FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Tran [2011] FCA 1445

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Minister pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal by the Minister for Immigration and Citizenship (Minister) from orders made by a Federal Magistrate directing that a writ of certiorari issue to the Migration Review Tribunal (Tribunal) to quash a decision made by the Tribunal on 21 June 2010, and for the issue of a writ of mandamus directing the Tribunal to determine Mr Tran’s application for a review of the decision of the Minister’s delegate on 20 November 2008 according to law.

Facts

2    On 12 November 2008 Mr Tran applied for a Temporary Business Entry (Class UC) Subclass 457 visa.

3    On 20 November 2008 the Minister’s delegate refused the application on the ground that the delegate was not satisfied that Mr Tran could demonstrate a relevant skilled work experience within the criteria set out in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), and in particular cl 457.223(2)(d).

4    On 10 December 2008 Mr Tran lodged an application for review of the delegate’s decision with the Tribunal.

5    After that application was made the criteria in the Regulations for a Subclass 457 visa were amended with effect from 14 September 2009. The new criteria enabled the Minister (or the Tribunal in the case of a review) to require an applicant for a Subclass 457 visa to undergo a skills demonstration test.

6    On 1 October 2009 the Tribunal invited Mr Tran to give evidence and present arguments at a hearing on 19 November 2009.

7    On 16 March 2010 the Tribunal invited Mr Tran to provide evidence by 13 April 2010 in the form of a skills assessment for the purpose of cl 457.223(2)(d).

8    On 7 April 2010 Mr Tran applied for an extension of time because the person who was to conduct the test was not available until after 13 April 2010. On 8 April 2010 the Tribunal agreed that the evidence could be provided by 6 May 2010. Mr Tran provided the completed skills assessment to the Tribunal on 6 May 2010.

9    The Tribunal was apparently satisfied with the evidence provided on 6 May 2010 because on 18 May 2010 the Tribunal invited Mr Tran to provide by 15 June 2010 evidence upon which he relied to satisfy the remaining criteria in cl 457.223(2)(a), (b) and (c). In the letter requesting that further information the Tribunal wrote:

If you cannot provide the information by 15 June 2010, you may ask the Tribunal for an extension of time in which to provide the information. If you make such a request, it must be received by the Tribunal before 15 June 2010 and you must state the reason why the extension of time is required.

10    On 10 June 2010 Mr Tran’s migration agent wrote to the Tribunal seeking an extension of time within which to produce the evidence to satisfy the remaining criteria of cl 457.223(2). His agent wrote:

Please be advised that Western Exporters Pty Ltd will be lodging a nomination of a Skilled Meat Worker position for Mr Tran with the Department of Immigration and Citizenship by 15 June 2010. I understand that this application is being prepared by World Workers Migration Agent. Evidence of the lodged nomination will be sent to you as soon as possible.

The Writer will be away from the office from close of business 10 June 2010 and returning to the office on 16 June 2010. However, we will endeavour to provide you with a copy of the lodged nomination application as soon as possible on or shortly after 15 June 2010. In the circumstances, I would be grateful if you would consider the grant of an extension of time beyond 15 June 2010 to allow the Department of Immigration and Citizenship to assess the nomination application.

11    On 11 June 2010 the Tribunal replied to the application for an extension of time within which to provide the information. The Tribunal wrote:

I am writing about the applications for review made by you in relation to decisions to refuse to grant Temporary Business Entry (Class UC) visas.

On 18 May 2010 the Tribunal sent you an invitation to provide information.

On 10 June 2010 the Tribunal received a request for an extension of time to provide the information.

The Tribunal has considered the request carefully but has decided not to grant an extension of time. The information must therefore be received at the Tribunal by 15 June 2010, as previously advised.

If the Tribunal does not receive the information by 15 June 2010, the Tribunal may make a decision on the review without taking any further action to obtain the information.

12    On 15 June 2010 Mr Tran’s migration agent and solicitor provided the Tribunal with a copy of Mr Tran’s nomination application for a position with Western Meat Exporters “as promised in my letter of 10 June 2010”.

13    On 18 June 2010, without further reference to Mr Tran or his agent, the Tribunal affirmed the delegate’s decision that Mr Tran was not entitled to the grant of a Temporary Business Entry (Class UC) visa.

14    In its reasons the Tribunal discussed the evidence that had been given at the hearing on 18 November 2009 by Mr Tran, his wife and another person. It noted that on 6 May 2010 it had received a report from a Mr Eckhardt, who assessed Mr Tran as competent in the practical skills and technical units under consideration. Mr Eckhardt certified that he “…would consider him to have the necessary skills to perform the duties of a ‘slaughter person’ as described in the ASCO Code 4511-15.”

15    The Tribunal set out the letter it wrote on 18 May 2010 to Mr Tran. It noted that Mr Tran’s agent had requested an extension of time in which to respond to the Tribunal’s letter and that the Tribunal had declined to grant an extension of time. It further noted that on 15 June 2010 Mr Tran’s agent lodged by facsimile a copy of the nomination application by Western Meat Exporters for approval of a position for the visa applicant.

16    It noted that when the application was before the delegate cl 457.223(2) was in a different form to the form in which it was at the time that the application for review was before the Tribunal. The Tribunal noted that Mr Tran was seeking to meet the criteria in cl 457.223(2). It further noted that the issue which was before the delegate was whether the visa applicant satisfied cl 457.223(2)(d), and in particular whether he had demonstrated skills and experience suitable for the performance of the activity, and whether the requirements of the labour agreement had been met in relation to Mr Tran’s application.

17    The Tribunal noted that the criterion was amended on 14 September 2009. It found that after an assessment of the applicant’s demonstration of skills Mr Tran demonstrated that he had suitable skills and experience for the purpose of cl 457.223(2)(d). In that regard it reversed, albeit for different reasons, the delegate’s decision.

18    After referring again to the history of the matter, including Mr Tran’s application for an extension of time in which to respond to the Tribunal’s letter of 18 May 2010, the Tribunal said:

On 15 June 2010 the visa applicant’s agent lodged by facsimile a copy of a nomination application by Western Meat Exporters for approval of a position for the visa applicant for the purposes of satisfying subclause 457.223(4). That subclause is not satisfied until the application is approved and the visa applicant requested further time to allow Western Meat Exporters to obtain approval. The visa applicant essentially asked the Tribunal to delay making a decision on the review application until the nomination by Western Meat Exporters had been granted approval. The Tribunal decided to proceed to a decision. Whilst the Tribunal was prepared to defer making a decision to allow the visa applicant to undergo a skills assessment, it considers that he has had sufficient time to obtain a business nomination for the purposes of subclause 457.223(2) including (2)(a), either (2)(b)(i) or (2)(b)(ii) and (2)(c) or to adduce evidence of his satisfaction of one of the other alternatives to subclause 457.223. The Tribunal notes that the primary decision was made on 20 November 2008 and that the application for review was lodged on 10 December 2008. The Tribunal also notes that the application for approval of business nomination must meet a number of requirements. The Tribunal is not disposed to delay making a decision indefinitely pending the outcome of that process.

19    Mr Tran sought judicial review of the Tribunal’s decision on the ground that the refusal by the Tribunal of his request for an adjournment had denied him procedural fairness either at common law or pursuant to s 360 of the Migration Act 1958 (Cth) (the Act).

The Magistrate’s Reasons

20    The Federal Magistrate concluded that the Tribunal had fallen into jurisdictional error in refusing Mr Tran’s application for an adjournment, and therefore ordered that the constitutional writs issue.

21    During the course of the hearing the Federal Magistrate admitted an affidavit sworn by Ms May, a solicitor who had acted as Mr Tran’s registered migration agent, for the purpose of his application for review. The Federal Magistrate admitted paragraphs 16, 17 and 18 of that affidavit, in which Ms May deposed:

16.    The Migration Review Tribunal’s letter of 18 May 2010 was the first request from the Tribunal that the nomination under the Labour Agreement was required. Under Regulation 2.75, a nomination for an occupation in respect of a 457 visa is only valid for a period of twelve months from the date the nomination is approved. At the relevant time on 18 May 2010, it is my understanding that nominations under Labour Agreements were taking the DIAC approximately two to six weeks to process. In its letter of 18 May 2010 the Tribunal requested the relevant information by 15 June 2010. In fact, there was no nomination in place under the Labour Agreement as at 18 May 2010. It was therefore necessary to prepare and submit a nomination under the Labour Agreement. Evidence of an approved nomination under the Labour Agreement could have been provided to the Tribunal within a few weeks of 15 June 2010.

17.    On 10 June 2010 I wrote to the Migration Review Tribunal. That letter appears at page 87 of the Green Book. I requested an extension of time within which to allow Mr Tran to provide evidence of a lodged nomination. On 11 June 2010 I received a letter from the Migration Review Tribunal advising of a decision not to grant an extension of time.

18.    On 15 June 2010 I forwarded a facsimile transmission to the Tribunal attaching a copy of a lodged nomination. On 21 June 2010 I received a decision from the Migration Review Tribunal.

22    The first ground of appeal by the Minister is against the Federal Magistrate’s admission into evidence of paragraph 16 of Ms May’s affidavit.

23    The Federal Magistrate considered the question of s 360 of the Act. He noted that s 353(1) of the Act requires the Tribunal to carry out its functions with the objective of providing a mechanism of review that is fair, just, economical, informal and quick. He noted that s 357A of the Act provided that Division 5 of the Act must be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which the Tribunal deals. He noted that s 363 empowered the Tribunal to adjourn the review from time to time, but that no instruction is given in the Act as to when an adjournment should be allowed or refused.

24    The Federal Magistrate said that the power to adjourn must be one which is exercised reasonably, but that in the circumstances it was unreasonable for the Tribunal not to have regard to the relatively short delay which the adjournment sought by Mr Tran would have required.

25    The second ground of appeal is against the Federal Magistrate’s decision that the Tribunal’s refusal to adjourn the application was unreasonable.

26    On the appeal not much time was spent on the first ground of appeal. In the circumstances, this is not surprising. The evidence contained in Ms May’s affidavit was uncontroversial, and whether the Federal Magistrate should have admitted the evidence or not could not have been dispositive of the appeal.

27    In relation to the second ground of appeal, the question is not whether a decision-maker could not reasonably have refused an application for an adjournment, but rather whether the respondent was denied procedural fairness by the refusal to grant an adjournment. It was accepted by both sides that a failure to accede to a reasonable request for an adjournment might amount to procedural unfairness: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40] per Gaurdon and Gummow JJ.

28    In my opinion the Federal Magistrate was right to reach the conclusion that the request for the adjournment was reasonable. That conclusion meant that a failure by the Tribunal to accede to the request amounted to procedural unfairness.

Disposition of Appeal

29    I should briefly state my reasons for dismissing the appeal. The delegate refused Mr Tran’s application because the applicant was not able to satisfy the requirements of cl 457.223(2)(d) as it existed at the time the delegate was called upon to make the delegate’s decision. At that time cl 457.223(2)(d) provided:

457.223(2):    The applicant meets the requirements of this subclause if:

(d)    the Minister is satisfied that:

(i)    the skills and experience of the applicant are suitable for the performance of the activity; and

(ii)    the requirements of the labour agreement have been met in relation to the application.

30    The delegate made the decision on 20 November 2008. On 10 December 2008 Mr Tran applied to the Tribunal for a review of that decision.

31    Eleven months passed before the Tribunal took any action, and then on 1 October 2009 the Tribunal wrote to Mr Tran inviting him to appear before the Tribunal on 19 November 2009.

32    On 5 November 2009 the applicant provided to the Tribunal a number of documents in support of his application.

33    On 19 November 2009 the hearing took place. On 30 November 2009 Mr Tran’s agent provided further information to the Tribunal relating to Mr Tran’s employment history. On 25 January 2010 Mr Tran’s agent provided further information in support of the application.

34    On 16 March 2010 the Tribunal asked Mr Tran to provide evidence of the skills assessment relating to the duties of a slaughter person, and requested him to contact Mr Eckhardt at Southern Queensland Institute of TAFE in order to make the necessary arrangements. Mr Tran was requested to provide the information by 13 April 2010.

35    On 25 March 2010 Mr Tran’s agent wrote to the Tribunal pointing out that if Mr Tran’s skills assessment was to take place it would require Mr Tran to travel to Chinchilla in Queensland for that purpose. Mr Tran’s representative asked whether it would be possible to have an assessor visit Mr Tran in Charleville in Queensland, and advised the Tribunal that Mr Eckhardt would be available to assess Mr Tran when he was next in Charleville. The agent wrote, “This would avoid Mr Tran the expense and time in travelling to Chinchilla some five hours away. He would not lose a day of work.”

36    On 8 April 2010 the Tribunal advised that it would grant an extension of time until 6 May 2010. The information was provided by Mr Tran on 6 May 2010.

37    It was only after that information was provided that the Tribunal sought further information in relation to the remaining criteria of cl 457.223(2).

38    Mr Tran’s agent responded immediately seeking an extension of time within which to provide the information that had not been previously requested.

39    On 11 June 2010 the Tribunal wrote to Mr Tran refusing his application for an extension of time, but gave no reasons for doing so.

40    In its reasons published on 18 June 2010 it again gave no reasons for why the application was refused, except that it noted that the application for review was lodged on 10 December 2008.

41    There has been no delay on the part of Mr Tran. He has responded to all requests in a timely manner. It is true that he sought a short extension of time to provide the skills assessment, but the reasons for seeking that extension of time were reasonable, and indeed were treated by the Tribunal as being reasonable.

42    There was nothing unreasonable, in my opinion, in the further request for an extension of time within which to provide the further information, the request for further information having been made for the first time by the Tribunal on 18 May 2010.

43    The Tribunal did not ever ask Mr Tran’s agent how long was sought by way of extension, but it had been told in the letter from Mr Tran’s agent on 10 June 2010 that the evidence that was being sought would be sent to the Tribunal as soon as possible.

44    The Tribunal could not have reasonably concluded that there would be any inordinate delay in Mr Tran providing the information that had been requested.

45    The Tribunal must have understood that if it refused the adjournment Mr Tran’s application for a review would have to be dismissed because he would not have been able to satisfy all of the criteria in cl 457.223(2), and if his application for a review was refused he would not be entitled to any other visa and would have to leave the country: s 48 of the Act and reg 2.12 of the Regulations.

46    The Federal Magistrate found that the request for an extension of time was reasonable. The Federal Magistrate was right to reach that conclusion. In those circumstances the Tribunal committed jurisdictional error in refusing the request by Mr Tran.

47    The appeal must be dismissed and the Minister must pay Mr Tran’s costs.

Associate:

Dated:    21 December 2011