Patel v Minister for Immigration & Border Protection
[2016] FCCA 954
•28 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 954 |
| Catchwords: MIGRATION – Temporary Business Entry (Class UC) visa – application refused – review of decision of Migration Review Tribunal – whether the position nominated was genuine – whether the Tribunal’s delay of the decision amounts to jurisdictional error – delay did not affect Tribunal’s decision – no jurisdictional error – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), cl.457.223(4)(d) of sch.2 |
| Cases cited: Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population & Communities [2013] FCA 782 |
| First Applicant: | MITEN NATWARLAL PATEL |
| Second Applicant: | BINAL MITENKUMAR PATEL |
| Third Applicant: | PRATHAM MITENKUMAR PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 823 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 23 March 2016 |
| Date of Last Submission: | 6 April 2016 |
| Delivered at: | Sydney & by videolink to Perth |
| Delivered on: | 28 April 2016 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitor for the Respondents: | Mr T. Galvin, Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 823 of 2015
| MITEN NATWARLAL PATEL |
First Applicant
| BINAL MITENKUMAR PATEL |
Second Applicant
| PRATHAM MITENKUMAR PATEL |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first and second applicants are husband and wife. The third applicant is one of their children. On 15 February 2013 the first, second and third applicants (“the applicants”) applied for a Temporary Business Entry (Class UC) visa.
The class of visa for which the applicants applied had two subclasses, for only one of which the applicants applied, namely, Subclass 457. One of the criteria for the grant of that visa was set out in sub-cl.457.223(4)(d) of sch.2 to the Migration Regulations1994 (Cth). That criterion concerned the primary applicant (namely, the first applicant in these proceedings) and was that:
… The Minister is satisfied:
(i)the applicant’s intention to perform the occupation is genuine; and
(ii)the position associated with the nominated occupation is genuine; and
…
The reference to “occupation” and “nominated occupation” is a reference to the position in respect of which the primary applicant sought to be employed and for which he sought to be granted the visa.
In this case, the position in question was for a customer services manager within a Domino’s store in a suburb of Perth.
On 15 April 2013 a delegate of the Minister made a decision to refuse to grant the applicant a visa. The reason for that decision was that sub-cl.457.223(4)(d) was not met because the delegate did not consider that the position associated with the nominated occupation was genuine and so concluded that the primary applicant did not meet sub-paragraph (ii) of the criterion. Based on the size and structure of the workforce, the delegate did not find it plausible that the company required the services of a dedicated customer service manager operating at the level stipulated in ANZSCO. The delegate noted that the sponsoring business was a fast food outlet and that the occupation of Customer Service Manager was not considered appropriate for food services related positions.
The applicants applied to the Tribunal for review of that decision. The first and second applicants gave evidence at a hearing conducted by the Tribunal on 21 May 2014. In its reasons for decision, the Tribunal summarised that evidence as follows:
[10] The nominated position is that of customer service manager within a Domino’s store at Nedlands in Western Australia. At hearing the applicant gave evidence that he is called a store manager but he does the customer service manager position as well. I accept that Mr Patel is employed at Domino’s store at Nedlands. He has been employed there for approximately 5 years. The evidence given made it difficult for me to determine the exact nature of Mr Patel’s duties within the store. He indicated that he was trained as a store manager (which was the position sponsored under the RSMS permanent visa scheme) however Mr Patel indicated that there was also a vacant position within the business for a customer service manager. He explained that his boss was training him as a customer service manager. So far as I can determine Mr Patel indicated that Mr Handi (his employer) wants a store manager as well as a customer service manager position for the business. He said that he has not been trained as a customer service manager and that Mr Handi is training him in this position.
[11]Mr Patel’s evidence about the exact nature of his duties was difficult to establish but he did indicate that he does report to Mr Handi. He does do money handling and put the money in the safe. He also indicated that he helps to make sure that customers are happy, looks for customer feedback; checks whether with (sic) the staff are doing the correct thing, has some oversight in relation to the drivers, handles customer complaints, local marketing and training and makes sure the customers get the right food.
The Tribunal’s decision
On 4 March 2015, a little over nine months after the hearing, the Tribunal made its decision to affirm the decision of the delegate. It will be necessary in due course to consider the intervening events and the consequences of the delay.
In its reasons, the Tribunal first considered the first applicant’s oral evidence at the hearing (as set out above) and then the written submissions made by the applicants’ representative. The Tribunal’s critical reasoning was set out in the following paragraphs:
[24] The difficulty I have in the current case, and accepting that each case is decided on its own facts, is that the evidence before me from Mr Patel does not support the position of customer service manager in the nominating business. Whilst the representative has put forward extensive submissions to support the nominated position, the fact is that the oral evidence given was imprecise and did not support the nominated position.
[25] Ultimately, I am simply not satisfied on the basis of the evidence before me, that the position of customer service manager is genuine in the context of the nominating business. However I should record that I do not agree with the delegate’s proposition that because it is a fast food store it does not require a customer service manager.
[26] I reach this decision, noting that the nomination in relation to this visa application was apparently approved. However, as I have outlined, the oral evidence does not support the nominated position. I also note that the representative has provided examples of other businesses and the positions of customer service managers within them. The facts of each case may give rise to different outcomes, so examples of other customer service managers in other businesses, are not determinative for this particular matter.
[27] Consequently, I am not satisfied on the evidence before me that the position associated with the nominated occupation is genuine.
For those reasons the Tribunal was not satisfied that sub-cl.457.223(4)(d) was satisfied.
Consideration
The applicants now seek judicial review of the Tribunal’s decision. In order to succeed in this application, they must establish that the Tribunal’s decision was affected by jurisdictional error.
Ground raised in application
The only ground in the application is:
To justify genuine position
That ground is not helpful in ascertaining what error is said to arise from the Tribunal’s decision. However, it is clear that the gist of what the applicants are saying in these proceedings is that the Tribunal ought to have been satisfied that the nominated position was genuine. That, in effect, is no more than a statement of disagreement with the conclusion of a qualitative assessment made by the Tribunal. Such a disagreement does not support the conclusion that the Tribunal’s decision was affected by jurisdictional error.
For that reason, the ground of the application is rejected.
Ground raised at hearing
At the hearing of the matter the first applicant appeared unrepresented. Amongst other things, he complained that the Tribunal took over nine months from the date of the hearing to make its decision. That complaint could, in certain circumstances, establish jurisdictional error in the Tribunal’s decision: NAIS v Minister for Immigration and Multicultural & Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 (“NAIS”). However, as the matter had not been raised either in the application or in any written submissions by the applicants (of which there were none) I gave leave to the parties to file written submissions addressing that issue.
The parties filed written submissions, however, the applicants’ submissions went well beyond the issue in respect of which leave was granted and, to that extent, will not be taken into account: see MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 citing Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20 at 257-258 per Mason J; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [27]-[31] per McHugh J; NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48 at [191]-[192] per McHugh A-CJ, Gummow, Callinan and Heydon JJ; Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population & Communities [2013] FCA 782 at [2]-[5] and Singh v Secretary, Department of Employment & Workplace Relations [2009] FCAFC 59 at [66]-[72].
In NAIS the High Court, by majority (Gleeson CJ, Kirby J, Callinan J and Heydon J), found that excessive delay by the Refugee Review Tribunal in making its decision had infected that decision with jurisdictional error. Gleeson CJ noted that, because the Tribunal’s reasons ignored the question of the time that had elapsed, it could never be known how the assessment of the case was in fact affected by the delay. His Honour said, at [9]:
… A procedure that depends significantly upon the Tribunal’s assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal’s capacity to make such an assessment is impaired.
His Honour continued to explain, at [10], that what the appellants had to demonstrate was that the procedure was flawed, and flawed in a manner that was likely to affect the Tribunal’s capacity to make a proper assessment of their sincerity and reliability.
Justice Kirby, also in the majority, found, at [102], that by reason of the delay the “decision” of the Tribunal was presumptively flawed by jurisdictional error.
In a joint judgment, Justices Heydon and Callinan said, at [168]:
… it is not possible to say that the Tribunal’s decision, depending so much as it did, on the credibility of the appellants who gave oral evidence, was made fairly. …
The Justices in the minority, Gummow J and Hayne J, emphasised the distinction between judicial and administrative decision making, although neither disputed that delay in the particular circumstances of a given case may give rise to an inference that there has been jurisdictional error. Justice Gummow noted, at [42], that no general form of words will encapsulate all the circumstances in which delay may operate to establish jurisdictional error.
The principle underlying this decision is, as expressed by Heydon J and Callinan J at [171] is that unfairness can spring not only from a denial of an opportunity to present a case, but from denial of an opportunity to have it considered. Thus, in that case, it was important that the credit of the witnesses was one aspect of the Tribunal’s reasons for its decision (cf. SZFNX v Minister for Immigration & Citizenship (2010) 116 ALD 85; [2010] FCA 562, SZKJV v Minister for Immigration & Citizenship (2010) 120 ALD 52; [2011] FCA 80, SZQUY v Minister for Immigration & Citizenship [2012] FCA 856, MZYUM v Minister for Immigration & Citizenship [2013] FCA 51).
I note in passing that this principle, and the outcome of NAIS, could be inconsistent with decisions such as Liu v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 541; [2010] FCA 1362 (cf. SZHKA v Minister for Immigration & Citizenship (2008) 172 FCR 1; [2008] FCAFC 138) concerning the ability of the Tribunal to make a decision in circumstances where the member who heard and saw the evidence of the applicants was not the decision-maker.
For present purposes, the critical issue is whether it may be inferred from all the circumstances that the delay between the hearing and the decision made by the Tribunal was such that jurisdictional error may be inferred.
Before turning to examine the relevant circumstances, I note that the Minister relied upon a number of decisions in which it was held that a delay of roughly the same, or longer periods was not such as to give rise to the relevant inference. In my view, although I do not think that this was the purport of the Ministers submission, the question is not to be decided by mathematical comparison of the period of delay. In NAIS Gleeson CJ said, at [5], referring to Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 07 at 367 [101], that there was nothing in the Migration Act 1958 (Cth) that prescribes a time limit for decisions of the Tribunal and that the Court had no power to determine some such limit. To focus too narrowly on the period of time by reference to other decided cases would risk imposing a de facto time limit and so ignore the guidance given by the Chief Justice.
The hearing was conducted by the Tribunal on 21 May 2014. On 27 May 2014 the applicants’ representative provided post-hearing submissions. Nothing seems to have occurred between that and 6 November 2014, at which time the applicants’ representative wrote to the Tribunal by email requesting an update on the status of the matter and enquiring whether there had been a decision.
The Tribunal replied a week later apologising for the delay and asking whether there had been “any material alteration to the circumstances as outlined the Tribunal”. The applicants were requested to reply by 21 November 2014 to enable the Tribunal to proceed to finalise the matter.
On 21 November 2014 the applicants’ representative emailed the Tribunal indicating that the second applicant had given birth to a child on 25 October 2014.
By letter dated 5 February 2015 the representative again pressed the Tribunal to make a decision. The Tribunal acknowledged this email by email sent on 17 February 2015 and again apologised for the delay. The Tribunal again asked whether there had been “any change to the nature of your position, or the facts and circumstances which were provided about your matter at the hearing”.
On 18 February 2015 the representative informed the Tribunal by email that the first applicant’s employer had sold the business and requested that the application for review be withdrawn. On 19 February 2015 the Tribunal acknowledged that request and asked for confirmation of the withdrawal together with a signed withdrawal form.
That email was followed by a further email on 25 February 2015 seeking clarification whether the application was withdrawn and noting that, if not, the Tribunal would proceed to finalise the matter.
On 25 February 2015 the representative indicated to the Tribunal, by email, that the applicants did not want to withdraw the application and wanted the Tribunal to finalise the application. The Tribunal made its decision during the following week on 4 March 2015.
The Minister submitted that the delay in this case was not “inordinate” or “extreme” in the sense considered in NAIS and that there was nothing to suggest that the delay had any effect on the Tribunal’s evaluation of the applicants’ evidence such that there was a real and substantial risk that the Tribunal member’s capacity to assess the applicants’ case was impaired.
In reality, the only real delay that remains unexplained is the period from the submissions made after the hearing until the correspondence in November 2014. That is, the period of just over five months. I do not consider that to be an inordinate delay. It must be borne in mind that the Tribunal deals with a high volume of applications in a statutory context that has no set time limit for the making of decisions. Further, the Tribunal’s reasons reveal that the Tribunal did not reject the evidence given at the hearing and, more importantly, did not base its decision upon the credibility of that evidence. Rather, what was critical to the Tribunal was the lack of precision in the evidence. For that reason I am not satisfied that any inference can be drawn from the delay between the hearing and the decision being made that would give rise to the notion that the decision was affected by jurisdictional error, whether that be described as a denial of procedural fairness or otherwise.
The applicants’ written submissions include the argument that the delay in the making of the decision “contributed to the eventual sale of the sponsoring business”. The first applicant argued that due to the delay he has lost his employment and livelihood. Neither of those assertions is established on the evidence. There is simply nothing in the material before the Court to show that the sale of the business was in fact concluded or, if it had, that it would not have proceeded had the Tribunal made a decision earlier. Further, it cannot be inferred that there was any connection at all between the Tribunal’s decision and the sale of the business.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 28 April 2016
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