consider whether the applicant would be able to obtain an alternative sponsor, and the time by which the applicant would be able to do so, the next question is whether it was reasonably open to the Tribunal to conclude that the applicant did not provide sufficient evidence to enable the Tribunal to conclude that the applicant would be able to obtain an alternative sponsor in the foreseeable future. In my opinion, it was reasonably open to the Tribunal to so conclude, and for the reasons it gave. The applicant did not identify the name of the two employers the applicant claimed would sponsor her, she did not specify when the applicant was interviewed by the two employers whom she claimed were willing to employ her or whether the two employers were willing to actually apply to sponsor the applicant, and if so by when the applicant anticipated a nomination would be made and, if the employers were not standard business sponsors, by when the applicant expected the employers to make such applications.

5. The applicant submits the duty to act reasonably required the Tribunal to invite the applicant to a further hearing, and, at that hearing, question the applicant about the steps she had taken to obtain alternative sponsors, and the time by which she expected to do that. I do not agree with that submission. It was for the applicant to put before the Tribunal the evidence and submissions on which she relied for seeking the adjournment. There is nothing in the material that could reasonably suggest the applicant expected, or had reasonable grounds for expecting, that she would be given an opportunity to be heard before the Tribunal made a decision on the applicant’s request for an adjournment. It was the applicant who was seeking the adjournment; and it was for the applicant to put before the Tribunal the material she submitted ought to have reasonably led the Tribunal to grant the adjournment she sought.

6. Even if, contrary to my conclusion, the Tribunal was required to provide the applicant a hearing before it could reasonably have made a decision on the adjournment application, the question would have arisen about whether the applicant would be entitled to any relief. The applicant has not put on any evidence in this Court about the enquiries she told the Tribunal she had made, or any other evidence that shows the applicant had some prospect of obtaining an alternative sponsor, had the Tribunal given the applicant an opportunity to be further heard on her application for an adjournment. That may have been relevant to the question of whether a remedy should be granted because, in the absence of such evidence, it is not possible to say whether the applicant would have been able to provide more detailed information than the information she did provide to the Tribunal, and which the Tribunal found to be insufficient. That, in turn, may have been relevant to whether, had the Tribunal given the applicant an opportunity to be heard about her adjournment application, the applicant would have given information which could have led the Tribunal to have made a different decision to the one it made. It is not necessary, however, to determine that question.

7. Ground 1, therefore, fails.

Ground 2 of application

1. Ground 2 claims the Tribunal “fell into error when it misdirected its inquiries in relation to the position of the facilities manager”. That ground appears to be directed to the questions the Tribunal asked of the applicant about the position with Shinemore. Those questions were directed to whether the applicant had satisfied cl.457.223(4)(d) of Schedule 2 to the Regulations. Even if the Tribunal misdirected itself in the questions it asked in relation to the applicant’s satisfaction of cl.457.223(4)(d) of Schedule 2 to the Regulations, that did not result in the Tribunal making any jurisdictional error. As I have already noted, the Tribunal found it was not necessary to consider whether the applicant had satisfied cl.457.223(4)(d) of Schedule 2 to the Regulations.

2. Ground 2, therefore, also fails.

Disposition

1. I propose to dismiss the application. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 28 October 2016