MAHAJAN v Minister for Immigration

[2016] FCCA 2816

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAHAJAN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2816

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Temporary Business Entry (Class UC) visa – whether the Tribunal complied with its statutory obligations in the conduct of the review – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359, 362B(2), 476.

Migration Regulations 1994, cl.457.223(4).

Cases cited:

Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182

Applicant: ROHIT MAHAJAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1698 of 2016

Judgment of: Judge Street

Hearing date: 2 November 2016

Date of Last Submission: 2 November 2016

Delivered at: Sydney

Delivered on: 2 November 2016

REPRESENTATION

Solicitors for the Applicant: The Applicant appeared in person.

Solicitors for the Respondents: Ms G Doyle
Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1698 of 2016

ROHIT MAHAJAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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”) dated 7 June 2016 affirming a decision of the delegate not to grant the applicant a Temporary Business Entry (Class UC) visa.

2. The applicant is a national of India and on 4 February 2014 applied for a Temporary Business Entry (Class UC) (Subclass 457) visa. This application was based on the prospective sponsor of Shanaya Pty Ltd.

Letter from the Minister to the applicant dated 15 April 2014

1. On 15 April 2014, a letter was sent to the applicant by the first respondent notifying the applicant that the sponsor did not have an approved nomination for the applicant at that time. The letter advised that the visa application was unlikely to be successful and invited the applicant to provide comment on his intentions regarding a visa application.  There is no record of any reply by the applicant to that letter.

The Delegate

1. On 16 May 2014, a delegate of the Minister identified the requirements of cl.457.223(4) of the Migration Regulations 1994 and found that the requirements of the clause had not been met. 

The Tribunal

1. On 3 June 2014, the applicant applied for review and a differently constituted Tribunal on 20 May 2015 held that it did not have jurisdiction. 

2. By consent, on 5 February 2016 orders were made by this Court remitting the matter for review before a differently constituted Tribunal on the basis that there was jurisdiction to review the application in light of the decision in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182.

3. On 10 February 2016, the applicant was informed that the case had been reallocated to a differently constituted Tribunal and the applicant was required to pay the relevant fee, payment of which was confirmed on 24 February 2016.  

4. On 19 April 2016, the applicant was sent a letter inviting the applicant to comment and drawing the applicant’s attention to the criterion in cl.457.223(4)(a) of the Regulations for the grant of the visa pointing out that:-

   If an approval of any nomination you held has ceased at the time the Tribunal makes its decision, or a nomination of an occupation has never been approved for you, you will not meet the criterion in clause 457.223 (4)(a), which is a mandatory criteria for the grant of a visa.

5. The Tribunal pointed out that it had information at that stage that there was no nomination that may constitute the reason or part of the reason for affirming the decision under review. The Tribunal referred to the information contained in the department file records indicating that the applicant is not presently the subject of an approved nomination by a standard business sponsor.

6. The Tribunal later referred to the fact that in particular, the records contained on the Department’s Integrated Client Service Environment database indicate that a nomination relating to the applicant was refused on 15 April 2014. The Tribunal also made reference to information on the management information system indicating that an application for review of the Department’s decision to refuse the nomination was withdrawn on 22 October 2015.

7. The Tribunal’s letter pointed out that this was relevant to the Tribunal’s review because cl.457.223 (4)(a) of the Regulations requires that at the time of decision you be the subject of an approved nomination by a standard business sponsor. The Tribunal pointed out that this was information that if accepted by the Tribunal, would be the reason or part of the reason for affirming the decision to refuse to grant the applicant a subclass 457 visa.

8. The applicant was invited to respond and provide further information on or before 3 May. On 3 May 2016, the applicant sent a letter to the Tribunal asserting that further time was needed:-

   I need some extension time for this matter this is because I don’t know how to my nomination application has been withdrawal from AAT even i spoken that matter with my employer who sponsored me he is also no aware this matter then so many times i tried to contact my previous agent who Lodge my Nomination and visa application last week i got reply from his office that he is overseas and come back first week of next month. So kindly I request to AAT please giving me some time extension to find out about this matter.

9. Given the communications that the applicant had already received, it was up in lights for the applicant that he needed to obtain a nomination from a business sponsor.  The Tribunal responded to the letter of 3 May and provided the applicant with an opportunity to provide further response on or before 17 May 2016.

10. On 17 May 2016, the applicant responded by asserting he was unable to make contact with his previous agent because he is overseas. The applicant referred to the nomination withdrawal being a matter the applicant would discuss with his employer, and asserting his employer was not aware of this.  The letter dated 17 May requested further time on the basis of the assertion that the agent was away, and the basis of the assertion that the employer did not know about the outcome.  Both propositions appear difficult to comprehend in light of the communications that the applicant had already received.

11. In response to the applicant’s further letter, the Tribunal relevantly responded on 18 May 2016 that it can only grant one extension of time in which to respond to an invitation issued under s.359A of the Act, which the applicant had already been granted. The Tribunal noted that the matter had been scheduled for hearing on Monday 6 June, and that the applicant would receive an email inviting him to appear on that date. The letter noted that:-

    As it appears you have not been the subject of an approved nomination since 15 April 2014, that is for over 2 years, it is unlikely the Tribunal will grant additional time following the hearing, and may give you an oral decision at the conclusion of the hearing.

12. This letter made patent the importance of the applicant being in a position to rely on a nomination at the time of the hearing.

The Tribunal – 6 June 2016

1. The applicant was sent a letter dated 18 May 2016 inviting the applicant to attend a hearing on 6 June 2016. The letter identified that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone.

2. When the applicant failed to attend the hearing, the Tribunal referred to the relevant criterion that had to be met under cl.457.223(4) of the Regulations. The Tribunal identified the communications to the applicant, providing the applicant an opportunity to put on evidence in relation to having a sponsor and also inviting the applicant to appear at the hearing. The Tribunal noted that the applicant did not appear at the time and place scheduled. The Tribunal then considered whether to delay its decision under s.362B(2) of the Act.

3. Materially, the Tribunal noted that the visa was refused on 16 May 2014 on the basis the applicant was not the subject of an approved nomination and that the applicant did not satisfy cl.457.223 (4)(a) of the Regulations. The Tribunal referred to the fact that the application for review was lodged on 3 June 2014. The Tribunal also referred to the s.359A of the Act letter sent to the applicant, identifying the information that would be the reason or part of the reason for affirming the decision under review.

4. The Tribunal waited for over 24 hours after the scheduled hearing time to see if any explanation or medical evidence was provided by the applicant as to why the applicant did not appear. None was provided. It was in those circumstances that the Tribunal determined not to exercise its discretion under s.362B(2) of the Act to enable the applicant’s appearance for the reschedule.

5. Pursuant to s.362B of the Act, the Tribunal decided to make its decision on review without taking any further step to enable the applicant to appear before it. The Tribunal identified the relevant requirements that the primary visa applicant had to meet under cl. 457.223(4)(a) of the Regulations.

6. The Tribunal referred to the evidence identified in that the applicant was not the subject of an approved nomination, and that the nomination in relation to the applicant was refused on 15 April 2014.  The Tribunal noted that the applicant had not provided evidence of another nomination and that at the time of decision there was no information for the Tribunal that the applicant is presently the subject of an approved nomination by a standard business sponsor.

7. The Tribunal found the requirements of cl.457.223(4)(a) of the Regulations were not met. Accordingly, the Tribunal affirmed the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Proceedings before this Court

1. At the commencement of the hearing today, the Court explained to the applicant this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful, or whether the Tribunal’s decision was unfair. The Court explained that if satisfied the Tribunal’s decision was affected by a relevant legal error, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error, the application would be dismissed. 

2. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. The grounds of the application were identified in an attachment to the application attached to the applicant’s affidavit dated 1 July 2016 as follows:-

   MRT decision has Jurisdiction error

   Backround:

   On 19 April 2016 AAT sent me invitation regarding my application on this invitation I found that My nomination file has been withdrawn on 22 Oct 2015.  Even my sponsor company was also not aware this how to file has been withdrawn.

   On 3 May 2016 I sent email to AAT (attached email) said that i need at least one month extension because my previous agent is overseas and I am unable to contact with regarding this issue how someone withdrawn my nomination application.

   Whereas AAT just gave me14 days extra extension (attached). whereas my previous agent came back at first week of June. before contacting with him AAT refused my application on the basis of that I have no approved nomination.

   Even I am not justify myself in front of AA T because absence of actual truth.

   first of all my employer said he didn't withdrawal my nomination application.  Second my previous agent was no here at the time of AAT took my application decision.

   AAT didn't gave me sufficient time to produce my evidence.

4. On 25 August 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and written submissions. The applicant filed a further affidavit which annexed a letter in substance seeking to take issue with the adverse decision of the Tribunal.  Nothing in the letter identified any jurisdictional error by the Tribunal. There is nothing in the attachment to the affidavit identified as being an attachment in the grounds to the application identifies any arguable jurisdictional error.

Consideration

1. A decision of the Tribunal not to provide the applicant with further time was manifestly reasonable and logical and cannot be said to lack an evident and intelligible justification. The applicant had ample time to provide evidence of a business sponsor.  Right up until today, the applicant has not adduced any evidence of there being a business sponsor. It is apparent that the applicant was well aware that he had no such nomination at the time that he was seeking an extension of time.  It is also apparent that the applicant had communications that put him on notice that he needed to have such a nomination.

2. This is a sad example where despite the Court making an order by consent on 5 February 2016, no careful attention was given to the question of whether there was any practical injustice in relation to the grant of the relief that occurred in that case.

3. On the material before the Court, the Tribunal complied with its statutory obligations in relation to the conduct of the review and it complied with the requirements of procedural fairness in the conduct of that review. The applicant’s assertions from the bar table were in substance an impermissible invitation to this Court to engage in an impermissible merits review. 

Conclusion

1. Nothing said by the applicant identified any jurisdictional error.  The application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 December 2016