Brahmbhatt v Minister for Home Affairs

[2019] FCCA 853

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRAHMBHATT & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 853

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Temporary Business Entry (Class UC) visa – whether the Tribunal complied with its statutory obligations – whether the Tribunal complied with the requirements of procedural fairness – whether the Tribunal had an independent and impartial mind to the determination of the matter on its merits – invitation to engage in merits review – no jurisdictional error made out – application dismissed.  

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl. 457.223 of Schedule 2

First Applicant:	JIGISHABEN NATVARLAL BRAHMBHATT
Second Applicant:	SUHAG JAYESHKUMAR BAROT
Third Applicant	SOHA SUHAG BRAHMBHATT

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3334 of 2018

Judgment of: Judge Street

Hearing date: 3 April 2019

Date of Last Submission: 3 April 2019

Delivered at: Sydney

Delivered on: 3 April 2019

REPRESENTATION

The First and Second Applicants appeared in person

Solicitors for the Respondents: Mr J Lambe
HWL Ebsworth

ORDERS

1. The oral application for an adjournment is refused.

2. The application is dismissed.

3. The first and second applicants pay the first respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDER: 3 April 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3334 of 2018

JIGISHABEN NATVARLAL BRAHMBHATT

First Applicant

SUHAG JAYESHKUMAR BAROT

Second Applicant

SOHA SUHAG BRAHMBHATT

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 9 November 2018 affirming a decision of the delegate not to grant the applicants Temporary Business Entry (Class UC) visas.

2. The first and second applicants are husband and wife and the third applicant is their daughter in respect of whom the first applicant was appointed as the litigation guardian on 17 January 2019. The applicants are citizens of India.

3. On 31 March 2017, the delegate found the applicants failed to meet the criteria for the grant of the Temporary Business Entry (Class UC) visas.

4. The applicants applied for review on 18 April 2017. The applicants were invited to attend a hearing by a letter dated 9 August 2018 before the Tribunal to take place on 10 September 2018. The applicants appeared on that date to give evidence and present arguments and were represented by a migration agent.

5. The Tribunal in its reasons identified the background to the application for review. The Tribunal referred to the hearing on 10 September 2018 and the Tribunal referred to writing to the applicants on 2 October 2018 in circumstances where the delegate’s decision not to approve the company’s nomination for the particular position was made on 14 September 2018. On 15 October 2018, the applicants’ representative in response identified that there had been an application lodged in the Federal Circuit Court of Australia for review of the Tribunal’s decision of 14 September 2018 to refuse the company’s nomination.

6. The Tribunal identified that as there had not been a direct response to the s 359A letter, the applicants were invited to attend a further hearing on 7 November 2018 to give evidence and present arguments. On that date, the applicants and their migration representative appeared.

7. The Tribunal referred to the existence of the review application to the Federal Circuit Court of Australia and the delay that may be encountered in the determination of that process. It was in those circumstances, the Tribunal decided it was not prepared to postpone the decision as the applicant would, in fact, be able to seek review of the Tribunal’s decision. The Tribunal expressly referred to the request for delay pending the outcome of the Federal Circuit Court of Australia’s decision on the company’s nomination application.

8. The Tribunal referred to the application involving employment of the first applicant’s husband on the central coast of New South Wales and the Tribunal did not consider it relevant in relation to considering the first applicant’s proposed continued employment by the company in metropolitan Sydney. The Tribunal did not consider it appropriate to delay making a decision in the matter until the Federal Circuit Court of Australia hands down its decision. The Tribunal found the application in that regard would take a long time and it was a speculative outcome.

9. The Tribunal also noted that the applicants acknowledged that each of the three most recent nomination applications made by the company in respect of the first applicant had been unsuccessful. It was in these circumstances, taking into account the Tribunal’s obligation to make timely decisions that the Tribunal decided not to defer the matter.

10. The Tribunal referred to the requirements of, relevantly, cl 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) that there must be an approved nomination for an occupation relating to the applicant by a standard business sponsor that has not ceased. The Tribunal found there was no evidence before the Tribunal that there was such an approved nomination relating to the first applicant.

11. It was in those circumstances, the Tribunal found that the requirements of cl 457.223(4)(a) of Schedule 2 of the Regulations were not met and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 30 November 2018. On 17 January 2019, a Registrar of the Court made orders giving the applicants an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the applicants sought to tender documents relating to the first applicant that were not before the Tribunal. These documents were marked MFI 1 and their tender was objected to by the first respondent. As the documents were not before the Tribunal, and given their nature relating to the first applicant as described to the Court, the documents are not capable of making out any relevant error by the Tribunal.

3. This Court is not in a position to make fresh findings of fact in relation to the applicants’ claims. The Court is confined to considering whether the Tribunal complied with its statutory obligations and whether the Tribunal complied with the requirements of procedural fairness. The documents marked MFI 1 were rejected by reason of not being relevant to the relief claimed.

4. The Court explained to the applicants the nature of the hearing and both applicants confirmed that they understood the nature of hearing as explained by the Court.

5. From the bar table, the first applicant submitted that the decision of Tribunal not to await the outcome of the Federal Circuit Court proceedings was unfair. It is apparent that the Tribunal considered the application for an adjournment and gave logical and rational reasons as summarised above for the refusal. Those reasons cannot be said to lack an evident and intelligible justification. Whilst the applicant may disagree with the refusal of the Tribunal to adjourn the matter, it is apparent that the Tribunal gave real and meaningful consideration to the applicants’ adjournment application and in the circumstances where there had been three most recent applications that had been unsuccessful and given the duty upon the Tribunal and the delay likely to occur, the Tribunal’s reasons cannot be said to be legally unreasonable.

6. The first applicant also maintained that the decision was unfair. On the face of the material before the Court, the applicants were invited to two hearings and had a real and meaningful opportunity to present their claims and evidence. Further, it is apparent from the Tribunal’s reasons, as summarised above, that the applicants were well alive to the issue of not having an approved nomination in relation to the criteria that was essential criteria that the applicants have to meet in respect of the Temporary Business Entry (Class UC) visa.

7. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review. Nothing said by the first applicant from the bar table identified any jurisdictional error.

8. The second applicant indicated that an issue of these proceedings being heard with the other proceedings had been raised before the Registrar and put submissions in relation to whether the proceedings should have been heard together. The Court treated what was said by the second applicant as an application for an adjournment. The adjournment application was opposed by the first respondent.

9. These are proceedings that were commenced on 30 November 2018 and orders were made on 17 January 2019 giving the applicants an opportunity as referred to above to put on an amended application, affidavit evidence and submissions. The Court is not satisfied that an adjournment would be of any utility. The grounds in the present application for reasons that follow fail to identify any jurisdictional error and have a want of merits by reason of which the Court is not satisfied an adjournment is warranted in the interests of the administration of justice.

10. Further, even if the appeal in the Federal Circuit Court of Australia was successful, it would not mean that the decision of the Tribunal in the present case was the subject of jurisdictional error.

11. The Court is not satisfied that an adjournment in the circumstances of the present case is warranted or would be of any utility. It is for these reasons the adjournment application was refused.

12. The second applicant also maintained that the Tribunal should have permitted the applicants to await the outcome of the Federal Circuit Court decision. For the reasons already given, the Tribunal’s decision to proceed with the hearing was logical and reasonable and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by anything said by the applicants from the bar table.

The grounds

1. The grounds in the application are as follows:

   1. Continous job in same position and same industry since 2014 till date;

   2. Proper pay and taxes being paid as per award wages.

   3. Department initially approved visa and alter on second occasion they first refused my visa application even without looking into nomination application which is error of procedural judgment which can not be justified and this has been ignored or not been considered troughout AAT process by its member.

2. In relation to ground 1, the continued position of the first applicant and her successful pursuit of her business does not of itself identify any relevant error by the Tribunal. This Court does not have power to determine the matter on compassionate or discretionary grounds. Nothing said in ground 1 identifies any jurisdictional error.

3. In relation to ground 2, again, the payment of wages and taxes does not identify any relevant error by the Tribunal and, in substance, is an invitation to this Court to engage in merits review. This Court has no power to review the merits. No jurisdictional error is made out by ground 2.

4. In relation to ground 3, the contention that the Tribunal decided the matter without looking into the nomination application is inconsistent with the reasons of the Tribunal. The assertion that the Tribunal in its reasons was the subject of an error that could not be justified, in substance, reflects a disagreement with the adverse findings by the Tribunal. Those adverse findings were open for the reasons given by the Tribunal. There has been no relevant consideration identified that the Tribunal failed to consider. For the reasons already given, the Tribunal’s refusal to delay the determination of the application before the Tribunal cannot be said to be unreasonable. No jurisdictional error is made out by ground 3.

5. Insofar as the applicants’ affidavits advance an allegation of bias, that allegation appears to be based on the adverse findings by the Tribunal. The adverse findings are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

6. On the face of the material before the Court, the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits. It was in circumstances where the applicant failed to meet the mandatory criteria in respect of there being an existing approved nomination that the applicants did not meet the requirements for the grant of a visa and that the Tribunal affirmed the decision under review.

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

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 May 2019