Uddin v Minister for Home Affairs
[2018] FCA 1294
•6 August 2018
FEDERAL COURT OF AUSTRALIA
Uddin v Minister for Home Affairs [2018] FCA 1294
Appeal from: Uddin v Minister for Immigration and Anor [2018] FCCA 565 File number: QUD 105 of 2018 Judge: LOGAN J Date of judgment: 6 August 2018 Catchwords: MIGRATION – appeal against Federal Circuit Court – application for review by Administrative Appeals Tribunal of refusal of temporary business entry visa – when there is no approved sponsor – whether Tribunal lacked jurisdiction – Migration Act 1958 (Cth) s 338(2)(d) – whether Tribunal denied appellant procedural fairness before reaching conclusion it lacked jurisdiction. Held – dismissed. Legislation: Migration Act1958 (Cth) s 338(2)(d)
Federal Court Rules 2011
Migration Regulations1994
Cases cited: Kioa v West [1985] 159 CLR 550 Date of hearing: 6 August 2018 Date of last submissions: 6 August 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the Respondents: Ms L Helsdon of Sparke Helmore Lawyers ORDERS
QUD 105 of 2018 BETWEEN: MOHAMMED IMAD UDDIN
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
6 AUGUST 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, which are fixed in the sum of $4,400.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised From Transcript)LOGAN J:
The appellant is a citizen of the Republic of India. On 20 October 2015, he applied under the Migration Act1958 (Cth) (the Act) for that class of visa known as a Temporary Business Entry (Class UC) (Subclass 457) visa. In respect of that visa, he nominated as his sponsor, Just Press Play Entertainment Proprietary Limited. On 9 January 2017, a delegate of the Minister, now known as the Minister for Home Affairs (Minister), refused to grant to the appellant that visa. The Minister is the only active party respondent to the present appeal. The other respondent, the Administrative Appeals Tribunal (Tribunal), has, unsurprisingly and appropriately, filed a submitting appearance.
There were two reasons why the Minister’s delegate’s decision was to refuse the visa application. These were related in a letter to the appellant of 9 January 2017. One was an absence of satisfaction in relation to his presence in Australia at the time when he made his application. That reason is of no present moment, because the appellant later lodged with the Tribunal factual material which satisfied the Tribunal that he was indeed present. The other reason of the Minister’s delegate for refusal does have an enduring relevance. That was that the appellant did not meet cl 457.223(4)(a) of Sch 2 to the Migration Regulations1994. That was because the delegate concluded that the appellant was not the subject of an approved nomination.
On 30 January 2017, the appellant applied to the Tribunal for the review of the Minister’s delegate’s visa refusal decision. The Tribunal formed a tentative view that the appellant’s review application might not be valid. It explained why that view was held in a letter to the appellant of 2 February 2017. In that letter, the Tribunal also extended to the appellant an opportunity to make any comments in writing by 16 February 2017 as to whether a valid review application had been made by him. As it happened, the appellant did not make any particular submission to the Tribunal in response to that invitation either by the nominated date or for that matter at any time prior to when the Tribunal gave its decision on 13 July 2017.
On 13 July 2017, for reasons given in writing, the Tribunal decided that it did not have jurisdiction to entertain the appellant’s review application. In so doing, the Tribunal acted upon its understanding of the application to the facts before it, of, materially, s 338(2)(d) of the Act. That provides:
(2)(d) where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i)the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii)an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
The appellant then applied to the Federal Circuit Court for the judicial review of the Tribunal’s decision. On 9 February 2018, for reasons delivered that day, the Federal Circuit Court dismissed with costs the appellant’s judicial review application. It is from that order of dismissal that the appellant now appeals to this Court.
The grounds specified in the appellant’s notice of Appeal are, with respect, discursive. It is certainly possible, as the Minister submitted, to read much of what is specified as grounds of appeal as a request for a review on the merits of the original visa application. There is a similar discursiveness evident in the appellant’s judicial review application in relation to asserted grounds of review. But in that court, there were issues raised and determined which could in law amount to jurisdictional error on the part of the Tribunal if determined in the appellant’s favour. One was whether the Tribunal was correct in determining that it had no jurisdiction. The other was whether it had, in reaching that conclusion, denied the appellant procedural fairness. As to each of those issues, the learned primary judge reached conclusions adverse to the appellant. His Honour found that the Tribunal was correct in its conclusion that it lacked jurisdiction. He also concluded that there had been no denial of procedural fairness. The correctness of these conclusions was at the heart of the appeal as argued.
It is convenient first to consider the procedural fairness issue. The existence or otherwise of jurisdiction in respect of his review application having the potential adversely to affect his personal interest, it was, in my view, incumbent on the Tribunal to afford him procedural fairness on the subject of the existence or otherwise of jurisdiction before making a decision on that subject. The question was not one governed by the statutory codification found in Pt 5, Div 5 of the Act in relation to procedural fairness obligations. Rather, the obligation to afford procedural fairness arose at common law: see, for example, Kioa v West [1985] 159 CLR 550. It arose at common law rather than by virtue of the codification because the latter could only have application to a validly instituted review application before the Tribunal. In my view, which accords with that of the learned primary judge, the Tribunal’s letter of 2 February 2017, satisfied the procedural fairness obligation which fell on the Tribunal in relation to the subject of its jurisdiction.
In his oral submissions, as I understood them, the appellant made reference to his not being in a fit state at the time to make a response to the Tribunal within the time the Tribunal had allowed. That was an assertion made from the bar table, but even if one accepts that this was indeed the case, the point is that the appellant did not enlighten the Tribunal at all as to any difficulty he had in making a submission in response to its invitation of 2 February 2017. So there is no question as to whether there was any unreasonable conduct on the part of the Tribunal in not allowing further time to make a response. All that the Tribunal knew was that an invitation had been given and no response had been made.
Insofar as it imposes a need for the extension of an opportunity to be heard, the common law is concerned with the extension of that opportunity, not with whether it is availed of. There is then no merit in the allegation of error on the part of the Federal Circuit Court in concluding that there was no jurisdictional error grounded in a denial of procedural fairness to the appellant by the Tribunal.
As to the substantive conclusion in relation to jurisdiction, it was in the appellant’s interest to place before the Tribunal, either at the time when he made his application, or in response to the invitation of 2 February 2017, material which would allow the making of a factual conclusion that one or the other of the jurisdictional criteria found in s 338(2)(d) of the Act was met in the circumstances of his case. As it was, the Tribunal had before it nothing to dissuade it from acting on the view reached by the Minister’s delegate. In other words, there was nothing in the material before the Tribunal which demonstrated either that the appellant had been sponsored by an approved sponsor, or for that matter, alternatively, that there was an application to review a decision to refuse to grant to Just Press Play Entertainment Proprietary Limited its refusal of sponsorship. Further, each of those criteria has, as the extract of the provision confirms, a very particular temporal focus. As it happened, it was not an absence of satisfaction as to the relevant time, but the absence at all of either an approved sponsor or a pending review of a sponsorship refusal, which were fatal to jurisdiction on the part of the Tribunal. The conclusion reached by the learned primary judge that the Tribunal was correct in holding that it had no jurisdiction was itself correct.
It necessarily follows that the appeal must be dismissed.
The Minister sought an order for costs fixed in the sum of $4400. Having regard to the amount set out in Sch 3, Pt 15 of the Federal Court Rules 2011, that amount did not strike me in the circumstances of this case as either excessive or, for that matter, unreasonable. The appellant did not resist the making of a costs order fixed in that amount on this basis, but rather on the basis of impecuniosity. That is not a reason to refuse a successful respondent an order for costs.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 24 August 2018
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