BISTA v Minister for Home Affairs

[2018] FCCA 1381

FEDERAL CIRCUIT COURT OF AUSTRALIA

BISTA v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1381

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Temporary Business Entry (Class UC) visa – whether it was legally unreasonable for the Tribunal to exercise its discretion to proceed with the determination of the matter – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.2.72, 457.223

Applicant: CHIRANGIVI BISTA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 4004 of 2017

Judgment of: Judge Street

Hearing date: 28 May 2018

Date of Last Submission: 28 May 2018

Delivered at: Sydney

Delivered on: 4 June 2018

REPRESENTATION

Solicitors for the Applicant:

Ms M Youssef

Mona Youssef & Associates Pty Ltd

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 4004 of 2017

CHIRANGIVI BISTA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 4 December 2017 affirming a decision of the delegate not to grant the applicant a Temporary Business (Class UC) visa.

2. The applicant is a citizen of Nepal and applied for a Temporary Business visa on 8 May 2016. The applicant in support of his application stated that the sponsoring employer was the Hamro Institute of Business Technology Pty Ltd (“Hamro Institute”). The applicant’s contract of employment with the Hamro Institute revealed that he was nominated for the position of a full-time Vocational Education Teacher (ANZSCO 242211). On 2 September 2016, the nomination application by the Hamro Institute was refused by the Department. On 2 September 2016, the applicant was invited to comment on this information.

3. On 29 September 2016, the applicant’s migration agent responded advising that the Hamro Institute had lodged a new nomination application on 20 September 2016. On 9 December 2016, the second nomination application lodged by the Hamro Institute was refused. On 9 December 2016, the applicant was invited to comment on the fact that the Hamro Institute did not have an approved nomination for him and that his visa application was unlikely to be successful as a result. On 23 December 2016, the applicant’s migration agent responded advising that another new nomination application had been submitted for the applicant by the Hamro Institute.

4. On 8 February 2017, the delegate refused the grant of the visa on the basis that the applicant did not satisfy the requirements of cl 457.223 (4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate noted that there was a nomination application which was yet to be determined but found that, as at 8 February 2017, the applicant was not the subject of an approved nomination.

The Tribunal

1. On 10 February 2017, the applicant applied for review to the Tribunal. On 5 September 2017, the applicant was advised that on 18 April 2017, the Minister had announced significant changes to skilled occupations that could be nominated and approved for the purpose of subclass 457 visas. That letter noted the applicant’s nominated occupation had been removed from the list of eligible skilled occupations. The letter advised that as a result, the applicant’s visa application might no longer meet the requirements of cl 457.223(4)(aa) of Schedule 2 to the Regulations which require that the nominated occupation be specified in the relevant instrument in writing for the purposes of paragraph 2.72(10)(a) or (aa) of the Regulations in effect at the time of the Tribunal’s decision.

2. The applicant was invited to comment and provide submissions by 19 September 2017. That letter was sent to the migration agent then identified on the applicant’s application for review. In response to the letter, a fresh appointment of a migration agent was received by the Tribunal dated 8 August 2017 and signed by the applicant and a submission in response was provided which failed to engage with the problems identified in the letter and failed to identify a meaningful response.

3. Following that communication and the change of migration agent, on 24 October 2017, the Tribunal wrote to the applicant inviting the applicant to attend a hearing on 4 December 2017. The communication was sent to the email address identified on the appointment of the new migration agent provided by the applicant to the Tribunal. That covering letter also requested completion of a response to hearing invitation and requested further documents to be provided if the applicant wished to rely upon the same. The applicant failed to appear on the hearing date and the Tribunal decided to proceed to determine the matter.

4. The Tribunal noted the communications that had been received in response to the letter dated 5 September 2017 and that no submissions were received which would indicate the applicant meets the criteria for the grant of the visa. The Tribunal noted the applicant was invited to attend a hearing on 4 December 2017 and that the applicant did not respond to the invitation or attend the hearing and that there was no request for a postponement or an explanation as to why he had failed to appear.

5. The Tribunal decided to proceed to make a determination. In these circumstances, it was reasonable for the Tribunal in the exercise of its discretion to proceed to determine the matter and its decision to do so cannot be said to lack an evident and intelligible justification. The Tribunal noted that the applicant was represented by a migration agent and found the requirements for the standard business sponsorship had not been met and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 21 December 2017, and a Registrar of the Court made orders on 1 February 2018 giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions.

2. Ms Youssef appeared for the applicant at the hearing and identified that there were other categories of visas to which the applicant could apply if the matter was not determined today and that she had only received instructions on Saturday. Ms Youssef confirmed that the grounds identified in ground 1 to ground 14 of the application were not capable of making out any legal error.

3. Ms Youssef submitted that there was a legally unreasonable exercise of the Tribunal’s discretion to proceed to determine the matter and that that was the sole ground on which the applicant relied. Mr Keevers, the solicitor on behalf of the first respondent, confirmed that he was in a position to meet that ground and the submission from Ms Youssef about a mistake made by the new migration agent.

4. Correspondence was tendered by Ms Youssef and was admitted into evidence subject to relevance, identifying reported complaints by the applicant to both migration agents in relation to the failure to be informed of the hearing date. The correspondence clearly identifies that the applicant had appointed a new migration agent and there is nothing on the face of the material before the Court to support any argument that there was a fraud by the migration agent, let alone a fraud on the Tribunal.

5. The new migration agent did provide, in the Court book, a post-determination explanation for failure to appear which is consistent with an error or oversight by the migration agent which was not material that was before the Tribunal at the time of decision. Material that was not before the Tribunal cannot assist in making out the alleged jurisdictional error of legal unreasonableness in refusing to adjourn the matter. The material was admitted subject to relevance.

6. I am not satisfied that the material in Exhibit B is relevant as it cannot on its face support the argument of legal unreasonableness in the exercise of the discretionary power by the Tribunal to proceed to determine the matter. Nor, is the material admissible in the circumstances of the present case on the question of materiality because it is common ground that the applicant cannot meet the criteria of the Temporary Business visa because of the change in relation to skilled occupations which was the subject of the communication on 5 September 2017. In those circumstances, the applicant could not possibly succeed even if there was found to be a jurisdictional error. The correspondence does not assist in establishing any argument of materiality and accordingly the tender of Exhibit B, which was admitted subject to relevance, is found to be irrelevant and is rejected.

7. I accept Mr Keevers’ submissions that there was no engagement with the response to hearing sent to the correct new migration agent’s email address on 24 October 2017. In these circumstances, it was open to the Tribunal to proceed to determine the application without taking further steps to adjourn the matter or to contact the applicant. No legal unreasonableness is made out in relation to the decision of the Tribunal to proceed to determine the matter in the circumstances where the applicant failed to appear. Accordingly, no jurisdictional error is made out.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 4 June 2018