Chhetri v Minister for Immigration and Border Protection

[2015] FCCA 3101

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHHETRI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3101

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Temporary Business Entry (Class UC) visa – procedural fairness – whether the Tribunal unreasonably refused an adjournment – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.140GB, 476

Migration Regulations 1994 reg.2.75

Hou v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: KEM BAHADUR CHHETRI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1575 of 2015

Judgment of: Judge Street

Hearing date: 19 November 2015

Date of Last Submission: 19 November 2015

Delivered at: Sydney

Delivered on: 27 November 2015

REPRESENTATION

Solicitors for the Applicant:

Mr M Newman

Newman & Associates

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1575 of 2015

KEM BAHADUR CHHETRI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 13 May 2015 affirming the decision of the delegate not to grant the applicant a Temporary Business Entry (Class UC) visa. The delegate refused to grant the applicant’s application on 4 April 2014.

2. The delegate identified that the primary criteria for the grant of a 457 business long stay visa were set out in cl.457.223(4)(a) of schedule 2 to the Regulations. Relevantly, that provision required the applicant to have a nomination of an occupation in relation to the applicant as approved under s.140GB of the Act and that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved and that the approval of the nomination has not ceased pursuant to reg.2.75 of the Migration Regulations 1994.

3. The delegate noted that on 27 February 2014, a decision was taken by the department to refuse the nomination application lodged by the primary applicant’s prospective employer.  On 27 February 2014, a letter was sent by the delegate to the applicant’s migration agent inviting comment on whether the criteria could be met, and no response was received.  It was in those circumstances the delegate found that the applicant’s business activity was not subject to an approved business nomination and therefore that the required criteria under cl.457.223(4)(a) had not meet met.

4. By letter dated 16 April 2015, the Tribunal invited the applicant to attend a hearing on 13 May 2015.  It is clear that the applicant appeared on 13 May 2015 to give evidence and present arguments and was represented by his migration agent.  The Tribunal identified that cl.457.223(4)(a) required that there be an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

5. The Tribunal noted that on 16 March 2015, it wrote to the applicant, inviting him to comment on the information explaining that the information might lead the Tribunal to find the applicant did not satisfy cl.457.223(4)(a).  In response to the Tribunal’s invitation, the applicant submitted evidence of a new nomination application by the same employer on 30 March 2015 for the same occupation in relation to the applicant. 

6. This application being by the same employer in respect of the same occupation by the applicant was clearly a matter that the Tribunal was entitled to take into account in deliberating upon a request that was made by the applicant to delay the hearing until a decision on the review was made by the department on the new nomination application that had been lodged by the applicant’s employer on 30 March 2015. 

7. The Tribunal identified that that new nomination had not yet been decided but identified that it was by the same employer for the same occupation in respect of the applicant.  The Tribunal identified that the outcome of the new nomination was uncertain but took into account that the Tribunal had already made a decision to affirm the refusal of a nomination of the same occupation by the same employer in relation to the applicant.  It was in these circumstances that the Tribunal took into account that the application for the visa had been made by the applicant in October 2013. 

8. It is clear that the Tribunal appreciated that it had power to delay the making of a decision on the review and came to the conclusion that in the circumstances of this case, the adjournment was not warranted.  In coming to that finding, the Tribunal took into account the nature of the further application that had been made by the same employer for the same occupation in respect of the applicant as had earlier been refused, as well as the time at which the application for the visa was first made in October 2013.  The Tribunal also made reference to the decision in Hou v Minister for Immigration and Multicultural Affairs [2002] FCA 617.

9. The Tribunal’s reasons are not to be read with a keen eye for error, and on a fair reading it is clear that the Tribunal weighed the circumstances in determining whether it was reasonable to delay making a decision on the review in the circumstances advanced by the applicant.  The Tribunal concluded that it was not satisfied, on the evidence before it, that there was an approved nomination of an occupation relating to the applicant made by a standard sponsor which had not ceased and in those circumstances decided to proceed to determine the application was not satisfied that the applicant met the criteria under cl.457.223(4)(a). 

10. The application identified the following grounds:

    1. THE DECISION OF MIGRATION REVIEW TRIBUNAL INVOLVES JURISDICTIONAL ERROR.

    2. THE TRIBUNAL IGNORED RELEVANT MATERIAL.

11. It is clear that the grounds in the application fail to identify any arguable jurisdictional error.  Mr Newman, the solicitor for the respondent, developed an argument from the bar table, with the leave of the Court, that there was a jurisdictional error on the basis that the Tribunal had unreasonably refused to grant an adjournment. I have also taken into account Mr Newman’s further submissions dated 19 November 2015. Mr Newman identified that the factual position in the present case was different from that that had been identified in Hou v the Minister for Immigration and Multicultural Affairs and contended that in the circumstances of the application for a new nomination being on foot, it was unreasonable not to grant an adjournment. 

12. I accept the submissions of the first respondent that the circumstances of this case are ones where the making of the application by the same employer for the same occupation in relation to the applicant was clearly a relevant matter for the Tribunal to take into account, as a matter of reasonableness, as to whether an adjournment should be granted.  The Tribunal identified both that factor and the time at which the application for the visa had first been made in 2013, as well as taking into account the circumstances of the case. 

13. I do not accept the argument that the refusal of the adjournment by the Tribunal was unreasonable.  In my opinion, the decision of the Tribunal to refuse the adjournment and proceed to decide the matter cannot be said to lack an evident or intelligible justification.  This is not a case where it could be said, as had been raised in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, that there was good reason to expect the criterion would be met. It is in these circumstances that the ground sought to be developed by Mr Newman, solicitor, from the bar table fails to identify a jurisdictional error.

14. Counsel for the first respondent also advanced the submission that this was a case where there was no practical injustice even if the Court had found any jurisdictional error and that there could have been no possible successful outcome by the applicant, by reason of the fact that on 15 May 2015 a delegate refused the nomination that had been lodged on 30 March 2015. 

15. The issue of whether there is no possible successful outcome in relation to what might otherwise have been a jurisdictional error is one upon which the first respondent carries the onus.  It is clear from the decision in Minister for Immigration v Li that evidence had been admitted in that case identifying a successful outcome, as noted in para.21 of the decision of the Chief Justice in Minister for Immigration and Citizenship v Li supra. 

16. I accept the first respondent’s submission that where the issue of practical injustice or no possible adverse impact on the successful outcome is raised as an issue, that material can be tendered, if relevant to establishing or defeating that alleged possibility or practical injustice.  It was in those circumstances that the Court admitted into evidence the notification of refusal of a nomination application dated 15 May 2015 that postdates the decision of the Tribunal delivered on 13 May 2015. 

17. I am satisfied that even if there had been an unreasonable refusal to grant an adjournment, contrary to the finding I have made, this is a case where the alleged error could have had no possible successful outcome for the applicant and the alleged error occasioned no practical injustice, as the nomination was refused by the Department as appears on 15 May 2015. 

18. In those circumstances, even if the applicant had made out a jurisdictional error on the grounds of unreasonable refusal to grant an adjournment, this is not a case in which the Court would have granted relief, as there was no practical injustice and it could not possibly have given rise to a successful outcome by the applicant.  The application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 27 November 2015

Corrections

1. The delivery date on the cover sheet was corrected from 19 November 2015 to 27 November 2015.