Khatri & Anor v Minister for Immigration & Anor

Case •

[2015] FCCA 407

•

20 February 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHATRI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 407
Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – Temporary Business Entry (class UC) visa – whether the Refugee Review Tribunal failed to consider an integer of the applicant’s claim – whether the Refugee Review Tribunal was consistent with the dictates of procedural fairness – no jurisdictional error – application dismissed.

Legislation:  
Migration Act 1958

Migration Regulations 1994
Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280; [2014] FCAFC 1
First Applicant: MUHAMMAD ADNAN KHATRI
Second Applicant: SAIRA ADNAN
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 732 of 2014
Judgment of: Judge Street
Hearing date: 20 February 2015
Date of Last Submission: 20 February 2015
Delivered at: Sydney
Delivered on: 20 February 2015

REPRESENTATION

Counsel for the Applicant: Mr Karp of Counsel
Solicitors for the Applicant: Christopher Levingston & Associates
Counsel for the Respondent: Ms Francois
Solicitors for the Respondent: DLA Piper

ORDERS

  1. The application be dismissed.

  2. The Applicant pay the First Respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 732 of 2014

MUHAMMAD ADNAN KHATRI

First Applicant

SAIRA ADNAN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PRTOECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. The applicant sought a grant of a visa under the Temporary Business Entry (class UC) visa under s.65 of the Migration Act 1958, which was applied for on 12 May 2011.  The delegate refused to grant the visa on 30 May 2011 and the applicants applied to the Tribunal for a review on 20 June 2011.

  2. The grounds of the application are as follows:-

    1. The Tribunal erred in failing to consider information of which it was aware, and which was central to the applicant’s case, in deciding to proceed to making a decision on 7 March 2014.

    Particulars

    (a) A decision, made by the same Tribunal member who was considering the applicant’s case on 18 February 2014 that the applicants proposed nominator be approved as a standard business sponsor, that being a criterion for approval of an application for nomination (Migration Regulation 2.72(1)(a)).

    2. The Tribunal’s decision to proceed to decide the applicant’s application on 7 March 2014 was unreasonable in the legal sense. 

    Particulars

    (a) It was unreasonable for the Tribunal to fail to defer consideration of the applicant’s application given that the same Tribunal member who was considering the applicant’s case had decided on 18 February 2014 that the applicants proposed nominator be approved as a standard business sponsor, that being a criterion for approval of an application for nomination (Migration Regulation 2.72(1)(a).

  3. On 21 February 2013, the Tribunal wrote to the applicant:

    I am writing about your application for review made on 20 June 2011 in respect of a decision to refuse to grant you a Class UC subclass 457 visa. I am writing to advise that the application is now under active consideration by a Member of the Migration Review Tribunal.

    In your visa application form which was submitted to the Department of Immigration on 12 May 2011, you indicated that you were nominated by Chedglen Pty Ltd as your sponsoring employer under standard business sponsor scheme. The Tribunal is presently considering an application for review by this business. At this stage, the Tribunal intends to defer consideration of your review application until the associated application is finalised. If, however, you would like to have your application considered on the basis of nomination by a different sponsoring employer under standard business sponsor scheme, or under an alternative scheme, you are invited to provide information as to how you meet Clause 457.223(4)(a) (which relates to whether you are the subject of an approved business ‘nomination’ by a Standard Business Sponsor) or information as to how you meet Clause 457.223(4)(a) (which relates to whether you are the subject of an approved business ‘nomination’ by a Standard Business Sponsor) or information as to how you meet an alternatives in Clause 457.223 of Schedule 2 of the Migration Regulations 1994.

    If you have any questions, please contact me on the number listed below, or telephone the Tribunal’s national enquiry line on 1300 361 969. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

  4. On 18 February 2014, the Tribunal delivered its reasons for review in relation to the earlier refusal of the business sponsorship application and the Tribunal approved the entity Chegwin Pty Limited as a standard business sponsor. 

  5. On 19 February 2014, the Tribunal wrote to the applicant and relevantly said:

    I am writing about your application for review made in respect of a decision to refuse the grant of your Class UC subclass 457 visa.  I am writing to advise that your review application is now under active consideration by a member of the Migration Review Tribunal.

  6. The letter proceeded to identify that the Tribunal would consider whether the applicant met the requirements for Part 457 of Schedule 2 of the Migration Regulations 1994.  The letter identified that in the visa application, the applicant had indicated that he was applying as a person nominated by an Australian business and said:

    Clause 457.223(4)(a), which relates to sponsorship by a standard business sponsor requires that there is an approved nomination of an occupation in relation to you by a standard business sponsor which has not ceased.

  7. It is clear from that letter that the Tribunal was drawing attention to the need for satisfaction of the cumulative requirements in relation to a standard business sponsorship of cl.(4)(a)(i):

    A nomination of an occupation in relation to the applicant has been approved under s.140GB of the Act.

  8. And the letter continued, materially:

    You are invited to provide the following information in writing: 

    Information to demonstrate that you are the subject of an approved business nomination which has not ceased as required by cl.457.223(4)(a)…(emphasis was in the letter).

  9. Again, it is clear, in my opinion, that the letter wasn’t suggesting that it was the approval of the standard business sponsor that was outstanding.  Materially, the letter said:

    The information should be received at the Tribunal by 5 March 2014.

  10. In the following paragraph, starting with:

    If you cannot provide the information by 5 March 2014, you may ask the Tribunal for an extension of time in which to provide the information.

  11. And the balance of the letter:

    If the Tribunal does not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

  12. The letter made crystal clear that the applicant had the opportunity to provide further information to the Tribunal by 5 March 2014. The letter made crystal clear that the applicant could seek more time if the applicant desired prior to 5 March 2014.  The letter made crystal clear that the Tribunal would consider any request for an extension of time materially.  The Tribunal in the letter drew attention to the fact that if the Tribunal did not receive the information within the period allowed or as extended, the Tribunal may make a decision upon review without taking any further action to obtain information.

  13. It is common ground in this case that there was no response by the applicant to the letter of 19 February 2014. There is no evidence before the Court to explain why the applicant chose not to respond and the Tribunal, as was open to it, on 7 March proceeded to determine the application and affirmed the decision of the delegate to refuse to grant the visa applicant’s Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 because the cumulative requirements could not be satisfied and were not satisfied.

  14. The Tribunal identified in its reasons for decision the communications that had taken place and the Tribunal identified that the Tribunal’s records indicated that the communication transmitted on 19 February 2014 was successfully transmitted.  The Tribunal said:

    7. The review applicants did not provide the information within the prescribed period and no extension was requested or granted.  In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that a review applicant has no entitlement to a hearing, the Tribunal has no power to admit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

    8. I have decided to proceed to a decision without taking further steps to obtain the information.  I am satisfied that the Tribunal’s letter was correctly sent and that the Tribunal has provided the applicants with an opportunity to provide information relevant to the issue in dispute.  I note that the determinative issue in this case is the same issue identified in the delegate’s decision.

  15. The Tribunal was referring to the need for the satisfaction of the cumulative requirements. The Tribunal carefully considered the matter and affirmed the decision as follows:

    14. For these reasons, I find that the applicant has not met the requirements for the standard business sponsor stream. No claims have been made in respect of any other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy this specific criteria for those streams. I find the applicant does not meet the cl.457.223 which is a mandatory primary criterion for the grant of Subclass 457 visa.

  16. And the Tribunal continued:

    15. The second applicant has made no claims to meet the primary criteria for the grant of a Subclass 457 visa and on the information before me I find that she does not meet cl.457.223.  There is no information before me to indicate that there is a current business nomination in respect of her to meet the requirements of cl.457.223(a), nor that she meets the requirements of any other streams in the subsections of cl.457.223.

  17. In relation to ground 1 of the application, it is crystal clear that the Tribunal appreciated that it was no longer the case that there was not a standard business sponsor who had been approved.  It is clear from para.13 and para.15 of the reasons of the Tribunal that it was alive to and was taking into account the fact that the applicant was now in a position where Chedglen Pty Ltd was a standard business sponsor approved.  In my opinion, in these circumstances, there is no substance in the contention that the Tribunal failed to properly consider that matter. In these circumstances, ground 1 is doomed to failure and identifies no jurisdictional error. 

  18. In relation to ground 2, Mr Karp conceded that, in essence, his unreasonableness challenge amounted to saying that no reasonable Tribunal could have written the letter on the 19 February 2014, providing only a 14 day period to respond.  Mr Karp sought to advance that the timing that it had taken since the lodging of the application to deal with the question of the approval of a standard business sponsor was in some way relevant to the proposition that no reasonable Tribunal could have sent a letter on 19 February in the terms identified, providing a 14 day opportunity to respond.

  19. It is material, in considering the requirements of jurisdictional error in the context of unreasonableness, to take into account the statutory framework.  Materially, s.353, identifies that:

    The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

  20. And under subs.(2):

    The Tribunal, in reviewing a decision:  (a) is not bound by technicalities, legal forms or rules of evidence; and (b) shall act according to substantial justice and the merits of the case.

  21. Mr Karp sought to put that, in the circumstances of the timing of the application, it was no longer one where the statutory direction in s.353(1), so far as it referred to quick, had work to do and sought to advance that, in the circumstances, the substantial justice and merits of the case mandated the Tribunal providing a period longer than 14 days.  In my opinion, it was clearly open to the Tribunal, acting reasonably and proportionately, to provide a 14 day period for the applicant to respond.

  22. The letter made clear the applicant could seek further time.  The letter made clear that the Tribunal would consider such application.  The letter made clear the ability of the applicant to seek that adjournment and the letter made clear the consequences if no information was received.  In these circumstances, it cannot, in my opinion, be said that no reasonable Tribunal could have come to the decision made by the Tribunal in this case to send a letter on 19 February 2014.  Further, it cannot be said that no reasonable Tribunal could have proceeded on 7 March 2014 to determine the application for review. The second ground of alleged unreasonableness is not made out.

  23. I should note that counsel for the applicant conceded that the facts in this case were quite different from those in Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280; [2014] FCAFC 1. Further counsel was unable to point to any decision where the Tribunal had provided an opportunity and invited the provision of further information and identified the consequences that would flow if they are not provided and where no steps were taken by the applicant within that timeframe, it was found to be a jurisdictional error for the tribunal not to proactively grant a further adjournment in the absence of any request for the same.

  24. In the circumstances of this case, it was reasonably open for the Tribunal to proceed and to do so was in compliance with the statutory scheme and in consistent with the dictates of procedural fairness.  There was no jurisdictional error.  The application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  3 March 2015

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