Shri Shiva Mandir Ltd v Minister for Immigration

This matter concerned an application for approval of a nomination under the Direct Entry Nomination stream of the *Migration Act 1958* (Cth). The applicant, Shri Shiva Mandir Ltd (SSM), sought review of a delegate's decision to refuse its application. The delegate had refused the application on the basis that SSM's nomination did not satisfy regulation 5.19(4)(b) of the *Migration Regulations 1994* (Cth), as the delegate was not satisfied that the nominator was actively operating in Australia. The Administrative Appeals Tribunal (AAT) was asked to determine whether SSM met this criterion.

The primary legal issue before the court was whether the AAT had erred in law by proceeding to make a decision on the review without further action to obtain information from SSM, and without allowing SSM to appear before it to give evidence and present arguments. This involved considering the effect of section 359 of the *Migration Act 1958* (Cth), which allows the Tribunal to invite parties to provide information, and sections 359C, 360(3), and 363A of the Act, which govern the consequences of failing to provide such information and the entitlement to a hearing. The court also had to consider whether the AAT's finding that SSM had not provided sufficient evidence to satisfy regulation 5.19(4)(b) was open to it on the material before it.

The court noted that the Tribunal had written to SSM on 28 July 2016, inviting it to provide information to demonstrate compliance with regulation 5.19(4) by 11 August 2016. The letter explicitly warned that failure to provide the information within the period allowed could result in a decision being made without further action and the loss of entitlement to appear before the Tribunal. SSM did not provide the requested information by the deadline, nor was an extension granted. Consequently, the Tribunal applied section 359C of the Act, which meant SSM was not entitled to appear before it under section 360(3). The court affirmed that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear, as established in *Hasran v MIAC* [2010] FCAFC 40. The Tribunal then proceeded to make its decision on the basis of the material before it, finding that there was no current evidence to indicate that the nominator was actively and lawfully operating a business in Australia, and therefore regulation 5.19(4)(b) was not met.