MASKEY v Minister for Immigration

[2018] FCCA 500

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASKEY & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 500

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant 457 visa – whether the Tribunal was obliged to invite the applicants to appear before it given the applicants did not respond to the Tribunal’s request for information – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.140GB, 359(1), 359C(1), 359(3), 379A, 379G

Migration Regulations 1994 (Cth), Schedule 2, cls. 457.223(2), 457.223(4)

Cases cited:

Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40

First Applicant: SHAMSHER MASKEY

Second Applicant: ASTHA RANA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2861 of 2016

Judgment of: Judge Manousaridis

Hearing date: 01 March 2018

Date of Last Submission: 01 March 2018

Delivered at: Sydney

Delivered on: 09 March 2018

REPRESENTATION

First applicant in person on behalf of the applicants

Solicitors for the First Respondent: Ms A Lucchese of Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2861 of 2016

SHAMSHER MASKEY

First Applicant

ASTHA RANA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants apply for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Temporary Business Entry (Class UC) subclass 457 visa (457 visa).

Background

1. The applicants are husband and wife. On 22 December 2014 they applied for a 457 visa. The second applicant applied as a member of the first applicant’s family unit.

2. To have been entitled to the grant of a 457 visa the first applicant (applicant) had to satisfy the criteria specified in cl.457.223(2) or cl.457.223(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Relevant to the application before me is the requirement prescribed by cl.457.223(4)(a), namely, that:

   (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

3. The applicant applied for a 457 visa on the basis that he would be employed by a company (Sponsor) in the occupation of Customer Service Manager.[1]

   [1] CB1-12

4. Another criterion the applicant had to satisfy is that the Sponsor be approved as a standard business sponsor. The Sponsor applied to be approved as a standard business sponsor on 4 March 2015. Although a delegate of the Minister refused that application, on 4 August 2016 the Tribunal set aside the delegate’s decision and substituted the decision that the Sponsor be approved as a standard business sponsor. In the meantime, on 19 May 2015, a delegate of the Minister refused to grant the applicant a 457 visa and, on 21 May 2015, the applicant applied to the Tribunal for review of the delegate’s decision.

5. By email sent to the applicants’ representative on 15 August 2016 the Tribunal invited the applicants to demonstrate, by 29 August 2016, that the applicant met the requirements of cl.457.223(4)(a) in Schedule 2 to the Regulations, which requires there to be an approved nomination of an occupation in relation to the applicant by a standard business sponsor and the nomination has not ceased (Further Information).[2] By email sent at 10.32 am on 24 August 2016 the applicants’ representative informed the Tribunal he was having “difficulty in obtaining instructions in this matter”, and requested an extension of 14 days within which to provide a response to the email’s enquiry.[3] By email sent at 15.40 on 24 August 2016 the Tribunal stated it had considered the applicant’s request but decided to refuse to grant the extension.[4] The Tribunal repeated its request that the applicants provide the Further Information by 29 August 2016.

   [2] CB93-96

   [3] CB97

   [4] CB101

6. On 1 September 2016 the Tribunal sent an email to the applicants’ representative in which it stated that, because the applicants did not provide the Further Information, they lost their entitlement to a hearing. The Tribunal stated, however, that it would allow the applicants until 16 January 2016 to provide the Further Information. [5] On the same day the applicants’ representative responded by email in which he stated he did not receive a response to the request for further time to provide the Further Information and, for that reason, the applicants were denied procedural fairness.[6]

   [5] CB104

   [6] CB106-107

7. According to an internal document titled “Case Note 17389834”, on 1 September 2016 a Tribunal member contacted the applicants’ representative and informed him that the Tribunal did respond to the applicants’ representative’s request. The representative “confirmed he did receive” the email refusing the request for an extension “but it had been missed”. The Tribunal officer informed the representative that the applicants have “now been given more than the prescribed period to provide” the Further Information.[7]

   [7] CB108

8. By email sent on 13 September 2016 the applicants’ representative informed the Tribunal that the Sponsor “does not wish to continue with his nomination”.[8]

   [8] CB109

Tribunal decision

1. The Tribunal decided to proceed to a decision without taking further steps to obtain the Further Information.[9] The Tribunal noted the applicants made specific claims against cl.457.223(4)(a) in Schedule 2 to the Regulations and no claims based on the “alternative streams” in that clause.[10] The Tribunal therefore considered the issue before it to be whether the applicant meets the requirements of cl.457.223(4)(a) in Schedule 2 to the Regulations.[11]

   [9] CB115, [17]

   [10] CB114, [3]

   [11] CB115, [19]

2. The Tribunal noted that cl.457.223(4)(a) in Schedule 2 to the Regulations requires that there is an approved nomination relating to the applicant by a standard business sponsor, and the approval of the nomination had not ceased;[12] the applicant did not provide the Further Information to the Tribunal;[13] and the applicant “lost his entitlement to a hearing” and so the Tribunal did not have the opportunity of taking evidence from the applicant at the hearing.[14]

   [12] CB115, [20]

   [13] CB115, [21]

   [14] CB115, [21]

3. The Tribunal found that, at the time of the Tribunal’s decision, there was no evidence before the Tribunal that there is a current approved nomination of an occupation in relation to the applicant that had been approved under s.140GB of the Migration Act 1958 (Cth) (Act)[15] or that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved. The Tribunal also found there was no evidence that the second applicant met the criteria for the grant of a 457 visa or that the second applicant was a member of a family unit of a person who is a holder of a 457 visa.[16]

   [15] CB115, [23]

   [16] CB116, [25]

4. The Tribunal, therefore, concluded that the requirements for a 457 visa were not met by either the applicant or the second applicant; no claims had been made in respect of the other streams in cl.457.223 of Schedule 2 to the Regulations; and there was no evidence to show that the applicant would be able to satisfy the specific criteria for those streams.[17]

   [17] CB116, [26]

Judicial review hearing

1. At the hearing before me the applicant made submissions on behalf of himself and the second applicant, who was also present in Court. The applicant said he was aware that after the delegate refused his application for a 457 visa an application for review was made on his behalf by the lawyer for the Sponsor, and that the Tribunal had sent a letter requesting that it be provided with evidence that the Sponsor had nominated the applicant. The applicant said that after he was informed of the Tribunal’s request for information he met with representatives of the Sponsor. The applicant discussed with those representatives the extent to which the applicant would be able to work or continue to work given certain injuries the applicant sustained and the operations he had undergone to deal with those injuries. The meeting concluded with the Sponsor’s representatives stating they would get back to the applicant about the nomination. The applicant said, however, that the Sponsor did not get back to him.

Grounds of application

1. The applicants’ grounds of application are as follows (errors in original):

   1DIBP didn’t invite me for interview. So, I didn’t have natural justice and procedural fairness.

   2 My case was not straightforward. I was injured while doing my work. I was receiving workers compensation. So, DIBP made decision without properly examining the fact

   3 AAT did not exercise its power to quash the decision taken by DIBP. It failed to examine the facts I provided to them.

2. The applicant did not, at the hearing before me, in terms address these grounds. He stated that he intended to convey in these grounds the matters he said to me at the hearing, the effect of which I have already set out. I will separately consider what the applicant said at the hearing before me and each of the three grounds.

3. That the Sponsor may have initially represented to the applicant it would nominate the applicant but then decided not to nominate the applicant, apparently because of an injury or injuries he suffered, is unfortunate and, perhaps, unfair to the applicant. Any misfortune or potential unfairness, however, is the result of what the Sponsor did or did not do; it is not the result of any jurisdictional error by the Tribunal.

4. I now turn to the grounds stated in the application. The first ground cannot be made out, even if I assume the applicant intended to use “DIBP” to refer to the Tribunal. As I have already noted, the Tribunal sent an email to the applicants’ representative requesting further information. That request was made pursuant to s.359(1) of the Act which provides that, when conducting a review, the Tribunal “may get any information that it considers relevant”. Subsection 359(3) of the Act provides that, where the applicant is not in immigration detention, an invitation under s.359(1) must be given by one of the methods specified in s.379A of the Act. One of those methods is that provided for by s.379A(5)(b), namely, by transmitting the document by email. Also relevant is 379G of the Act which provides:

   (1)If:

   (a)a person (the applicant) applies for review of a Part 5-reviewable decision; and

   (b)the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review;

   the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

   (2)If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.

5. Subsection 359C(1) of the Act provides that if a person is invited under s.359(1) to give information, and the person does not give the information before the time for giving it has expired, the Tribunal may make a decision on the review without taking any further action to obtain information

6. In the form of application which they lodged with the Tribunal, the applicants provided details of the representative and his contact details. That included an email address. The Tribunal sent the invitation for further information on 15 August 2016 to the email address of the applicants’ representative nominated in the form of application. It follows, therefore, that the Tribunal did invite the applicants to provide further information. Further, because the applicants did not provide that information to the Tribunal, the applicants lost their entitlement to be invited to appear at a hearing before it.[18]

   [18] Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40

7. Ground 2 also does not disclose any jurisdictional error. The information the applicants submit the Tribunal ought to have but failed to consider was not before the Tribunal; and in any event, the information was irrelevant to the tasks the Tribunal was required to undertake.

8. Ground 3 does not identify the facts the applicants claim were provided to the Tribunal. I am satisfied, however, on the material before me, that the Tribunal considered the applicants’ application for review, and that it considered the material that was before it that was relevant to that review.

Disposition

1. The applicants have not demonstrated the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 09 March 2018