Sajjan v Minister for Immigration & Border Protection

[2016] FCCA 3093

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAJJAN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3093

Catchwords:
MIGRATION – Whether Tribunal’s decision to proceed to make a decision without obtaining further information and without a hearing gave rise to jurisdictional error – held that the Tribunal requested the Applicant provide information pursuant to s.359(2) of the Migration Act 1958 (“the Act”) and the Applicant did not give the information before the time to give the information had passed: s.359C(1) of the Act – held that the Tribunal was entitled to make a decision without taking further steps to obtain information: s.359C of the Act and Applicant not entitled to appear before Tribunal: s.360(3) of the Act – held Tribunal lacked jurisdiction to invite Applicant to appear at a hearing: s.363A of the Act – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359, 359C, 360, 363A
Migration Regulations 1994 (Cth), reg.2.75, cls.457.223, sch.2

Cases cited:

Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233

Applicant: MANDEEP SAJJAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 329 of 2015

Judgment of: Judge Jones

Hearing date: 7 September 2016

Date of Last Submission: 7 September 2016

Delivered at: Melbourne

Delivered on: 14 December 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Mr Day

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’.

2. The application for judicial review filed on 20 February 2015 be dismissed.

3. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 329 of 2015

MANDEEP SAJJAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant filed an Application for judicial review on 20 February 2015 of a decision of the (then) Migration Review Tribunal (“the Tribunal”) dated 2 February 2015, affirming a decision by a delegate of the First Respondent (“the delegate”) not to grant the Applicant a Temporary Business Entry (Class UC) visa (“the visa”).

Background

1. The Applicant is a male citizen of India.

2. On 25 June 2013, the Applicant applied for the visa on the basis that he had been nominated by his prospective employer for the position of Customer Service Manager. On 19 November 2013, the delegate refused the application on the basis that the position of Customer Service Manager was not necessary for the operation of the business. On 6 December 2013, the Applicant applied to the Tribunal to review the delegate's decision.

3. On 29 October 2014, the Tribunal sent a letter to the Applicant, titled “An Invitation to Provide Information” (CB 75), requesting the Applicant to provide information that “demonstrates that a nomination of an occupation made by a standard business sponsor in relation to you has been approved, and has not ceased…” The Tribunal informed the Applicant that “[i]f an approval of any nomination you held has ceased at the time the tribunal makes its decision, or nomination of an occupation has never been approved for you, you will not meet the criterion in cl.457.223(4)(a), which is a mandatory criterion for the visa”. In that invitation, the Applicant was advised that, if he did not respond by 24 November 2014, the Tribunal may proceed to make its decision without taking further steps to obtain the information, and the Applicant would lose the entitlement to appear before it.

4. On 24 November 2014, the Applicant's representative requested an adjournment to send the information (CB 78). The reason given for the adjournment request was as follows:

   I am in (sic) process of compiling the information you have requested but the Immigration departments (sic) system is dowm (sic) for last few days and is not available even today. I need to access some information related to this file… Please allow a couple of days for me to send the information to you.

5. The Tribunal granted this request and gave the Applicant until 17 December 2014 to provide the information (CB 80).

6. On 25 November 2014, the Applicant's representative provided to the Tribunal a letter from the Department, with an attachment which confirmed that the Applicant's sponsor had been approved on 21 October 2013 (CB 81). The correspondence stated:

   Dear Tribunal Officer,

   I am providing the information requested by you in relation to the review of VISA application of Mr MANDEEP SAJJAN.

   1- The Nomination for SS OZ GROUP PTY LTD… was approved on 21st November 2013 by Department of Immigration nominating Mr MANDEEP SAJJAN as the nominee. 

   The company is awaiting outcome of the visa application review and is happy to continue providing the nomination for Mr MANDEEP SAJJAN with whom they have a signed employment contract in place for a period of three years. 

   Please see attached document “IMMI Approval of Nomination Notification.pdf”

   2- The approved Nomination specifically states the nominated postion (sic) as “Occupation/Code: 149212 - Customer Service Manager” and nominee as “MANDEEP SAJJAN”.  All supporting documents were provided when demonstrating the need for this nominated occupation in the nomination application.

   We are providing a set of documents that demonstrate the GENUINE POSITION.  Please see attached documents…

   Please let us know if any further information is required to address the issue.

   regards

   Madan Gaindhar

7. On 26 November 2014, the Tribunal wrote to the Applicant noting that he had not provided all of the information requested in its letter of 29 October 2014 and, consequently, requested that he provide information demonstrating that he was the subject of a current nomination by 17 December 2014 (CB 91). The correspondence stated:

   The tribunal notes that you have not provided all of the information mentioned in the tribunal’s letter of 29 October 2014.

   In particular, you are required to provide information which demonstrates that a nomination of an occupation made by a standard business sponsor in relation to the visa applicant has been approved, and has not ceased, in accordance with cl. 457.223(4)(a).

   The visa applicant was informed that if an approval of any nomination he held has ceased at the time the tribunal makes its decision, he will not meet the criterion in cl.457.223(4)(a), which is a mandatory criterion for the visa.

   The visa applicant has stated that he had a nomination approved on 21 November 2013. If so, more than 12 months have passed since that approval and that nomination has automatically ceased. That suggests that the applicant does not have a current approved nomination.

   The tribunal notes that it is (sic) granted you an extension of time until 17 December 2014 to provide the information and suggests that you give the tribunal’s request your urgent attention.

8. On 16 December 2014, the Applicant's representative replied to this correspondence by confirming that the Applicant's nomination had expired, but that a request had been made to the Department for Immigration and Border Protection (“the Department”) to extend the  time of the nomination for the purpose of the review before the Tribunal (CB 93). That correspondence stated:

   Dear Tribunal officer,

   With regards to Mr Mandeep's Nomination, that expired its validity period of one year, I have requested the Department of Immigration to extend its validity until the review of this Visa application currently in process at MRT.  Once I receive an answer, I will update you on this matter.

   regards

   Madan Gaindhar

9. On 31 December 2014, the Applicant's representative wrote to the Tribunal stating, “I have received response from the Dept of Immigration today, which indicates an extension of time for the nomination is possible. Please see their response copied below for your records.” An email from the Department which stated inter alia that, “generally, the extensions can be provide for the nomination, and if the department's decision to refuse the visa is remitted, then a new nomination may be requested at that time” (CB 96).

10. On 7 January 2015, the Tribunal wrote to the Applicant under the heading “Loss Of Hearing Right”, stating (CB 101-102):

    On 29 October 2014, the Tribunal wrote to you in accordance with s.359(2) of the Migration Act, requesting information in regard to specific criteria concerning your application for review of a decision not to grant you a Subclass 457 Visa.

    …

    In your responses to the tribunal’s s.359(2) letter you indicate that your previous nomination has expired and you do not intend to seek to obtain an approved nomination until after the tribunal process is complete.

    The tribunal notes regarding your email of 16 December 2014 that there is no provision in the legislation for an ‘extension’ or revival of your previous nomination after it has ceased. The tribunal’s view is that such an extension or revival is not possible.

    You have not provided the information requested by the Tribunal within the prescribed period as extended. The Tribunal has no capacity under s.359B(4) to further extend the time for your response…

    In these circumstances, s.359C applies and pursuant to s.360(3) you are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if you have no entitlement to a hearing, the Tribunal has no power to permit you to appear…

    The Tribunal will now accordingly proceed to finalise your application for review.

11. The Tribunal did, however, give the Applicant until 21 January 2015 to provide further submissions or evidence in support of his application.

12. On 20 January 2015, the Applicant’s representative wrote to the Tribunal reiterating the previous position put, namely that (CB 103):

    According to the Department of Immigration of Border Protection (sic), a nomination that has expired its validity period of 12 months, is granted an extension when the dealy (sic) has occurred due to system and processing time taken. In this case the applicant or the nominating business has no control over the processing process of MRT and the expiration of the nomination period was beyond their control.

13. The correspondence referred to an extract from a similar case “where the department agrees to provide an extension in such cases…”

14. No further correspondence was exchanged between the Applicant, or his representative acting on his behalf, and the Tribunal. On 2 February 2015, the Tribunal made its decision without taking further steps to obtain the Applicant’s view on the information.

Requirements for the Visa

1. The visa the Applicant applied for was a Subclass 457 visa, the criteria for which are set out in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). One of those criteria is contained in cl.457.223(4)(a) of the Regulations. This criteria is a time of decision criteria.

2. Clause 457.223(4)(a) of the Regulations provides:

   Standard business sponsorship

   (4)  The applicant meets the requirements of this subclause if:

   (a)  each of the following applies:

   (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; and

   (aa)  the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect; and

   (ba)  either:

   (i)  the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

   (ii)  each of the following applies:

   (A)  the applicant is employed to work in the nominated occupation;

   (B)  if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

   (C)  if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

   (d)  the Minister is satisfied that:

   (i)  the applicant’s intention to perform the occupation is genuine; and

   (ii)  the position associated with the nominated occupation is genuine; and

   (da)  the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

   (e)  if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation—the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

   (eb)  if:

   (i)  the applicant is not an exempt applicant; and

   (ii)  subclause (6) does not apply to the applicant;

   the applicant:

   (iv)  has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

   (v)  achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

   (ec)  if the Minister requires the applicant to demonstrate his or her English language proficiency—the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

   (f)  either:

   (i)  there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

   (ii)  it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

   (6)  This subclause applies to an applicant if:

   (a)  the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

   (b)  the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

   (11)  In subclause (4):

   exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.

   (my emphasis)

Tribunal Decision

1. The issue before the Tribunal was whether there was an approved nomination of an occupation relating to the Applicant by a standard business sponsor which had not ceased (CB 110 at [19]).

2. In the decision record, the Tribunal set out its reasons for proceeding to make a decision without taking further action to obtain the Applicant’s view on the information and without conducting a hearing. It noted that by letter dated 29 October 2014, the Tribunal wrote to the Applicant pursuant to sub-s.359(2) of the Act, to provide information demonstrating that the Applicant was identified in an approved and current business nomination made by a standard business sponsor which had not ceased (CB 107 at [5]), and that it repeated this request on 26 November 2014 (CB 107 at [9]). It further noted the correspondence sent to the Applicant on 7 January 2015 headed “Loss of Hearing Right”, in which it informed the Applicant that, because he had failed to provide the information requested within the prescribed period as extended, s.359C of the Act applied and pursuant to sub‑s.360(3) of the Act, the Applicant was not entitled to appear before the Tribunal. It then stated that, in this circumstance, the Applicant has no entitlement to a hearing and the Tribunal has no power to permit the Applicant to appear: s.363A of the Act (CB 109-109)

3. The Tribunal then turned to consider the substantive application for review before it. The Tribunal accepted that the Applicant had been the subject of an approved nomination in 2013. However, it found that these nominations had ceased by at least 21 November 2014, by reason of the operation of reg.2.75(2)(b) of the Regulations (CB 110 at [20]). It also found that there was no provision in the Act or the Regulations to revive or extend nominations which had ceased (CB 111 at [25]).

4. In the circumstances, the Tribunal was not satisfied that there was an approved nomination of an occupation relating to the Applicant by a standard business sponsor which had not ceased (CB 111 at [27]) and, therefore, found that the requirements of cl.457.223(4)(a) to Schedule 2 of the Regulations were not met (CB 111 at [28]).

Judicial Review

1. The Applicant’s ground for judicial review is expressed as follows:

   In year 2012 I started my 457 process. I applied my Position Nomination approved and Business nomination approved. And I got it then after I applied my Visa file. After few month they asked my Immigration lawyer to provide documents. Immigration lawyer provided all documents. But case officer deny to approved my visa because he said Position does not match his criteria. If it is not match his criteria how come they approved my position nomination?

   After that I went to “MRT”. When MRT proceed they asked me to provide valid Business nomination again, which was already expired because MRT approved after a while (almost 1 year). I asked my owner to provide valid documents. But he do not want to spent money and time again. He is still happy to give me sponsorship. But do not want to do all processing again. MRT make their decision without any hearing. did not give me a chance to explain my problem?

2. I am satisfied, having heard the Applicant’s submissions, that this ground of review can be characterised as a failure of the Tribunal to provide the Applicant with an opportunity to attend a hearing before the Tribunal.

Statutory Framework

1. Section 359 of the Act relevantly provides:

   (1)  In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

   (2)  Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

   (3)  If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

   (a)  except where paragraph (b) applies—by one of the methods specified in section 379A; or

   (b)  if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

25.Section 359C of the Act relevantly provides :

(1)  If a person:

(a)  is invited in writing under section 359 to give information; and

(b)  does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the information.

(2)  If the applicant:

(a)  is invited under section 359A to comment on or respond to information; and

(b)  does not give the comments or the response before the time for giving them has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

1. Section 360 of the Act is as follows:

   (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2)  Subsection (1) does not apply if:

   (a)  the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

   (b)  the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)  subsection 359C(1) or (2) applies to the applicant.

   (3)  If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

1. Section 363A of the Act further provides that:

   If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.

Consideration

1. The question of whether s.359C of the Act applies and hence, whether sub‑s.360(3) of the Act applies and s.363A of the Act has effect, is a question of jurisdictional fact. In Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233 (“Saba Bros”), Jagot J said, with respect to the sub-s.359C(2) of the Act at [19]-[20]:

   19. The Minister acknowledged that the question whether s 359C(2) applied to Saba Bros is a jurisdictional fact. As explained in Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135; [2000] HCA 5 (Enfield) at [28]:

   The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.  Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.

   20. Applying this language to the present case, the “criterion” is the application of s 359C(2).  For the section to apply the requirements of both subsections (a) and (b) must be satisfied: that is, the applicant must both have been invited to comment on or respond to information under s 359A (s 359C(2)(a)), and must not have given the comments or response before the time for giving them had passed (s 359C(2)(b)).  The “mandated outcome” if s 359C(2) did not apply was the issuing of an invitation by the Tribunal to Saba Bros to attend a hearing (s 360(1)).  The “mandated outcome” if s 359C(2) did apply was the making of a decision by the Tribunal without issuing such an invitation (ss 359C(2), 360(2)-(3), 363A). 

2. This observation applies equally to sub-section.359C(1) of the Act.

3. The effect of these provisions of the Act, subject to the requirements of sub-ss.359C(1)(a) and (b) of the Act being met, are that:

   a)the Tribunal may exercise its discretion to make a decision on review without taking any further steps to obtain the relevant information: s.359C of the Act;

   b)the Applicant is not entitled to appear before the Tribunal; and

   c)the Tribunal lacks jurisdiction to invite the Applicant to attend a hearing: s.363A of the Act.

4. The first question to decide is whether the Tribunal invited the Applicant to give information. In Saba Bros, her Honour relevantly said at [42]:

   …In my view, however, the requirement that the Tribunal consider the information to meet the relevant description involves another minimum standard. It is that the information, at the time the Tribunal issues the invitation, must be rationally capable of being seen as information that would affect the decision under review. If the information, at the time the invitation is issued, is not rationally capable of being seen as information that would affect the decision under review then, again, the Tribunal’s action in issuing the invitation is a nullity. The Tribunal could not be said to have acted “under” s 359A as required in order to engage s 359C(2)(a), and again no consequence to an applicant could flow from a failure to respond to or comment on the information contained in such an invitation. By this, I do not mean to import notions of manifest or Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). I mean no more than that the information, at the time the invitation is given, must be capable of being seen as referable to the statutory power to be exercised (that is, the Tribunal’s powers in relation to the application for review) on some rational basis.

5. I am satisfied that the information the Tribunal invited the Applicant to provide is rationally capable of being seen as information that would affect the decision under review. The Applicant was invited to provide evidence of a valid nomination by a standard business sponsor. He was required to have a valid nomination in order to satisfy the requirements for the visa. Accordingly, I am satisfied that the Tribunal acted in accordance with sub-s.359(2) of the Act.

6. I am satisfied that the Applicant did not provide this information to the Tribunal. The Applicant provided information regarding a nomination which had expired, and informed the Tribunal that he was seeking an extension of the validity of the expired nomination from the Department. This did not amount to the giving of the requested information. At the request of the Applicant, the Tribunal extended the time for the Applicant to provide the information. The Applicant did not give the information before the extended time had passed. Accordingly, I am satisfied that the requirements of sub-ss.359C(1)(a) and (b) of the Act, as well as s.360(3) of the Act, were met.

7. I make the following findings:

   a)the Tribunal had jurisdiction to exercise its discretion under s.359C of the Act not to take further steps to obtain the information;

   b)the Applicant was not entitled to appear before the Tribunal: s.360(3) of the Act; and

   c)the Tribunal lacked jurisdiction to invite the Applicant to appear before it.

Conclusion

1. For the reasons set out in this judgment, I find that no jurisdictional error arises from the Applicant’s ground of review. The application for judicial review is dismissed and an Order made that the Applicant pay the First Respondent’s costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date:     14 December 2016