Haq v Minister for Immigration - [2018] FCCA 1523

HAQ & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1523

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in refusing the applicant an adjournment of four weeks – whether the Administrative Appeals Tribunal’s decision was reasonable and had an evident and intelligible justification – writs issued.

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth), s.2A
Migration Act 1958 (Cth), ss.31, 65, 363, 420, 476
Migration Regulations 1994 (Cth), reg.2.01, sch. 1, sch.2 cl.457.223

Cases cited:
Chen v Minister for Immigration & Anor [2016] FCCA 2351
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223
Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

First Applicant:

MAHMUDUL HAQ

Second Applicant:

MOSAMMAT RAZIA

Third Applicant:

MAHBIRUL HAQ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3005 of 2016

Judgment of:

Judge Emmett

Hearing date:

12 June 2018

Date of Last Submission:

12 June 2018

Delivered at:

Sydney

Delivered on:

12 June 2018

REPRESENTATION

Solicitors for the Applicant:

Mr Melvin Newman
(Newman & Associates)

Counsel for the Respondents:

Mr Tom Liu

Solicitors for the Respondents:

Mills Oakley Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3005 of 2016

MAHMUDUL HAQ

First Applicant

MOSAMMAT RAZIA

Second Applicant

MAHBIRUL HAQ

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 30 September 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 1 July 2015 refusing the Applicant a Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa (“Subclass 457 Visa”). The first applicant is the primary applicant (“the Applicant”) and the second and third applicants are his wife and child, respectively whose applications are dependent on those of the Applicant.

Background

On 30 January 2015, the Applicant lodged an application for Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457) visa with the Department of Immigration and Border Protection (“the Department”).
On 1 July 2015, the Delegate refused the Applicant’s application for Subclass 457 Visa.
On 21 July 2015, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
On 30 September 2016, the Tribunal handed down its decision affirming the decision of the Delegate not to grant the Applicant a Subclass 457 Visa.
On 1 November 2016, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Pursuant to s.65(1)(a) of s.476 of the Migration Act 1958 (Cth) (“the Act”), if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Temporary Business Entry (Class UC) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
At the time the subject visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Regulations. Relevantly at the time of decision the Applicant was required to meet the following:
“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; and…”

The proceeding before this Court

The Applicant was represented before this Court by his solicitor, Mr Melvin Newman.
Mr Newman’s submissions did not address the grounds of the application as such. Mr Newman’s submissions addressed the adequacy of the reasons of the Tribunal in refusing the Applicant an adjournment of four weeks to provide evidence of a new business sponsor. Mr Newman submitted that the Tribunal either did not give reasons as to why it refused the adjournment or failed to address the need for the adjournment. Mr Newman submitted that the Applicant’s original business sponsor was “lost” and that the Applicant was left in the lurch. Mr Newman submitted that the Applicant was seeking alternative sponsorship as a Hotel Manager by another country hotel, Red Steel Hotel in Wagga (“Red Steel”).
Mr Newman submitted that the Tribunal must act reasonably and fairly and if the Tribunal is exercising its discretion to refuse the Applicant’s request it must set out clear reasons that are both fair and just.
Mr Newman submitted that the Applicant told the Tribunal that he had only found out “recently” that his earlier sponsorship had been lost and that he was not privy to the reasons for the withdrawal of sponsorship. Mr Newman submitted that the Applicant told the Tribunal that he had found another possible sponsor and was being considered for that position but was unable to get any further documentary evidence in time for the hearing.
Mr Newman referred to s.420 of the Act insofar as the Tribunal is required to act “according to substantial justice and the merits of the case” and “is not bound by technicalities, legal forms of rules or evidence”.
Mr Newman referred to the Tribunal’s reference to s.2A of the Administrative Appeals Tribunal Act1975 (Cth) which stated that the Tribunal’s statutory objective was to provide a mechanism for review that is accessible, fair, just, economical, informal and quick as well as proportionate to the importance and complexity of the matter, and, which promotes public trust and confidence in the decision maker of the Tribunal.
Mr Newman submitted that the Tribunal placed too much weight on its obligation to be “quick” and gave less attention to its obligation to be “fair” and “just”. Mr Newman submitted that there was no need for the Tribunal to act harshly when the Applicant’s fate was in the hands of others. Mr Newman submitted that bad luck should not be penalised and that the Tribunal did not give the Applicant “a fair go”.
Counsel for the first respondent, Mr Liu, referred the Court to s.363 of the Act which provides that the Tribunal may adjourn a review from time to time. Mr Liu submitted that the Applicant was required to meet the relevant criteria of reg.457.221(4) of the Regulations at the time of decision, that the Applicant did not do so and that the Tribunal’s refusal to grant the request by the Applicant for a further four weeks was reasonable for the reasons given by the Tribunal.
True it is that the Applicant was required to satisfy the relevant criteria at the time of the Tribunal’s decision, in particular, that he had an approved nominator for employment.
On 15 May 2015, The Department informed the Applicant that it had received unfavourable information which did not support his application in that his prospective sponsor A1 Hotel Group (“A1 Hotel Group”) did not have an approved nomination for the Applicant. The Applicant was invited to provide more information as to why the A1 Hotel Group did not have an approved nomination. The letter invited the Applicant either to provide evidence that he was the subject of an approved nomination or to withdraw his application or to provide any comment or other information relevant to the adverse information.
On 11 June 2015, the Applicant’s migration agent responded to the Department’s letter informing it that the A1 Hotel Group had been barred for 6 months from sponsoring applicants for Subclass 457 Visas. The migration agent’s letter requested that the Applicant’s application be stayed until the A1 Hotel Group’s appeals in relation to the bar had been concluded.
On 1 July 2015, the Delegate refused the Applicant’s visa application on the basis that the Applicant was not the subject of an approved nomination by an approved business sponsor and therefore did not meet the relevant criteria for the Subclass 457 Visa for which he had applied.
On 21 July 2015, the Applicant applied for review of the Delegate’s decision.
On 22 July 2015, the Applicant was invited to send any further material.
On 10 August 2016, the Tribunal wrote to the Applicant informing him that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal’s letter invited the Applicant to a hearing on 30 September 2016 and to send to the Tribunal any further material it wished the Tribunal to consider.
On 29 September 2016, the Applicant sent the following request to the Tribunal:
“Dear Sir/Madam
I am the applicant in these proceedings. Since the Application was lodged with the Migration Review Tribunal, My the situation has changed.
The nominator who had nominated me for the position of the Hotel Manager has withdrawn the application for review which was before the Migration Review Tribunal recently. It has left me with no Sponsor/Nomination and my application in the current situation is unlikely to be successful.
I have spoken to numbers of employers and they are ready to file the nomination for me however it is taking some time to collect the documents. In the meantime, I seek the extension of the time to submit a new Nomination documents from a different Employer.
Kindly allow me some time (about 4 weeks) to submit documentations.
Yours Sincerely
Mahmudul Haq.”
(Errors in original)
On 29 September 2016, a case note in respect of the Applicant stated that an attempt had been made to ring the Applicant to advise him that his request for an extension of time had been considered by the Tribunal member, but had been refused.
A further case note dated 29 September 2016, recorded that the Applicant had rung the Tribunal and again been advised that his request for an extension of time had been refused and that he could either withdraw his application for review or attend the hearing the following day. The case note records that the Applicant advised he would attend the hearing.
The Tribunal’s decision was dated 30 September 2016, and recorded that the Applicant had appeared before it on 30 September 2016 and at that time requested that the Tribunal delay making its decision for four weeks because the applicant had found a new sponsor.
The Tribunal noted that at the hearing the Applicant told the Tribunal that his A1 Hotel Group had withdrawn its application before the Tribunal for review of the Departments decision and that there was no subsequent approved nomination in relation to him and nor was there any pending any nomination application with the Department.
The Tribunal noted that the Applicant had requested the Tribunal to postpone making its decision for four weeks because he had found a new sponsor. The Applicant told the Tribunal that he had been informed of the A1 Hotel Group’s withdrawal “a few months ago” and that he had been looking for alternative sponsors for a few months.
The Applicant then told the Tribunal that the owner of the Red Steer is an approved sponsor and was thinking about offering him employment in the role of Hotel Manager, being the same role as he had with the A1 Hotel Group. The Applicant told the Tribunal that his discussion with the Red Steer had occurred “a few weeks ago” but that he did not know the full name of the man who owned the Red Steer and had not yet received a written offer of employment from him. The Tribunal noted that the Applicant said that his earlier sponsor had not yet provided a written reference to him for any prospective employer and that, to the Applicant’s knowledge, the owner of the Red Steer had not yet called the A1 Hotel Group for a reference check. The Applicant told the Tribunal that in the meantime he continued to be employed by the A1 Hotel Group.
The Tribunal noted that the Applicant acknowledged that it was uncertain if and when he would become the subject of an approved nomination and that Red Steer was still “thinking about” offering him employment.
The Tribunal then noted that it had considered if it should adjourn the review to allow the Applicant additional time in which to provide further evidence to support his review application. The Tribunal noted that there was no obligation on it to delay its decision making merely because and applicant wishes to attempt to meet relevant statutory criteria. The Tribunal stated that it then considered whether a sponsor was likely to be forthcoming and whether the Applicant had had a fair opportunity to provide relevant information or documentation. The Tribunal then noted that the Applicant had been invited on 22 July 2015 and 10 August 2016 to provide any additional documents or information and that none had been provided. The Tribunal found that it was uncertain when the Applicant would be offered employment with Red Steer and when a nomination application would be lodged with the Department for the Applicant to be the subject of an approved business nomination. The Tribunal noted the absence of any evidence from the Red Steer. The Tribunal then conclude that the Applicant had had sufficient time to obtain evidence of lodgement of a nomination application by Red Steer and that, in the absence of that information, the Tribunal did not consider it appropriate to postpone its decision.
In my view, the Tribunal’s decision was without an intelligible justification for the following reasons:
i)There was evidence before the Tribunal from the Applicant that the Red Steer was thinking about offering him employment in the role of Hotel Manager pursuant to earlier discussion he had had with Red Steer “a few weeks ago”. This was evidence before the Tribunal of the potential by the Applicant of sponsorship with the Red Steer.
ii)In the light of the Applicant’s evidence of his discussions about prospective employment with the Red Steer, it was unreasonable for the Tribunal to require the Applicant to obtain evidence from the Red Steer as to its intentions. It was therefore perfectly reasonable that the Applicant may have no documentation from the Red Steer about his prospects.
iii)The Applicant gave evidence that he had been looking for alternative sponsors for a few months having been informed that his A1 Hotel Group was not able to pursue its nomination of the position currently occupied by him.
iv)The Applicant’s failure to provide further documents in answer to the Tribunal’s invitations to the Applicant for documents sent on 22 July 2015 and 10 August 2016 to send further material, do not provide an intelligible justification for the Tribunal’s refusal to grant the Applicant a four week adjournment, given that at those times the Applicant had not had the discussions with Red Steer.
v)The Applicant’s request was for a period of four weeks and was not otherwise open ended, unlike the position in Chen v Minister for Immigration & Anor [2016] FCCA 2351.
vi)The Tribunal’s decision was made by it the day before hearing from the Applicant. The case notes referred to above plainly state that the Tribunal Member had made a decision to refuse the Applicant’s request for an application for extension of time to submit further documents. In those circumstances, it is of concern that the Tribunal Member may have pre-judged her decision dated 30 December 2016 to refuse the Applicant’s request for a further four weeks to provide evidence of a new sponsor, being Red Steer.
vii)The fact that the four week adjournment could not guarantee sufficient documentation being provided by the Applicant to enable him to meet the criteria, in my view, is not sufficient to deny the Applicant’s request. The request for four weeks in all the circumstances was a reasonable request. The loss of the earlier sponsor was not due to any conduct on the part of the Applicant and the evidence before the Tribunal was that he was having discussions with the Red Steer who were thinking of offering him employment in the role of Hotel Manager.
The circumstances referred to above are well within the contemplation of the statutory power given to the Tribunal to adjourn its review from time to time. Whilst the Tribunal is charged with, inter alia, a quick decision it is also charged with the responsibility for a process that is fair and just. The importance of the decision to the Applicant was critical and on no view are the applications for approved business sponsorship without complexity. In all the circumstances of this case, the Tribunal’s decision to refuse the Applicant’s request for a further four weeks would not promote public trust and confidence in the decision making of the Tribunal where the circumstances in which the Applicant found himself were beyond his control.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (“Li”) at [28] per French CJ), or where a decision has been made that lacks an “evident and intelligible justification” (see Li at [76]; Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 at [234]). The test for unreasonableness is “stringent” and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgments made by the decision maker (see Li at [30], [113]).
I note that the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 recently summarised the general principles of reasonableness as follows at [38]:”
“38.The following general principles may be extracted from the three leading authorities referred to immediately above (further general guidance is provided by the Full Court’s decision in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158): there is a legal presumption that a statutory discretionary power must be exercised reasonably in the legal sense of that word (Li at [63] per Hayne, Kiefel and Bell JJ; Singh at [43] per Allsop CJ, Robertson and Mortimer JJ; Stretton at [4] per Allsop CJ and at [53] per Griffiths J);
nevertheless, there is an area within which a decision-maker has a genuinely free discretion, which area is bounded by the standard of legal reasonableness (Li at [66]; Stretton at [56] per Griffiths J);
the standard of legal reasonableness does not involve a court substituting its view as to how a discretion should be exercised for that of a decision-maker (Li at [66]; Stretton at [8] per Allsop CJ) and [76] per Griffiths J);
the legal standard of reasonableness is not limited to what is in effect an irrational, if not bizarre, decision and an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified (Li at [68]);
in determining whether in a particular case a statutory discretion has been exercised unreasonably in the legal sense, close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions (Li at [74]; Stretton at [62] and [70] per Griffiths J);
legal unreasonableness “is invariably fact dependent” and requires a careful evaluation of the evidence. The outcome of any particular case raising unreasonableness will depend upon an application of the relevant principles to the relevant circumstances, rather than by way of an analysis of factual similarities or differences between individual cases (Singh at [48]; Stretton at [10] per Allsop CJ and at [61] per Griffiths J);
the concept of legal unreasonableness can be “outcome focused”, such as where there is no evident and intelligible justification for a decision or, alternatively, it can reflect the characterisation of an underlying jurisdictional error (Singh at [44]; Stretton at [12]-[13] per Allsop CJ);
where reasons are provided, they will be the focal point for an assessment as to whether the decision is unreasonable in the legal sense and it would be a rare case to find that the exercise of a discretionary power is legally unreasonable where the reasons demonstrated a justification (Singh at [45]-[47]).”

The Tribunal’s decision in the case before this Court was in all the circumstances legally unreasonable and without an evident and intelligible justification. The Tribunal’s reasons, such as they are, placed weight on factors not relevant to the request for a four week adjournment. Namely, a failure by the Applicant to provide material from the Red Steer Hotel about prospective employment of the Applicant given the fact that the Applicant had had discussions with the Red Steer “only a few weeks ago”. The Tribunal did not disbelieve the evidence provided to it by the Applicant. It therefore did have evidence of a potential new sponsor for the Applicant for a job in the same position in which he was currently employed. The request for four weeks was a reasonable time for the Applicant to pursue that prospective employment.
Further, and of concern, is the fact that the Tribunal told the Applicant the day before the hearing that his request for four weeks to submit further documents had been refused, and then at the hearing refused the Applicant’s request to postpone making its decision by four weeks. Such conduct may lead to the possibility of an apprehension of bias by the Tribunal that it had pre-judged any request by the Applicant for a further four weeks to provide documentation before hearing from the Applicant and (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).
In my view, a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).
However in relation to the issue of apprehended bias, it was neither raised by the Applicant nor did I raise it with counsel for the first respondent. For those reasons, I do not make a finding of apprehended bias but the observations of the Court’s concern should still be noted.
However the Tribunal’s refusal to grant the Applicant a further four weeks lacked an intelligible justification. Accordingly, the Tribunal’s decision was affected by jurisdictional error.
The matter should be remitted to the Tribunal for determination according to law.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate:

Date: 12 June 2016