Bhattarai v Minister for Immigration
[2020] FCCA 3124
•19 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHATTARAI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3124 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that its refusal to grant an adjournment of its review was unreasonable. |
| Legislation: Migration Act 1958, s.474 Migration Regulations 1994, cl.457.223 of sch.2 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 |
| Applicant: | SUMITRA KANDEL BHATTARAI |
| Second Applicant: | BISHNU BHATTARAI |
| Third Applicant: | SUBIN BHATTARAI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3955 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | 15 June 2020, 5 November 2020 |
| Date of Last Submission: | 5 November 2020 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2020 |
REPRESENTATION
| Solicitors for the Applicants: | Mr R Selliah of Rasan T. Selliah & Associates |
| Solicitor for the Respondents: | Ms S Lloyd of HWL Ebsworth |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3955 of 2017
| SUMITRA KANDEL BHATTARAI |
First Applicant
| BISHNU BHATTARAI |
Second Applicant
| SUBIN BHATTARAI |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicants are citizens of Nepal who are wife, husband and child respectively. On 22 June 2015 the first applicant applied to what is now the Department of Home Affairs (“Department”), for a Temporary Business (Class UC) subclass 457 visa. The application was made on the basis that the first applicant’s sponsoring employer was Ghan Kumari Pty Ltd (“Ghan Kumari”) and included the second applicant as member of her family unit. On 19 October 2016 the first and second applicant’s application was refused by a delegate of the first respondent (“Minister”) on the basis that the first applicant did not satisfy cl.457.223(4)(a) of sch.2 of the Migration Regulations 1994 (Cth) (“Regulations”) The three applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision. They were unsuccessful before the Tribunal and applied to this Court for judicial review of the Tribunal’s decision. On 4 March 2020 the time within which to commence this proceeding was extended to 19 December 2017.
In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
LEGISLATION
The criteria for the grant of a subclass 457 visa were found in pt.457 of sch.2 to the Regulations. A criterion to be satisfied at the time of decision was cl.457.223(4)(a) which provided:
…
Standard business sponsorship
(4)The applicant meets the requirements of this subclause if:
(a)each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75; …
Subsequent to the applicant’s visa application, the subclass 457 visa regime was abolished. However cl.457 continued to apply to applications lodged prior to 18 March 2018.
BACKGROUND FACTS
In its decision the Tribunal summarised relevant facts, namely:
a)on 22 June 2015 the first applicant applied for a Temporary Business Entry (Class UC) Subclass 457 visa based upon a nomination by Ghan Kumari;
b)Ghan Kumari’s nomination was not approved and on 19 October 2016 the delegate refused to grant the visa because the first applicant had not met cl.457.223(4)(a) of sch.2 of the Regulations. The applicants then applied to the Tribunal for a review of the departmental decision;
c)on 1 November 2017 the first applicant appeared before the Tribunal where she confirmed that Ghan Kumari’s nomination had been refused and that, in fact, six nominations relating to her had already been refused. The day before the hearing Shubhadip Pty Ltd (“Shubhadip”), a company for which the first applicant was not then working, lodged a new nomination in relation to her. The first applicant told the Tribunal that Shubhadip had also made a nomination in relation to her in August 2016 but it had been refused. She sought a four week delay in the Tribunal’s process pending the outcome of the new nomination application.
On 1 November 2017, at the Tribunal’s hearing, the first applicant gave the Tribunal a letter addressed to it which relevantly said:
I refer to my visa application for review before the Tribunal.
The application has come to the Tribunal for review due to the refusal of the nomination by the Department of Immigration and Border protection.
I have attached to this letter the acknowledgement of the Nomination Application that is outstanding with the Department of Immigration currently.
I request the tribunal to wait until this nomination is finalized which may take up to four weeks.
Also supplied was a letter from the Department, addressed to Shubhadip and dated 31 October 2017, acknowledging that that company’s nomination application had been received.
The Tribunal’s decision and reasons
The Tribunal refused the applicants’ request for a delay because:
a)six nominations relating to the first applicant had already been refused;
b)her visa application had been made two years earlier;
c)the new nomination would not be affected by whether or not the first applicant was present and if it were successful, she could then apply for another subclass 457 visa;
d)the applicant’s presence or absence would have no impact on her prospective sponsor as she was not working for them.
The Tribunal then found that no approved nomination relating to the first applicant was then current and so it was not satisfied that the first applicant satisfied cl.457.223(4)(a). It consequently affirmed the delegate’s decision.
THE PROCEEDING IN THIS COURT
The applicants’ amended application alleged:
1.The Tribunal’s failure to adjourn its review of the delegate’s decision under s 363(1)(b) of the Migration Act 1958 (Cth) and its decision is legally unreasonable (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (‘Li’) and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (‘Singh’) Therefore, the Tribunal committed jurisdictional error.
Particulars
1.1On 31 October 2017, the first applicant was notified that the Department of Immigration and Border Protection had acknowledged to her sponsor that a nomination application was received.
1.2On 1 November 2017, the first applicant requested the Tribunal to adjourn its review until the above nomination is finalised, which may take up to four weeks.
1.3On 1 November 2017, the Tribunal proceeded to make a decision and refused the first applicant’s request for adjournment. The Tribunal’s reasoning and decision described at paragraph 10-12. (references omitted)
As noted earlier in these reasons, the Tribunal declined the applicants’ request for the review to be delayed. The applicants submitted that this was unreasonable and supported their case by reference to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, in essence submitting that the Tribunal had failed to expose its reasons for refusing their request. They argued:
As no ‘evident or intelligible’ reasons have been produced by the second respondent for its decision not to adjourn the applicants’ review, all this Honourable Court can do is to ‘focus on the outcome of the exercise of power in the factual context presented’: Singh at [45].
With respect, this submission is misconceived. Even if the applicants disagreed with them, the Tribunal’s reasons were set out clearly enough in paras.10 and 11 of its decision record, summarised above at [8].
It is to the Tribunal’s express reasons that regard must be had when considering the applicants’ other submission, that:
The sole ‘reason’ given by the second respondent in paragraph 10 is that ‘The Tribunal considered the request, but notes that the application for the visa was made more than 2 years ago and 6 nominations have already been refused in relation to the applicant.’ This clearly demonstrates that, in the present case, the second respondent also unduly relied on the applicants’ previous ‘opportunities’ to not adjourn the review within its power under s 363(1)(b), which squarely falls within His Honour French CJ's observation. Therefore, relying on the applicants’ previous nomination attempts to not adjourn the applicants’ review cannot be regarded as ‘an evident and intelligible justification’ for the second respondent's exercise of its statutory discretion: Li at [76].
The reference to French CJ in that submission is a reference to the Chief Justice’s finding in Li’s case that:
The decision of the MRT to proceed to its determination was not, on the face of it, informed by any consideration other than the asserted sufficiency of the opportunities provided to the first respondent to put her case. (at 352 [31])
However, the Tribunal in this case was not concerned with “opportunities” and implications that the applicants had not prosecuted their claims with vigour, as had been the case in Li. There the Tribunal had rejected a request for an adjournment pending receipt of the results of a review of a skills assessment which was central to the visa application, saying:
The Tribunal considers that the applicant has been provided with enough opportunities to present her case and is not prepared to delay any further and in any event, considers that clause 880.230 necessarily covers each and every relevant assessing authority’s assessment. (Li at 339 [3])
In this case, however, the equivalent issue was the first applicant’s considerable history of unsuccessful nominations and, it can be inferred, the absence of any evidence or arguments from the applicants to suggest that the new nomination would enjoy any greater degree of success. The Tribunal’s preference to determine the review and let the nomination take its own course reflects the absence of any basis advanced by the applicants to suggest that the outcome of the nomination application would be of assistance to them. The Tribunal also had regard to the practical consequences of that decision and observed that the nomination process could progress in the first applicant’s absence and, if successful, the first applicant could then apply for a visa on that basis.
The applicants also submitted that the Tribunal’s decision had been arbitrary but it is apparent that the Tribunal reasoned to the conclusion it reached. Moreover, the conclusion was not one which no reasonable decision-maker would have reached and did not lack an evident and intelligible justification. In this case, the lodgment of yet another nomination application in respect of the first applicant, and one which was unsupported by any evidence or argument to suggest that it had a better chance of success than all the others which preceded it, and made by a proposed sponsor who had already been unsuccessful in seeking to sponsor the first applicant, did not present a powerful justification for delaying the Tribunal’s review. It is unsurprising that the Tribunal was not persuaded that it did.
The Tribunal’s decision to determine the review without delay was not unreasonable.
In the circumstances, and although the issue had been raised at an interlocutory stage by the Court, it is not necessary to decide whether, even if the Tribunal’s decision had been affected by jurisdictional error, remitting the matter to the Tribunal for rehearing would have been futile: see. Salh & Anor v Minister for Immigration and Anor [2019] FCCA 2096.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 19 November 2020
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