FEDERAL COURT OF AUSTRALIA

Chhetri v Minister for Immigration and Border Protection [2016] FCA 734

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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

GLEESON J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”) dismissing an application for judicial review of a decision of the Migration Review Tribunal (“MRT” or “Tribunal”): Chhetri v Minister for Immigration and Border Protection [2015] FCCA 3101.

2    The decision of the MRT affirmed an earlier decision of a delegate of the Minister (“delegate”) refusing to grant the appellant (“Mr Chhetri”) a Temporary Business Entry (Class UC) visa (“visa”) under the Migration Act 1958 (Cth) (“Act”).

3    The grounds for Mr Chhetri’s application to the FCCA, dismissed by the FCCA judge, were:

1.    The decision of the MRT involves jurisdictional error.

2.    The MRT ignored relevant material.

4    The notice of appeal in this Court specifies one ground of appeal, namely:

[The FCCA judge] erred in law when he upheld the decision of the [MRT] not to adjourn its decision and found that its discretion did not miscarry thereby in circumstances where [Mr Chhetri], a review applicant for a 457 business long stay visa by the regulations was required to have in place a nomination and was awaiting a departmental decision on such nomination by his sponsor.

Background Facts

5    Mr Chhetri applied for the visa on 31 October 2013.

6    The criteria for the visa are not in dispute. Relevantly, Mr Chhetri required a nomination of an occupation approved under s 140GB of the Act.

7    An application for approval of a nomination of an occupation in relation to Mr Chhetri was refused on 27 February 2014. On 4 April 2014, the delegate refused to grant Mr Chhetri the visa on the basis that he had no such approved nomination (“visa decision”). Mr Chhetri applied to the MRT for a review of the visa decision.

8    The MRT affirmed the decision not to approve the nomination on 16 March 2015.

9    On 30 March 2015, a further application was lodged for approval of a nomination of an occupation in relation to Mr Chhetri. That nomination was lodged by the same employer in relation to the same occupation.

10    The further nomination approval application was refused on 15 May 2015.

MRT Hearing

11    The MRT conducted a hearing in relation to Mr Chhetri’s application for review of the visa decision on 13 May 2015. Mr Chhetri attended that hearing with his representative.

12    At the hearing, Mr Chhetri submitted evidence of the 30 March 2015 application. The MRT decision record noted that it was lodged by the same employer for the same occupation as the earlier unsuccessful nomination approval application.

13    The MRT decision then records the following matters:

12.    At the hearing, the applicant acknowledged that the new nomination had not yet been decided. The Tribunal indicated that the outcome of the new nomination was uncertain, and stated that in the circumstances where the Tribunal had already made a decision to affirm the refusal of a nomination of the same occupation by the same employer in relation to the applicant, it considered it might not be warranted to delay making a decision on the review. The applicant indicated that he hoped the Tribunal could wait until the new nomination was decided, but had no further matter to raise. The applicant’s representative acknowledged that the Department’s previous nomination refusal had been affirmed by the Tribunal, but stated that he was hopeful the new nomination would be approved. He supported a request for the Tribunal to wait for the Department’s decision on the new nomination.

13.    The Tribunal has considered the request to delay making a decision on the review until the Department makes its decision on the new nomination lodged by the applicant’s employer on 30 March 2015. However the Tribunal considers that in the circumstances of this case, it is not warranted to adjourn the review until the Department makes a decision on the new nomination, given that the application for the visa was made in October 2013, and particularly given that in March 2015, the Tribunal had made a decision to affirm the Department’s refusal of a nomination of the same occupation, made by the same employer, in relation to the applicant. As noted by the Federal Court in Huo v. Minister for Immigration and Multicultural Affairs [2002] FCA 617 in matters where a visa application seeks adjournments in connection with further applications for business sponsor or nomination approval:

If [the Tribunal] was under no obligation to postpone its decision-making merely because Mr Hou [sic] wished to attempt, either at departmental level or in the forum of another Tribunal hearing, to meet statutory criterion found not as yet to have been fulfilled.

14.    The Tribunal is therefore not satisfied, on the evidence before it, that there is an approved nomination of an occupation relating to the applicant, made by a standard business sponsor, which has not ceased. In these circumstances, the Tribunal is not satisfied that the applicant meets the requirements of cl.457.223(4)(a).

14    Consequently, the MRT found that Mr Chhetri did not meet the requirements for the standard business sponsor stream. Accordingly, the MRT affirmed the visa decision.

FCCA Decision

15    At the hearing before the FCCA on 19 November 2015, Mr Chhetri’s lawyer argued that the MRT had committed jurisdictional error on the basis that it had unreasonably refused to grant Mr Chhetri an adjournment, relying on the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”).

16    The FCCA judge rejected that argument, on the basis that the MRT’s decision was justified by reference to the facts that the further nomination approval application was by the same employer for the same occupation and that the visa application had been made in 2013. While it is not clear how the latter consideration might have justified the decision to refuse to adjourn, the former consideration did provide a justification because, without more, the further nomination approval application did not provide a sound basis for expecting that Mr Chhetri could satisfy the nomination criterion for the visa.

17    The FCCA judge also accepted the Minister’s argument that any denial of procedural fairness by the MRT did not result in any practical injustice to Mr Chhetri, by reason of the fact that the nomination was refused on 15 May 2015.

Appellant’s submissions to this Court

18    Written submissions prepared by Mr Newman, who appeared on behalf of Mr Chhetri, raised the following matters:

(1)    A contention that the letter issued by the MRT pursuant to s 359A of the Act, purporting to provide clear particulars of information that the MRT considered would be the reason, or a part of the reason, for affirming the decision under review, was defective;

(2)    The circumstances of the case did not warrant the MRT refusing to grant an adjournment, including the MRT’s own delay in refusing to approve the first nomination application;

(3)    A complaint about the reasoning of Conti J in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 (“Huo”).

19    None of these matters is relevant to whether the FCCA judge made an appellable error. This, no doubt, explains why they were not addressed by Mr Newman orally at the hearing of the appeal.

20    At the appeal, Mr Newman submitted that “if this appeal settles around the question of a discretion, my submission is that that discretion in effect was not exercised”. He stated that the MRT was required to consider whether it should or should not allow time for “the hearing of this other application, the subsequent application by the employer”. I understood Mr Newman to be saying, by this submission, that the proposed adjournment was required to permit the Department to decide whether to approve the further nomination application. This was what Mr Chhetri requested from the MRT.

21    Mr Newman complained that “what the tribunal did was it disqualified the applicant before getting to the question of the exercise of the discretion”. Mr Newman contended that the Tribunal “disqualified” Mr Chhetri because he did not have an approved nomination “[s]o there’s no exercise of the discretion”. He argued:

If they had really attempted to formulate a decision based on their discretion, then it would have considered a number of factors because that’s only one of them.

Another one would be whether he has the qualifications and experience and the whole host of other requirements in which your Honour can see not one is referred to in the short decision of the Tribunal. So at the risk of labouring the point, the Tribunal does not exercise a discretion. It disqualifies him on something it ought to have considered more deeply and, in fact, in this decision, with great respect to the member, there was no consideration, there was no – deep or otherwise. There was simply a disqualification of the appellant.

Consideration

22    I do not accept Mr Newman’s argument that the MRT erred in failing to exercise any relevant discretion. Paragraphs 12 and 13 of the MRT decision show that the MRT:

(1)    Raised with the applicant its provisional view that the further application for approval of a nomination might not warrant a delay in conducting a review of the delegate’s decision to refuse to grant Mr Chhetri a visa;

(2)    Received the following submissions in response:

(a)    Mr Chhetri said that he “hoped the Tribunal could wait until the new nomination was decided, but had no further matter to raise”;

(b)    Mr Chhetri’s representative stated that he was “hopeful the new nomination would be approved” and he “supported a request for the Tribunal to wait for the Department’s decision on the new nomination”;

(3)    Considered Mr Chhetri’s request, which was to delay making a decision on the review until after the Department’s decision on the new nomination, but rejected it for three reasons, being:

(a)    the visa application was made in October 2013;

(b)    in March 2015 the MRT had affirmed the Department’s refusal to approve an earlier similar nomination;

(c)    the proposition stated by Conti J in Huo, that the Tribunal was not obliged to postpone its decision making merely to give the visa applicant an opportunity to attempt to meet statutory criterion found not as yet to have been fulfilled.

23    The decision shows that the MRT recognised that it had a discretion to adjourn its review. It gave due consideration to the question whether to exercise the discretion, but decided not to exercise it for reasons it gave.

24    The MRT did not have any other relevant discretion. Mr Chhetri’s qualifications and experience and whether he satisfied other requirements for the grant of the visa were not relevant to the discretion to adjourn the review, in the absence of any reason to believe that the further nomination application would be approved. Put another way, there was no reason to consider whether Mr Chhetri satisfied the other requirements for the visa unless there was a prospect that he could satisfy the nomination requirement.

Conclusion

25    None of the matters raised on behalf of the appellant demonstrates any appellable error on the part of the FCCA judge.

26    Accordingly, the appeal must be dismissed with costs.

Associate:

Dated:    23 June 2016