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Sajjan v Minister for Immigration & Anor [2016] FCCA 3093 (14 December 2016)

Federal Circuit Court of Australia

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Sajjan v Minister for Immigration & Anor [2016] FCCA 3093 (14 December 2016)

Last Updated: 17 January 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAJJAN v MINISTER FOR IMMIGRATION & ANOR


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:
  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:
  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:
  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:
  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):
  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):
  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:

(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 subs.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:
  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. Section 359C of the Act relevantly provides :25. (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:
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:
  2. Section 363A of the Act further provides that:
Consideration
  1. The question of whether s.359C of the Act applies and hence, whether subs.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]:
  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:
    1. 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;
    2. the Applicant is not entitled to appear before the Tribunal; and
    1. 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]:
  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:
    1. the Tribunal had jurisdiction to exercise its discretion under s.359C of the Act not to take further steps to obtain the information;
    2. the Applicant was not entitled to appear before the Tribunal: s.360(3) of the Act; and
    1. 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

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