PATEL v Minister for Immigration

[2015] FCCA 1427

CIRCUIT COURT OF AUSTRALIA

PATEL & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1427

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal decision – Temporary Business Entry (Class UC) visa – whether certified copy of assessment detailing occupation and qualifications – where applicant assessed as not meeting requirements for nominated occupation – where request by migration agent to hold decision until new standard business sponsor and nomination approved – whether refusal to delay unreasonable – whether jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.12.02

Migration Act 1958 (Cth), ss.359, 359B, 359C, 360(3), 363A, 476

Migration Regulations 1994 (Cth), reg.4.17(4), sch.2, cl.457.223(4)(e)

Hasran v Minister for Immigration & Citizenship & Anor [2010] FCAFC 40; (2010) 183 FCR 413
Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280; (2014) 139 ALD 50
Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225
Minister for Immigration & Multicultural & Indigenous Affairs v Sun & Anor [2005] FCAFC 201; (2005) 146 FCR 498
MZZZL v Minister for Immigration & Anor [2014] FCCA 1309
SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs[2006] FCA 702
SZQRU v Minister for Immigration & Citizenship[2012] FCA 1234
WZANN v Minister for Immigration & Anor[2009] FMCA 643

First Applicant: KIRTIKUMAR RANCHHODBHAI PATEL

Second Applicant: NEHABEN HASMUKHBHAI PATEL

Third Applicant: BHAVYA PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 370 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 19 May 2015

Date of Last Submission: 19 May 2015

Delivered at: Perth

Delivered on: 29 May 2015

REPRESENTATION

For the Applicant: In person

Counsel for the First Respondent: Mr P Corbould

For the Second Respondent: Submitting appearance, save as to costs.

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 370 of 2014

KIRTIKUMAR RANCHHODBHAI PATEL

First Applicant

NEHABEN HASMUKHBHAI PATEL

Second Applicant

BHAVYA PATEL

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This proceeding commenced on 21 November 2014 by the applicants filing an application (“Judicial Review Application”) seeking review under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Migration Review Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent (“Minister”) to refuse the applicants Temporary Business Entry (Class UC) - Subclass 457 (Business (Long Stay)) visas (“457 Visas”).

Factual and procedural background to the Judicial Review Application

1. The factual and procedural background to the Judicial Review Application is as follows:

   a)the applicants are citizens of India who applied for 457 Visas on 26 June 2013: Court Book (“CB”) 1, 32, 34 and 36;

   b)the application for the 457 Visas was based on a standard business sponsorship (“SBS”) of the first applicant by his employer, Prodigy Australia Pty Ltd. The second and third applicants are the first applicant’s spouse and child who were included in the application for the 457 Visas as secondary applicants: CB 1-13 and 40;

   c)on 27 August 2013 an officer of the then Department of Immigration and Citizenship (“Department”) wrote to the first applicant, via his authorised recipient, requesting evidence of completion of a migration skills assessment in his nominated occupation of Project or Program Administrator. The Department officer specified that the Department required a certified copy of an assessment conducted by VETASSESS which detailed the occupation and the qualifications that were assessed: CB 40;

   d)on 20 January 2014 the first applicant provided an assessment by VETASSESS dated 19 December 2013. The first applicant was assessed as not meeting the skills assessment requirements for his nominated occupation: CB 43-44 and 49;

   e)on 21 January 2014 the Delegate refused to grant the applicants 457 Visas, on the basis that cl.457.223(4)(e) of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) was not met, as the Delegate was not satisfied that the first applicant had demonstrated he had the necessary skills to successfully perform the nominated occupation. The applicants were advised of the Delegate’s Decision by letter from the Department dated 21 January 2014: CB 45-49;

   f)on 30 January 2014 the applicants applied to the Tribunal for review of the Delegate’s Decision. The applicants were assisted in the review proceedings by a registered migration agent, Mr Shoaib Vahora: CB 53-63;

   g)by letter dated 9 October 2014 the Tribunal wrote to the applicants inviting them, pursuant to s.359(2) of the Migration Act, to provide information that the first applicant had a positive skills assessment by VETASSESS for the nominated occupation of Program or Project Administrator, as specified by the Department in their request dated 27 August 2013. The Tribunal requested the information by 3 November 2014: CB 80. The Tribunal further advised the applicants (at CB 80) that if the Tribunal did not receive the information within the period allowed or as extended:

   i)the Tribunal may make a decision on the application for review without taking any further action to obtain the information; and

   ii)the applicants would lose any entitlement they might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments;

   h)on 4 November 2014 Mr Vahora wrote to the Tribunal:

   i)advising that the first applicant had been offered new employment and that his new employer had applied to the Department on 30 October 2014 for SBS approval; and

   ii)requested the Tribunal “to keep the decision on hold until we provide approval of new SBS and nomination for our client”: CB 81;

   i)on 5 November 2014 the Tribunal affirmed the Delegate’s Decision not to grant the 457 Visas to the applicants. The applicants were advised of the Tribunal Decision by letter dated 6 November 2014: CB 85 and 91; and

   j)on 21 November 2014 the applicants lodged the Judicial Review Application with this Court seeking review of the Tribunal Decision.

The Judicial Review Application

1. In the Judicial Review Application the applicants seek review of the Tribunal decision on the following ground:

   1. The Migration Review Tribunal has made decision on 457 applications without accepting my request at hearing. I requested the member to provide me few days time where my new employer can apply new nomination ASAP. The sponsorship of the employer was approved and my employer was about to lodge new nomination application which can be resulted in my favour. The new employer was in process to apply nomination and he and migration agent required time to prepare documents and submit the application with DIBP. Up on lodgement of nomination, it will have positive effect on outcome of my 457 visa application. The MRT member did not considered my request for waiting for few days where I was about to provide the receipt of new nomination application.

2. In essence, the applicants assert that the Tribunal’s failure to delay making the Tribunal Decision was unreasonable in the sense discussed by the High Court in Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225 (“Li”), and, therefore, the Tribunal Decision was affected by jurisdictional error.

3. The applicants have not filed and served any amended application, affidavits or an outline of submissions prior to the hearing, notwithstanding orders of a Registrar of this Court on 4 February 2015 permitting them to do so.

Consideration

1. The applicants:

   a)were invited on 9 October 2014 by the Tribunal (as set out at [2] above) to give information, pursuant to s.359(2) of the Migration Act, that the first applicant had a positive skills assessment by VETASSESS for his nominated occupation. The Tribunal’s written invitation:

   i)was sent to the applicants’ address for service by pre-paid post in accordance with s.379A(4) of the Migration Act;

   ii)complied with the requirements of s.359B(1) of the Migration Act; and

   iii)gave the applicants the prescribed period of notice, namely 14 days, in accordance with s.359B(2) of the Migration Act and reg.4.17(4) of the Migration Regulations; and

   b)were advised in the Tribunal’s written invitation that if the Tribunal did not receive the information within the period allowed or as extended:

   i)the Tribunal may make a decision on the review without taking any further action to obtain the information; and

   ii)the applicants would also lose any entitlement they might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.

2. As the applicants did not provide the information within the prescribed period and no extension of time was sought by 3 November 2014, the Tribunal was entitled, pursuant to s.359C(1) of the Migration Act, to make a decision on the review without taking any further action to obtain the information. As a consequence of the failure to provide information to the Tribunal:

   a)the applicants were not entitled to appear before the Tribunal: Migration Act, s.360(3); and

   b)the Tribunal had no power to permit the applicants to appear before the Tribunal: Migration Act, s.363A; Minister for Immigration & Multicultural & Indigenous Affairs v Sun & Anor [2005] FCAFC 201; (2005) 146 FCR 498; Hasran v Minister for Immigration & Citizenship & Anor [2010] FCAFC 40; (2010) 183 FCR 413 at [25]-[30] per Jacobson, Gilmour and Foster JJ.

   In any event, the applicants do not complain about a denial of procedural fairness in the Tribunal hearing, but rather that the Tribunal acted unreasonably in failing to allow further time for the putative employer to obtain SBS approval.

3. The relevant principles in relation to legal unreasonableness as explained by the High Court in Li, and subsequently by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280; (2014) 139 ALD 50 have been summarised by the Federal Court in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) as follows:

   (a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].

   (b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].

   (c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].

   (d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45 ]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].

   (e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].

   (f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].

   (g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].

   (h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].

   (i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].

   (j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].

   Pandey at [41] per Wigney J.

4. The assertion that the first applicant requested the Tribunal to provide him with a “few days time” to allow his new employer to lodge a new nomination application is factually incorrect. The request received by the Tribunal, by email dated 4 November 2014, from the applicants' representative, Mr Vahora, requested the Tribunal “to keep the decision on hold until we provide approval of new SBS and nomination for our client”: CB 81.

5. The Tribunal considered the applicants’ request to delay making the Tribunal Decision. The Tribunal found that:

   a)the request was for an indeterminate period of time and for an unknown outcome;

   b)the request did not address the relevant issue, which was the skills assessment;

   c)there was no indication as to when the necessary skills assessment would be forthcoming: CB 87 at [11]. It is pertinent to note (and is implicit in this last finding) that the applicants did not request the Tribunal to delay making a decision so that the applicant could obtain a positive skills assessment by VETASSESS as requested by the Tribunal;

   d)the requested skills assessment had not been provided, that no extension of time in which to provide it had been sought and none had been granted, and that as a consequence the Tribunal may make a decision without taking any further action to obtain additional information, and that the applicants were not entitled to appear before the Tribunal: at CB 87 at [12]; citing Migration Act, ss.359, 359C and 360(3), and given the failure to provide the requested information, the lack of evidence to support a finding that the applicant had the necessary skills, and noting that the applicants had been assisted by a registered migration agent, the Tribunal decided to proceed to make the Tribunal Decision without taking any further steps to obtain the information: CB 87 at [12]; and

   e)in the absence of a positive skills assessment for the nominated occupation the Tribunal found that it had not been demonstrated that the skills necessary to perform the nominated occupation had been demonstrated in the manner specified by cl.457.223(4)(e) of Schedule 2 to the Migration Regulations, and that the relevant requirements for the 457 Visas had not been made out, and consequently the Tribunal affirmed the Delegate’s Decision not to grant the 457 Visas: CB 87 at [13]-[17].

6. This was no short adjournment being sought. Rather, it was an adjournment to allow the applicants to commence the entire SBS nomination and approval process anew. For the reasons set out by the Tribunal, and summarised above, the adjournment sought would not have made any difference to the ultimate outcome of the present application for 457 Visas, which, in the absence of the relevant skills assessment for the nominated position, could never have been granted by the Tribunal because the legislative criterion in cl.457.223(4)(e) of Schedule 2 to the Migration Regulations was not met. Further, the applicants were not now seeking to meet that criterion by providing the skills assessment, but rather to embark upon an entirely new SBS nomination and approval process. The Tribunal:

   a)did not make an arbitrary, capricious or unjust decision, but rather one based firmly upon the relevant legislative criteria, after affording the applicants adequate opportunity to demonstrate that that criteria could be met, which the applicants failed to do;

   b)the Tribunal’s reasons for making the Tribunal Decision are plainly evident, transparent and intelligible on the face of the Tribunal Decision;

   c)the first applicant had had almost 17 months to obtain and provide the relevant skills assessment, but had not done so, and the adjournment sought was not to provide the skills assessment relevant to the 457 Visas applications, but rather to embark upon a new SBS nomination and approval process, which would have required the process to begin anew; and

   d)embarking upon a new SBS and nomination application approval process would not have assisted the applicants to obtain the positive skills assessment required for the 457 Visas applied for in this instance.

7. The Tribunal’s rejection of the applicants’ request to delay making its decision was not therefore unreasonable or irrational in the sense discussed by the High Court in Li. It was open to the Tribunal to proceed to make a decision on the application to the Tribunal and there was no error, and in particular no jurisdictional error, in refusing to delay the Tribunal Decision.

8. Having regard to the first applicant’s failure to provide evidence of a positive skills assessment, the first applicant clearly did not meet the requirements of cl.457.223(4)(e) of Schedule 2 to the Migration Regulations, and the only decision open to the Tribunal therefore, was to affirm the Delegate’s Decision not to grant the 457 Visas to the applicants. It follows that the Tribunal Decision was not affected by jurisdictional error.

Request for a lawyer

1. At the hearing before this Court, and after having commenced and made some submissions in reply, the first applicant asked if the applicants “could have a lawyer”. The Court refused that request indicating that:

   a)the request was made too late in the proceedings;

   b)there was no evidentiary basis on which the Court could properly assess the relevant criteria for a request for a pro-bono lawyer: see Federal Circuit Court Rules 2001 (Cth), r.12.02;

   c)the applicants had no entitlement to a Court-appointed lawyer: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs[2006] FCA 702 at [4] per Gyles J; SZQRU v Minister for Immigration & Citizenship[2012] FCA 1234 at [24] per Katzmann J; WZANN v Minister for Immigration & Anor[2009] FMCA 643 at [3] and [9] per Lucev FM; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev;

   d)the applicants had had ample opportunity to arrange a lawyer privately if one was required, but had not done so; and

   e)the above factors, taken together with the circumstances of the case, as now outlined above (especially at [6]-[7] and [9]-[14]) did not warrant the appointment of a lawyer at such a late stage of the proceedings.

Conclusions and orders

1. The Court has concluded that:

   a)the Tribunal afforded the applicants the opportunity to provide evidence of a relevant skills assessment for the first applicant at the Tribunal hearing;

   b)the Tribunal did not act unreasonably in not granting an adjournment and in not delaying to make the Tribunal Decision;

   c)the absence of evidence of a positive skills assessment for the first applicant meant that the requirements of cl.457.223(4)(e) of Schedule 2 to the Migration Regulations were not met, and the Tribunal therefore had to affirm the Delegate’s Decision not to grant the 457 Visas to the applicants; and

   d)there is no jurisdictional error in the Tribunal Decision.

2. It follows that there must be an order dismissing the Judicial Review Application, and the Court orders accordingly.

3. The Court will hear the parties as to costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 29 May 2015