FEDERAL COURT OF AUSTRALIA

Bhandari v Minister for Immigration and Border Protection [2017] FCA 272

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs of and incidental to the appeal as taxed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 28 October 2016. His Honour dismissed an application for review of a 7 August 2014 decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal. The Tribunal had affirmed a 28 February 2013 decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellant a temporary business entry (Class UC) Subclass 457 – Business (Long Stay) visa under s 65 of the Migration Act 1958 (Cth).

Before the delegate

2    The delegate considered the appellant’s visa application in relation to both a Subclass 456 – Business (Short Stay) visa and in relation to a Subclass 457 – Business (Long Stay) visa. Because the information provided with the application indicated that the appellant was to be employed for more than three months, she did not meet the requirement that the applicant propose to remain in Australia for not more than three months on any single occasion. Accordingly she was not eligible for a Subclass 456 visa. There is no issue in relation to that aspect of the delegate’s decision.

3    The delegate then proceeded to consider the Subclass 457 visa. That visa was refused by the delegate upon the basis of not being satisfied that the appellant met the criterion in cl 457.223(4)(d)(ii) in Schedule 2 to the Migration Regulations 1994 (Cth), in that the delegate did not consider “the position associated with the nominated occupation [of facilities manager] to be genuine”.

Before the Tribunal

4    On 18 March 2013, the appellant applied to the Tribunal for a review of the delegate’s decision. On 15 April 2014, the Tribunal wrote to the appellant inviting her to provide the following information in writing (emphasis in original):

Information to demonstrate you are the subject of an approved business nomination which has not ceased as required by cl.457.223(4)(a) OR information to demonstrate you will meet this requirement in the near future and before a decision is made on your review application, for example by providing information to demonstrate that you have the current support of an approved business sponsor and that a nomination application for you is currently being processed by the Department of Immigration and Border Protection.

Please note: Under the Regulations, the approval of a business nomination for a subclass 457 visa ceases after 12 months (if it has not already ceased for another reason): r. 2.75. This means that nominations are valid for a maximum of 12 months and a new business nomination application by an approved business sponsor to the Department of Immigration and Border Protection will be required if a nomination has not been approved in the last 12 months.

5    On 13 May 2014, the appellant was invited to appear before the Tribunal at a hearing on 5 June 2014. The appellant appeared at that hearing. Of particular relevance to this appeal are [23]-[29] of the Tribunal’s reasons which were as follows:

23.    The Tribunal asked the applicant if the latest nomination had been approved as this was required by cl.457.223(4)(a). It asked if she had any comment to make about this issue. The applicant indicated that the Department had not yet made its decision. She indicated that the decision in relation to the nomination should be made early in July 2014. The Tribunal explained that if the nomination was not approved, she would not meet a requirement. She had no comment to make about this. The representative confirmed that she did not know whether Mr Khan would appeal the decision if it was refused. The Tribunal agreed to wait until the Department finalised the matter in relation to the nomination before it proceed to make its decision, and noted that if the nomination was not approved and the sponsor did not appeal it would have to affirm the decision. The Tribunal agreed to postpone making its decision until 4 July 2014.

24.    On 4 July 2014 the applicant’s representative wrote to the Tribunal, advising that the Department had refused the nomination application. He provided to the Tribunal a copy of the notification of refusal of the nomination application dated 2 July 2014 addressed to Shinemore Pty Ltd, and a copy of the delegate’s decision record, advising that the Department was not satisfied that the nominated occupation of facilities manager is a genuine position.

25.    On 10 July 2014 the applicant called the Tribunal and advised that she was organising a new sponsor and requested further time. She later wrote to the Tribunal and indicated that the problem with the nomination was her job title. She indicated she has now applied for other jobs and she has three interviews. She indicated that two of the employers are interested in sponsoring her. She indicated one position is for Motel Manager and the other is for Restaurant Manager. She asked the Tribunal to postpone making its decision so that she can pursue other employment and sponsorship. The Tribunal considered this request, but formed the view there is insufficient evidence that an approved nomination is forthcoming as she is still looking for an employer to sponsor her and there is no evidence that a new nomination application has been lodged.

26.    Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor and the approval of the nomination has not ceased.

27.    Under r.2.75 the approval of a nomination ceases 12 months after the day on which the nomination was approved, if it has not already ceased for another reason. The Tribunal invited the applicant to provide information to demonstrate that she is the subject of an approved business nomination which has not ceased as required by cl.457.223(4)(a). Prior to the hearing she provided evidence that a nomination application had been made by Shinemore however the Department had not made its decision. The Tribunal discussed this issue with the applicant at the hearing. After the hearing the applicant provided to the Tribunal documentary evidence confirming the nomination application by Shinemore was unsuccessful. There is no indication before the Tribunal that Shinemore is intending to apply for review of that decision.

28.    The applicant requested that the Tribunal postpone making its decision while she pursued other employment/sponsorship options. The Tribunal has considered this request but has not agreed to provide the applicant with further time to do this as the evidence she provided is vague and lacking in detail, and the Tribunal is not satisfied there will be an approved nomination, in respect of the applicant, in the foreseeable future.

29.    There is no evidence before the Tribunal that there is an approved nomination, in respect of the applicant, by a standard business sponsor and that the approval of the nomination has not ceased. There is no evidence before the Tribunal, at the time of the Tribunal’s decision, that there is a current approved nomination of an occupation, in relation to the applicant, that has been approved under s.140GB of the Act. The Tribunal finds that the applicant does not satisfy cl.457.223(4)(a)(i).

6    The Tribunal therefore affirmed the decision of the delegate not to grant the appellant a visa.

Before the Federal Circuit Court

7    On 3 September 2014, the appellant applied for judicial review of the Tribunal’s decision by the Federal Circuit Court. On 7 January 2015, the appellant filed an amended application.

8    The first ground of the amended application was that the Tribunal was unreasonable and/or procedurally unfair in failing to allow the appellant additional time to find and submit a nomination from an alternative sponsor and/or failing to give the appellant an opportunity to present a new nomination from the employer. Particulars were provided in support of that ground.

9    The second ground of alleged error concerned the Tribunal’s enquiries in relation to the position of “facilities manager”. While that ground failed before the primary judge, it was not pursued further on appeal and does not need to be considered further.

10    The primary judge reproduced the relevant portion of a 10 July 2014 Tribunal file note recording the appellant’s advice by telephone that she had a new sponsor and her request that she be given time to await the outcome of a new nomination application. His Honour also recorded the fact that the Tribunal officer who took the call informed the appellant that the Tribunal member had not yet made a decision and that she was welcome to put her request in writing. The appellant availed herself of that opportunity by way of an email sent to the Tribunal the same day. The relevant text of that email was reproduced by the primary judge as follows (errors in the original email):

I would like to request you regarding my case. As my case is in mrt and has been refused from department under 457 visa. My nomination was approved at first time but they refused my nomination this time. It’s just because of my job title (facilities manager). For last one month I had tried to apply for another jobs and I got three interviews and out of those two of them can sponsor me and put my file for new nomination. One is not 457 approved but he said he can talk to his solicitor if I get a positive response. I want to request you that could you kindly give me a chance to apply for another nomination under new employer. They are in regional area, one is for motel manager and another is for restaurant manager. They are happy to hire me for this position in their business.

11    No further information was provided by the appellant following the sending of this email. Counsel for the appellant was unable to identify anything which overtly stopped the appellant providing further information to the Tribunal in support of her application for more time before a decision was made, or to show what progress, if any, she was making in obtaining a new sponsor and thereby nomination. Instead counsel seemed to contend that once any such application was made there was some obligation on the Tribunal to identify its shortcomings or seek further information, rather than proceed to make a decision on the request for more time on the basis of the information that had been provided. No proper basis for such a contention was ever identified.

12    On 25 July 2014, just over two weeks after the appellant’s email, the Tribunal responded by letter, relevantly including the following:

The Tribunal has considered the evidence you have provided confirming that your sponsor’s application for approval of a nomination has been refused. It has also considered your request for further time but has decided not to agree to do this. It will now proceed to make its decision on the basis of the evidence before it.

13    The primary judge then noted the decision reached by the Tribunal and the reasons for it, also reproducing a number of key paragraphs from the Tribunal’s reasons.

14    Because ground one before the primary judge (which was the substance of the appeal in this Court) was a challenge based on alleged legal unreasonableness on the part of the Tribunal in denying the appellant an opportunity to seek a further sponsor, the primary judge directed himself to identify the subject matter, scope and purpose of s 363(1)(b) of the Migration Act, which provided the Tribunal with the power to adjourn the review before it “from time to time”. It was common ground that the primary judge correctly identified that subject matter, scope and purpose.

15    The primary judge found that it was reasonably open to the Tribunal to conclude that the appellant did not provide sufficient evidence that the appellant would be able to obtain an alternative sponsor in the foreseeable future. His Honour did not agree that the duty to act reasonably required the Tribunal to invite the appellant to a further hearing and question her about the steps she had taken to obtain alternative sponsors and the time by which she expected to achieve that. His Honour concluded that there was nothing in the material before him that could reasonably suggest that the applicant expected, or had reasonable grounds for expecting, that she would be given a further opportunity to be heard before the Tribunal made a decision on her request for an adjournment. His Honour was of the view that as the appellant was the one who was seeking the adjournment, it was, in effect, up to her to make her case for that to occur.

16    The immediate observation to be made about the conclusions reached by his Honour is that they appear, on a first reading, to be unexceptionable and inherently reasonable. It was a very far cry from the situation in the authorities in this area, referred to below, in which the refusal of an application for an adjournment or more time was found to cross the line and constitute jurisdictional error. The task for the appellant before the primary judge was to demonstrate not only that this was not so, but that any shortcoming in the Tribunal’s approach constituted a sufficient departure from the proper exercise of its jurisdiction as to amount to a jurisdictional error.

Before this Court

17    At the hearing of this appeal, leave was sought, not opposed by the Minister and granted for the appellant to file and rely upon an amended notice of appeal in the following terms:

1.    The primary judge erred by either misinterpreting, misunderstanding, or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to the decision by the Tribunal on 25 July 2014 at AB 191, to refuse the appellant an adjournment or to invite the appellant to a further hearing, to present evidence and arguments, regarding the steps she had taken to obtain sponsors for the grant of a Temporary Business Entry (Class UC)(subclass 457)(457 visa).

a)    At [18] of the judgement [sic]: “Whether or not the applicant had given evidence that was relevant to assessing whether the applicant would be able to secure an alternative sponsor, and the time by which she would be able to do so, are matters that were relevant to the Tribunal’s exercise of the discretion conferred by s.363(1)(b) of the Act. It was relevant to the objective of providing an economical and quick review. It was also relevant to conducting the review itself; the Tribunal had to be satisfied that it would be able to review the decision within some finite time. It could not be so satisfied unless there was some basis for concluding that at some point in the future the Tribunal would be able to review the application before it.”

b)    At [19]: “[Given that it was relevant to the exercise of the Tribunal’s power under s.363(1)(b) of the Act to consider whether the applicant would be able to obtain an alternative sponsor, and the time by which the applicant would be able to do so, the next question is whether it was reasonably open to the Tribunal to conclude that the applicant did not provide sufficient evidence to enable the Tribunal to conclude that the applicant would be able to obtain an alternative sponsor in the foreseeable future.] In my opinion, it was reasonably open to the Tribunal to so conclude, and for the reasons it gave. The applicant did not identify the name of the two employers the applicant claimed would sponsor her, she did not specify when the applicant was interviewed by the two employers whom she claimed were willing to actually apply to sponsor the applicant, and if so by when the applicant anticipated a nomination would be made and, if the employers were not standard business sponsors, by when the applicant expected the employers to make such applications.”

c)    At [20]: “The applicant submits the duty to act reasonably required the Tribunal to invite the applicant to a further hearing, and, at that hearing, question the applicant about the steps she had taken to obtain alternative sponsors, and the time by which she expected to do that. I do not agree with that submission. It was for the applicant to put before the Tribunal the evidence and submissions on which she relied for seeking the adjournment. There is nothing in the material that could reasonably suggest the applicant expected, or had reasonable grounds for expecting, that she would be given an opportunity to be heard before the Tribunal made a decision on the applicant’s request for an adjournment. It was the applicant who was seeking the adjournment; and it was for the applicant to put before the Tribunal the material she submitted ought to have reasonably led the Tribunal to grant the adjournment she sought.”

d)    At [21]: “Even if, contrary to my conclusion, the Tribunal was required to provide the applicant a hearing before it could reasonably have made a decision on the adjournment application, the question would have arisen about whether the applicant would be entitled to any relief.” […]

18    The paragraphs of the primary judge’s reasons reproduced above as particulars to the amended notice of appeal, with the omitted part of [19] reinserted in square brackets, are those which contain the nub of his Honour’s decision, and with the balance of [21] remaining omitted.

19    The complaint made about the first sentence of [21] of the primary judge’s reasons could only have arisen for consideration in the event the primary argument on appeal succeeded. That is because that sentence and indeed that entire paragraph entailed the primary judge providing an alternative basis for the conclusion that his Honour reached. It is not necessary to consider that alternative reasoning in light of the conclusions reached as to his Honour’s primary reasoning.

20    The substance of the complaint made in written and oral submissions made on behalf of the appellant was that his Honour had erred by misinterpreting, misunderstanding or misapplying the applicable law or had otherwise failed to ask the correct question as to whether it was reasonably open for the Tribunal to conclude that the appellant did not provide sufficient evidence to enable the Tribunal to conclude that she would be able to obtain an alternative sponsor in the foreseeable future. These complaints are styled as though the issue was one of jurisdictional error on the part of the primary judge. However, as was raised with counsel at the hearing of the appeal, what the appellant needed to establish was error on the part of the primary judge in failing to find jurisdictional error on the part of the Tribunal. That required more than arguments directed to showing how the Tribunal could have handled the adjournment application differently or other steps that it might have taken to get further information from the appellant. Unless the Tribunal proceeded in a manner that was sufficiently unreasonable as not to constitute the proper exercise of jurisdiction, the sorts of considerations raised on behalf of the appellant do not even amount to legal error, let alone jurisdictional error.

21    Counsel asserted that the duty to act reasonably required the Tribunal, I infer as a matter of procedural fairness going to the proper exercise of jurisdiction, not just to decide the application for an adjournment upon the basis of the material that she had advanced for that to take place, but to go much further. It was asserted that the Tribunal was obliged, in considering an adjournment application in which the possibility of a further sponsorship was raised with little in the way of detail, to invite the appellant to a further hearing. It was also asserted that the Tribunal was required at such further hearing in some way to cause the appellant to present evidence and arguments about the steps she had taken to obtain alternative sponsors and the time by which she expected to do that. It also seemed to be suggested that, in the alternative, the Tribunal was required to take steps to ensure that a similar outcome was achieved by way of it seeking the provision of further documents to it by the appellant.

22    At a later point of the appeal hearing, apparently abandoning the previously expressed alternative of further information being obtained in documentary form rather than by way of a further hearing to address the adjournment application made by telephone on them by email, it was effectively submitted on behalf of the appellant that nothing short of a further hearing was required to consider properly the application to delay making the decision.

23    It was submitted that if the appellant had been granted time to provide further information or ultimately invited to a hearing, she may have been in a position to provide to the Tribunal the missing information identified by the primary judge. The appellant complained that the Tribunal drew a conclusion without giving her an opportunity to be heard or to present evidence and arguments on the status of her new nomination, and that the primary judge correspondingly erred in not finding this to be a judicially reviewable error.

24    None of the above asserted obligations rise above suggestions as to how the Tribunal could have handled the adjournment application differently. Doubtless the Tribunal could have done those things, but it is a very different proposition to suggest that it was compelled to do so as a matter of the proper and necessary exercise of jurisdiction.

25    It was also suggested on behalf of the appellant that the Tribunal, in carrying out its function in accordance with s 353 of the Migration Act to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”, had “placed too much weight on informal and quick and insufficient weight on the principles of fairness and the just”. Such a balancing exercise in relation to such facultative provisions is precisely the sort of procedural decision-making that is expressly reposed in the Tribunal. Such provisions are subordinate to acting in accordance with the law as set out in the Migration Act. This includes the exercise of powers and discretions, subject to this Court and the Federal Circuit Court having a limited and confined supervisory role, not a fact finding and decision-making role. See Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 445-8 [43]-[52], especially [49].

26    It will often be the case that the overarching statutory mandate as to how the Tribunal is required to go about its merits review task will involve considerations that stress against one another and require compromise and balance. Something more than pointing to the possibility of a different weighting of the competing considerations is required to demonstrate that the Tribunal in some way misconceived or failed to exercise its jurisdiction properly.

27    The test of legal unreasonableness is inherently difficult to meet in circumstances such as these, with a keen appreciation of the limitations on judicial review, especially when it is confined to jurisdictional error, or appellate supervision of the finding of such error. As Allsop CJ pithily observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at 5 [8]:

The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].

28    It was submitted on behalf of the appellant that the primary judge was “plainly wrong” to conclude that there was nothing in the email sent by the appellant on 10 July 2014 to suggest that the appellant had reasonable grounds to be heard further on her adjournment application. Again, no such error on the part of his Honour is apparent. Nothing was identified as expressly or by reasonable implication giving rise to any expectation, let alone a reasonable expectation, that the Tribunal would do anything more than consider and decide upon the appellant’s adjournment application as it had been presented.

29    It was submitted that the reference to the appellant having applied for other jobs and attending interviews and finding prospective employers who were willing to sponsor her was “enough to trigger the obligations of the Tribunal under the procedural fairness grounds of the Migration Act … to request more information or to invite the appellant to a hearing to report any adverse concerns to her and to allow her to present evidence and arguments in response”. The response to that suggestion is, as detailed further below, that the statutory obligations apparently relied upon simply do not apply to the present situation. Counsel for the appellant chose not to respond to or address the Minister’s written submissions to that effect.

30    In supplementary written submissions for the Minister responding to the late-filed written submissions for the appellant, it was submitted that the primary judge’s reasoning disclosed no appellable error. After setting out the history of the appellant’s contact with the Tribunal, those submissions provided clear, concise and cogent reasons why the appellant’s case was without any proper foundation. I agree with those submissions which I restate below in summary form, and supplement.

31    It was for the appellant to give sufficient detail and evidence in support of her adjournment request. The Tribunal was under no obligation to make enquiries in that regard. The Tribunal considered the appellant’s request for more time and found what was stated in support to be “vague and lacking in detail”. That characterisation by the Tribunal of the appellant’s 10 July 2014 email was a conclusion it was entitled to reach. The Tribunal was therefore entitled not to be satisfied that the appellant would have an approved nomination in the reasonably foreseeable future. That too was a conclusion fairly open to the Tribunal. The primary judge did not err in finding that was so.

32    The Tribunal’s reasons demonstrate that it gave “independent, active consideration” to the appellant’s request for further time: cf Singh at 449-450 [65], in which that necessary process of consideration was found to be lacking in the circumstances of that case. In Singh, what was sought was a short adjournment for a specific purpose of ascertaining whether a prior English-language test was accurate. There was, objectively, a reasonable basis to believe that the prior test may not have been an accurate reflection of the visa applicant’s performance. The tests allowing for a re-mark were conducted frequently and were unlikely to be long or complex. Accordingly there was a high degree of certainty as to when this would take place and how long it would take. The visa applicant was not requesting an opportunity to sit another test or to bring in an entirely new basis for the grant of the visa he was seeking. All of those features are notably lacking from the present appellant’s case.

33    The decision not to grant the appellant more time by the exercise of the adjournment power conferred by s 363(1)(b) was fairly open to the Tribunal on the material before it and was not one that lacked “an evident and intelligible justification”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at 367 [76].

34    There was no obligation on the Tribunal to invite the appellant to a further hearing. Section 360(1) of the Migration Act requires the Tribunal, in certain circumstances, to invite a review applicant to appear before it to give evidence and present arguments on the issues arising in relation to the decision under review. In Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489, the High Court considered this issue in relation to the mirror provision to s 360 in s 425 of the Migration Act and said at 505 [51]:

Whether an issue must be raised with an applicant for the purposes of a further hearing under s 425(1) will depend on the circumstances of each case. Matters may arise requiring an invitation to a further hearing. However, that is not the case in the present matter. Here, [the visa applicant’s] evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing. This distinguishes the facts here from those considered in SZBEL …

35    The reasoning in SZKTI applies to this appeal. The appellant’s request for more time on the basis that she had “tried to apply for another jobs and I got three interviews and out of those two of them can sponsor me and put my file for a new nomination” did not raise any new issue in the sense referred to in s 360(1) of the Migration Act such as to trigger any obligation on the part of the Tribunal to give another hearing. The existing issue was whether the appellant had an approved nomination. She must have been well aware that this was an issue both by reason of the correspondence prior to the Tribunal hearing referred to above and by reason of what transpired at that hearing itself. That also included the delay that the Tribunal granted at her request pending the determination of the existing nomination review. See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 162-3 [33]-[35].

36    The Tribunal was under no obligation to put any “information” to the appellant pursuant to ss 359A or 359AA of the Migration Act. The information about the appellant’s efforts to obtain a new sponsor and lodge a new nomination application was excluded from the operation of s 359A as it was information that the appellant gave for the purpose of the application for review: see s 359A(4)(b).

37    In any event, “information” for the purposes of s 359A does not include the existence of doubts, inconsistencies or the absence of evidence which are the subject of the mental processes of the Tribunal member: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at 616 [18]. In that paragraph, the majority held that Finn and Stone JJ had correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 477 that the word “information” does not “encompass the Tribunal’s subjective appraisals, full processes or determinations … Nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc …”.

38    It follows from the foregoing that I reject the suggestion made on behalf of the appellant that the Tribunal had any obligation to invite her to a second hearing or to provide her with a further opportunity to address the Tribunal on the basis of her indication that she wanted to apply for another nomination with a new employer. In any event, there is no basis for such an obligation in Division 5 Part 5 of the Migration Act, which is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with: see s 375A.

39    Even if that exhaustive statement did not extend to the present situation, there was no procedural unfairness in not inviting the appellant to attend a further hearing for the purposes of determining whether the adjournment or delay in making a decision ought to be granted: see Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 at [61]-[66]. She was given an opportunity to put her request in writing. The reasons she advanced were found to be insufficient to warrant the request being granted. Given the content of the request, that was an entirely reasonable conclusion for the Tribunal to reach. The Tribunal was not required to do anything more in the circumstances of this case. It follows that the primary judge did not err in finding no error on the part of the Tribunal, let alone jurisdictional error.

40    As no proper ground of appeal has been raised, much less established, the appeal must be dismissed with costs.

Associate:

Dated:    20 March 2017