Chen v Minister for Immigration and Border Protection
[2016] FCCA 2351
•15 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHEN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2351 |
| Catchwords: MIGRATION – Application for Temporary Business Entry (Class UC) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal’s decision to not await the outcome of the nomination approval application was unreasonable – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.140GB Migration Regulations 1994 (Cth), reg.2.75(2), cll.457.221, 457.223(4) of sch.2, condition 8105 of sch.8 |
| Cases cited: Chen v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 157; [2000] FCA 1901 |
| Applicant: | GUANG CHEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 793 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 11 August 2016 |
| Date of Last Submission: | 11 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | ProActive Legal |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 793 of 2016
| GUANG CHEN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant applied for a Temporary Business Entry (Class UC) subclass 457 visa on 19 August 2014. The criteria for the grant of that visa at the time of the application were contained in cl.457 of sch.2 to the Migration Regulations 1994 (Cth). The two criteria relevant to these proceedings were set out in sub-cll.457.221 and 457.223(4). They provided:
457.221
If the applicant is in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas is held by the applicant, and to any subsequent bridging visa.
…
457.223
(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;
…
Section 140GB permitted an approved sponsor to nominate a person for a visa of a prescribed kind for, inter alia, a proposed occupation and provided for the approval of that nomination by the Minister.
The applicant’s sponsor for the purposes of this application was Fu Ji United Pty Ltd (“Fu Ji United”). Fu Ji United had previously nominated the position of retail buyer and that nomination was approved on 15 October 2014. Pursuant to sub-reg.2.75(2)(b) of the Regulations, that approval ceased 12 months after the approval date, that is on 14 October 2015.
At the time of the visa application the applicant held a subclass 573 Student visa which expired on 20 August 2014. On 19 August 2014 he was granted a bridging visa A which was subject to condition 8105 which required that the applicant not engage in any work in Australia before his course of study commenced.
On 7 November 2014 a delegate of the Minister decided not to grant the applicant a visa and the applicant applied to the Migration Review Tribunal for review of that decision.
Tribunal hearing
On 26 November 2015 the Administrative Appeals Tribunal (Migration & Refugee Division)[1] wrote to the applicant. The letter indicated that under the operation of law, the approved nomination relied upon by the applicant ceased 12 months after the day on which the nomination was approved. The Tribunal invited the applicant to provide information that demonstrated that he meets “cl. 457.223(4)(a) of the Regulations or at very least that [a] new nomination application was lodged by the sponsoring business.”
[1] Which by that time had taken over the functions of the Migration Review Tribunal.
The applicant’s agent wrote to the Tribunal by email dated 9 December 2015 seeking an extension for the provision of the requested information “because the nomination application lodged by the applicant’s sponsoring business has not yet been decided”. Attached to the email was a letter from the Department of Immigration to Fu Ji United dated 9 December 2015 acknowledging an application for approval of nomination in respect of the applicant.
On 11 December 2015 the Tribunal wrote to the applicant inviting him to attend a hearing on 24 February 2016. The applicant’s agent responded to this invitation indicating that the applicant wished to attend the hearing and that he wished the Tribunal to take evidence from the director of the sponsoring company and the senior manager of that company.
On 17 February 2016 the applicant’s agent sent a further email to the Tribunal as follows:
…
Please be advised that the corresponding nomination for the applicant has not yet been decided by DIBP, but it has been allocated and the sponsor was requested for further information (please see attached). The request is due within two days from now, and the Department would normally make an assessment as soon the request is due; we will keep your office updated as soon as a decision is made.
…
The email attached a letter from the Department to Fu Ji United dated 23 January 2016 requesting further information within 28 days.
The applicant attended the hearing conducted on 24 February 2016 and the Tribunal took evidence from the two people referred to in the applicant’s request.
By letter dated 2 March 2016 the applicant’s agent made further submissions to the Tribunal about the issues arising on the review. One of those issues was the approved nomination. The submission noted that the nomination had already been approved on 15 October 2014 but that it had expired and the employer had subsequently lodged a new nomination and no decision had been made in respect of that at the time of writing.
On 10 March 2016 the applicant’s agent sent a further email to the Tribunal submitting further documents and again addressing the issue of the approval of the nomination. In respect of the latter, the agent wrote:
…
The nomination application lodged has been refused yet the nominator is currently having an undecided nomination with the Department, we therefore wish to seek your consideration to wait for the decision.
During the wait for the MRT’s allocation of the case in the last 15 months, there has been quite some ‘sea changes’ to the applicant and his family back in China, including
…
I know the above might not be very closely related to the assessment, but I am hoping that from a compassionate point of view, the MRT could kindly allow more time for the outcome of the nomination. We understand that it is totally up to the MRT to decide whether or not to wait for the nomination result, however, we trust that MRT authority is not only fair, but also kind.
The Tribunal did not wait until the decision on the sponsor’s new application for approval before making its decision. The Tribunal’s reasons for that are critical to the resolution of these proceedings and I will deal with them below.
Tribunal’s decision
On 18 March 2016 the Tribunal made a decision to affirm the delegate’s decision. The reason for the decision was that the Tribunal was not satisfied that the requirements of sub-cl.457.223(4)(a) had been met because the applicant was not the subject of an approved business nomination that had not ceased or that there was an approved nomination of an occupation in relation to the applicant that had not ceased.
The applicant seeks judicial review of the Tribunal’s decision.
Consideration
There are two grounds in the amended application:
i)First, that the Tribunal’s decision not to adjourn the review until the application for approval of Fu Ji United’s nomination was legally unreasonable; and
ii)secondly, that the Tribunal had misconstrued condition 8105.
At the hearing of the matter counsel for the applicant recognised that the Tribunal had not in fact made any decision in connection with condition 8105 and he abandoned the second of these grounds.
The question whether the Tribunal’s decision not to wait for the decision on the nomination approval application was unreasonable must be determined by reference to the reasons given by the Tribunal for that decision: Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [47]. However, two matters must be borne in mind in doing so: first, the Tribunal is under no obligation to give reasons for such a decision: Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [32]; and secondly, a common sense and realistic approach must be taken to the reasons as a whole to see what it was the Tribunal was saying: Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044 at [14] (Allsop J as his Honour then was) explaining the effect of the reasons of the majority in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 271-2.
Given the centrality of the Tribunal’s reasons to these proceedings, it is useful to set them out in full (without alteration):
[32]On 10 March 2016 the applicant’s representative informed the tribunal that a new business nomination application that was lodged with the department was refused and that the sponsoring business lodged another nomination application. The applicant’s representative requested that the tribunal postpone making its decision until the latest business nomination application is decided by the department.
[33]I considered whether to further adjourn making my decision in this matter until the decision is made by the department on the latest business nomination application lodged after the decision was made to refuse the nomination application lodged on 9 December 2015.
[34]In doing so, I considered whether, in the circumstances of this case, the evidence that the applicant meets cl.457.223(4)(a) is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, previous adjournments and the significance of the information or documents to the applicant.
[35]The Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617. In Huo’s case, the Tribunal adjourned its decision pending the outcome of fresh business sponsorship and nomination applications being lodged with the Department. Subsequently, the Department made the decision to refuse the sponsorship application. In their response to the s.359A letter, the applicants informed the Tribunal that the prospective employer lodged an application for review of the Department’s decision to refuse the sponsorship application. Despite the pending review application related to the refusal of the sponsorship application, the Tribunal proceeded to the decision affirming the delegate’s decision to refuse the visa on the basis that the visa applicant’s proposed employer had not been approved as a business sponsor and there was no approved business nomination as required by 457.233(4).
[36]In the decision record the Tribunal specifically stated that it had decided to proceed to make a decision on the visa application without awaiting the outcome of the sponsorship review lodged with the Tribunal. The decision record stated that:
“Having regard to the obligation of the Tribunal to conduct a mechanism of review that is fair, just, economical, informal and quick; the absence of any express statutory obligation of the Tribunal to grant adjournments for the purposes of obtaining approvals under regulation 1.20D (as it than was) and the policy expressed in PAM 3 the Tribunal is not satisfied that there are exceptional circumstances in this case in which to grant an adjournment to the visa applicant to await the outcome of the sponsorship review application.”
[37]The Court found that the Tribunal was not required to make a decision on the review of the sponsorship application before, or simultaneously with, making a decision on the visa application refusal. The Court rejected the applicant’s argument that the Tribunal, by not delaying the decision on the visa application refusal, had not ‘reviewed’ the decision as required by s348 of the Act. It was sufficient that the Tribunal review the decision concerning the refusal of sponsorship at an appropriate time in the future.
[38]In coming to this conclusion the Court noted that the Business (Long Stay) visa subclass only requires that the business sponsorship and nomination be in place at the time of decision, but not necessarily earlier. If the Tribunal were obliged to await the decision on all sponsorship and nomination applications relevant to an applicant, the situation could arise whereby an applicant may remain within the immigration system by continuing to seek sponsorship from different businesses, even though such applications may be continuously refused. The Court concluded there was no error of law apparent or manifest in the conduct of the Tribunal. The Tribunal was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled.
[39]This approach was endorsed in Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision making processes. Indeed, in Ghori v Minister for Immigration and Citizenship [2011] FCA 759 the Court held that it was reasonable for the Tribunal, in light of that applicant’s past applications for extensions of time, to “eventually to put an end to the review process” [at 22].
[40]The Tribunal notes that it is uncertain if and when the applicant will become the subject of an approved business nomination. The Tribunal is not disposed to delay making a decision indefinitely. As a result, and against this backdrop, the Tribunal considers that the applicant and his sponsoring business had ample time to obtain nomination approval from the Department in order for the applicant to meet the cl.457.223(4)(a). Accordingly, in the circumstances of this particular case, the Tribunal does not consider it appropriate to postpone its decision making any further.
The applicant argues that these reasons reveal legal unreasonableness for a number of reasons. The first focuses on the matters referred to in [34] of the Tribunal’s reasons: whether the evidence that the applicant meets cl.457.223(4) was likely to be forthcoming; whether the applicant had a fair opportunity to provide the relevant information or documents already; previous adjournments and the significance of the information or documents to the applicant. The applicant says that, while it would have been reasonable and proper to focus on those matters, the Tribunal did not in fact do so. In particular, it was argued that the Tribunal did not take into account whether evidence of a successful nomination application would likely be forthcoming. It was also argued that there had been no previous adjournment, and the Tribunal did not consider the importance of the information for which it was asked to wait. In my view, the Tribunal did take those matters into account.
First, and most obviously, it said in [34] that it did. Given that the Tribunal is not obliged to give any reasons for the decision not to further adjourn the proceedings, the statement that it considered certain matters is sufficient to defeat this argument.
Secondly, contrary to the applicant’s argument, the Tribunal’s finding, at [40], that it was “uncertain if and when the applicant will become the subject of an approved business nomination” (emphasis added) confirms that it considered whether the evidence was likely to be considered.
Thirdly, the Tribunal was in the best position to know whether it had previously adjourned the review. The fact that it had not earlier given reasons for such an adjournment or had otherwise disclosed it does not suggest that it had not. It will be recalled that the applicant’s agent had written to the Tribunal on 9 December 2015 requesting an extension of time so that the application for approval could be determined. While the Tribunal did not expressly grant an adjournment, the fact is that it did not make a decision on the review until the approval application had been refused. Indeed, while its invitation to the hearing was dated 11 December 2015, the hearing was not held until 24 February 2016, long past the minimum times required for notices of a hearing.
Fourthly, there can be no question that the Tribunal took into account the importance of the information. Not only, as I have said, did it say that it did, but the absence of that information was reason for its decision.
The second attack on the Tribunal’s reasons is that the Tribunal ignored the fact that a previous nomination was approved. The applicant argued that this fact was highly relevant to the prospects of there being a further approval and that to ignore it was inherently unreasonable. The applicant may be correct that the previous approval was relevant, or even highly relevant to the prospects of the latest application for approval. However, stated at the level of generality that there had been a previous approval it is impossible to say that it is correct. After all, there had more recently been a decision to refuse approval. In any event, the applicant did not advance this as a reason for which the approval was likely to be granted. Indeed, there was no argument concerning the likelihood of the approval. In those circumstances, there was no obligation on the Tribunal to consider the relevance of the previous approval.
Similar reasoning has been applied on numerous occasions in different contexts: Tuitaalili v Minister for Immigration & Citizenship (2012) 126 ALD 48; [2012] FCAFC 24 at [26] referring to Roy Morgan Research Pty Ltd v Commissioner of Taxation (2010) 184 FCR 448; [2010] FCAFC 52 at [61], Hussain v Minister for Foreign Affairs (2008) 169 FCR 241; [2008] FCAFC 128 at [38]–[39], Comcare v Davies (2008) 48 AAR 291; [2008] FCA 393 at [21], and Chen v Minister for Immigration & Multicultural Affairs (2000) 106 FCR 157; [2000] FCA 1901 at [88]–[90].
The third attack is on the statement by the Tribunal, at [40], that the applicant had had “ample time to obtain nomination approval from the Department.” This was said to have been unreasonable in light of the following: a previous nomination application by the sponsor, for the applicant had been successful, a successful nomination was essential to the applicant’s application, and the sponsor had but one opportunity to obtain a further nomination, and had swiftly lodged another. This, with respect, is no more than a statement of disagreement with the Tribunal’s conclusion. None of the facts relied on by the applicant meant that the only reasonable outcome was the grant of time for a second application for approval (the first having been unsuccessful). Nor do they support the conclusion that there was no justification or logical basis for the conclusion stated by the Tribunal.
The fourth attack is that the authorities referred to by the Tribunal were factually distinguishable. Whether or not those cases are distinguishable is irrelevant. The Tribunal did not purport to follow them in any narrow sense of that word, but only examined the approach taken by the Tribunal to the issues that arose and then took into account the judicial approval of that approach. Thus, at [39], it referred to the fact that the Tribunal’s “approach was endorsed” in a decision of this Court. Further, and in any event, the circumstances in Ghori v Minister for Immigration & Citizenship [2011] FCA 759 were similar to those before the Tribunal to the extent that there had been previous applications for extensions of time. There was nothing illogical about the Tribunal’s approach. It is one taken by the Courts on a daily basis in the consideration of the exercise of discretionary powers.
The final attack on the Tribunal’s reasons is that it referred (at [40]) to not being disposed to delay making a decision indefinitely. The applicant argues that he did not ask for an indefinite postponement, but only that the Tribunal wait for an undecided nomination application. This argument relies on a nit-picking approach to the Tribunal’s reasons that is often warned against. In any event, the ordinary meaning of the word “indefinitely” is not definite; without fixed or specified limit (Macquarie Dictionary Online), or without definition or limitation to a particular thing, case, time, etc.; indeterminately, vaguely (Oxford Dictionary Online). That is the way the Tribunal used the word. That was an accurate description of the events before the Tribunal given that no particular time had been requested or suggested by the applicant.
The decision by the Tribunal not to wait for a decision on the approval application but to proceed to its decision was one that had evident justification in the reasons given by the Tribunal. It was not one that no reasonable decision-maker could have arrived at.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 15 September 2016
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