Tran v Minister for Immigration & Anor [2011] FMCA 329 (11 May 2011)

Last Updated: 11 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRAN v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 329

MIGRATION – Judicial Review of Migration Review Tribunal – refusal of adjournment of Review – relevant legal principles.

Migration Act 1958 (Cth), ss.51, 353, 357, 360, 363, 422, 425, 474 & 476 Migration Regulations 1994 (Cth), cl.457

Craig v The State of South Australia [1995] HCA 58 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Minister for Immigration v Bhardwaj [2002] HCA 1 Saeed v Minister for Immigration and Citizenship [2010] HCA 23 Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 NBMB v Minister for Immigration and Citizenship & Anor [2008] FCA 149; (2008) 100 ALD 118

Applicant:

HOANG SON TRAN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 180 of 2010

Judgment of:

Lindsay FM

Hearing date:

6 December 2010

Date of Last Submission:

6 December 2010

Delivered at:

Adelaide

Delivered on:

11 May 2011

REPRESENTATION

Counsel for the Applicant:

Mr Ower

Solicitors for the Applicant:

McDonald Steed McGrath Lawyers

Counsel for the Respondents:

Mr d'Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) That a writ of certiorari issue directing the second respondent to quash the decision made by it in relation to the applicant dated 21 June 2010.
(2) That a writ of mandamus issue directing the second respondent to determine the applicant’s application for review of the delegate’s decision of 20 November 2008 according to law.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE

ADG 180 of 2010

HOANG SON TRAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) in which the Tribunal affirmed the decision of the delegate of the Minister to refuse to grant the applicant a temporary business entry (class UC) subclass 457 visa (“the visa”).
2. The application to this Court is made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”).
3. The decision of the Tribunal is a privative clause decision as defined in s.474 of the Act and is not subject to challenge unless the decision can be shown to have been vitiated by jurisdictional error. Jurisdictional error is a concept most usefully explained in High Court decisions such as Craig v The State of South Australia [1995] HCA 58 and, in relation to applications under this Act, in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
4. The applicant is a Vietnamese national and his application for the relevant visa was made on 12 November 2008. The requirements for the visa are set out in clause 457 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
5. At all relevant stages of the progress of the visa application the applicant has been represented by a firm of experienced migration agents.
6. The visa application was made on 12 November 2008. On 20 November 2008 the application was refused by the delegate of the Minister. The issue before the delegate was whether the visa applicant at that time satisfied subclause 457.223(2)(d) which required that:
   • (i) the skills and experience of the applicant are suitable for the performance of the activity;
   • (ii) the requirements of the labour agreement have been met in relation to the application.
7. The delegate was not satisfied that the applicant could demonstrate the relevant skilled work experience.
8. The application to the Tribunal was made on 10 December 2008.
9. The criteria set forth in the Regulations for a subclass 457 visa were amended with effect from 14 September 2009.
10. The new form of the Regulations enabled the Minister (or the Tribunal in the case of a visa application that had reached review stage) to require the visa applicant to undergo a skills demonstration test.
11. The Tribunal arranged just such an assessment in relation to this visa applicant. The skills the applicant said he held were those of a slaughterman.
12. The applicant commenced his employment at Western Meat Exporters in August 2009 and was still fulfilling that position at the time of the Tribunal’s decision.
13. The Tribunal did not write to the applicant with an invitation to appear before the Tribunal until 1 October 2009. It invited the applicant to a hearing and to give evidence and present arguments at a hearing which was convened on 19 November 2009.
14. The hearing took place, then, some 11 months after the application for review was lodged with the Tribunal. As it turned out, because of the effect of the amendment to the relevant visa criteria, that delay did not disadvantage the applicant but the delay in convening the hearing is a matter to be borne in mind when I assess the reasonableness of the Tribunal’s handling of the applicant’s own request for an adjournment of the review.
15. On 15 March 2010 the Tribunal requested a Mr Glen Eckhardt to conduct an assessment of the visa applicant’s skills. The Tribunal received Mr Eckhardt’s report on 6 May 2010 and his assessment indicated, and the Tribunal accepted, that the visa applicant had suitable skills and experience for the purposes of the relevant visa criteria. That is confirmed by the Tribunal at [63] of its Reasons.
16. The application for the visa was made under that stream of subclause 457 which dealt with labour agreements. Accordingly, the Tribunal being satisfied that the visa applicant had the relevant skills, it then needed to consider whether it was satisfied that the applicant fulfilled the terms of clause 457.223(2)(b)(ii) and (2)(c). The cumulative criteria that needed to be fulfilled at that point was that the applicant had been nominated by a party to an approved labour agreement.
17. I set out clause 457.223(2) in full:
    • (2) The applicant meets the requirements of this subclause if:
      • (a) the occupation specified in the application is the subject of a labour agreement; and
      • (b) either:
        • (i) both of the following apply:
          • (A) the applicant and a business activity specified in the application and relating to the applicant were the subject of an approved business nomination under regulation 1.20H as in force immediately prior to 14 September 2009; and
          • (B) the approval has not ceased to have effect under subregulation 1.20H(5) as in force immediately prior to 14 September 2009; and
        • (ii) a nomination of an occupation in relation to the applicant:
          • (A) has been approved under section 140GB of the Act; and
          • (B) has not ceased to have effect under regulation 2.75; and
      • (c) the applicant is nominated by a party to the labour agreement; and
      • (d) if the Minister requires the applicant to demonstrate that he or she has skills and experience that are suitable to perform the occupation the applicant demonstrates that he or she has those skills and that experience in the manner specified by the Minister.
18. As already noted, the applicant sought to fulfil the criteria of clause 457.223(2)(b)(ii). The letter from the Tribunal to the applicant asking for clarification of these matters was sent on 18 May 2010. On 10 June 2010 the applicant’s migration agent requested an extension of time to enable the applicant to comply with those provisions. The reasons for the adjournment was set out in the letter of the migration agent to the Tribunal as follows:

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. [CB 86]

19. Formally, the request of the migration agent was for an extension of time beyond that imposed by the Tribunal, that is by 15 June 2010, to produce the material that demonstrated satisfaction of the remaining criteria.
20. On 11 June the Tribunal advised the applicant of its decision not to grant an extension of time for the provision of the information and confirmed that the information had to be made available to the Tribunal by 15 June 2010 [CB 88]. The migration agent lodged on behalf of the applicant on 15 June 2010 a copy of the nomination application by Western Meat Exporters for approval of the position of the applicant but were not able to provide material that indicated that the applicant’s nomination had been accepted.
21. At [67] of its Reasons the Tribunal said as follows:
    • 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.
22. It went on at [68] :
    • The Tribunal is not satisfied that the visa applicant meets subclause 457.223. As the Tribunal has found the primary applicant cannot satisfy the relevant criteria, it follows that the secondary applicant also cannot satisfy the relevant criteria for the grant of the visa, specifically cl.457.311. which requires that she is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria.
23. It will be seen that once the extension of time application was determined adversely to the applicant, the outcome of the Tribunal hearing was inevitable.
24. It should be said clearly that it is somewhat surprising that given that he had been working for Western Meat Exporters since September 2009 that by June 2010 the applicant had not attended to the procurement of the approval that was required for him to meet the visa criteria. It is clear from a reading of the Reasons of the Tribunal that this issue, that is, the position approval issue, was not a matter to which either the applicant’s migration agent nor the Tribunal turned their attention until May 2010. That is when the Tribunal wrote to the agent seeking the relevant material.
25. I received an affidavit of a Ms May, migration agent, filed on 3 December 2010 de bene esse at the hearing of this matter on 6 December 2010. I propose to receive those parts of the affidavit in evidence that relate to the request for the extension of time (paragraphs 16 to 18 inclusive). It does not raise any factual matters which I take to be controversial. It clarifies at paragraph [16] thereof that neither the applicant nor the agent had turned their mind towards the question of the nomination by a party to a labour agreement of the applicant until the Tribunal sent its letter of 18 May 2010. As Ms May sets out in that paragraph of the affidavit, it was her understanding that at that time the acceptance of nominations under labour agreements by the Department of Immigration and Citizenship were taking between two and six weeks to process. That accounts for the reason why the extension of time was sought to 15 June 2010. I do not propose to receive in evidence any other parts of the affidavit. They do not assist me in determining whether the Tribunal fell into jurisdictional error in refusing the request for the extension of time. The parts of the affidavit that I have admitted do not contain any factual assertions which I regard as being a matter of controversy between the parties.
26. The application to this Court alleges that the Tribunal committed jurisdictional error by failing to comply with s.360 of the Act and/or failing to comply with the Rules for procedural fairness. It was amended during the course of the hearing before me. It had previously referred to a failure to comply with s.357 of the Act.
27. Section 360 of the Act provides as follows:
    • (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
    • (2) Subsection (1) does not apply if:
      • (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
      • (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
      • (c) subsection 359C(1) or (2) applies to the applicant.
    • (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
28. It is the equivalent of s.425 of the Act relating to the conduct of reviews by the Refugee Review Tribunal.
29. Section 363 of the Act sets out the powers of the Migration Review Tribunal. Subsection (1) provides:
    • (1) For the purpose of the review of a decision, the Tribunal may:
      • (a) take evidence on oath or affirmation;
      • (b) adjourn the review from time to time;
      • (c) subject to sections 377 and 378, give information to the applicant and to the Secretary; or
      • (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination
30. Section 357A of the Act is the equivalent of s.422B that relates to the conduct of reviews by the Refugee Review Tribunal.
31. Section 357A provides as follows:
    • (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
    • (2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
    • (3) In applying this Division, the Tribunal must act in a way that is fair and just.
32. By fixing a date after which the applicant was unable to produce to the Tribunal further material, the Tribunal was in effect declining an application to adjourn the Tribunal hearing. The hearing was being brought to an end on the date the Tribunal fixed as the last date by which proof of the satisfaction of the visa criteria relating to 457.223(2)(a), (2)(b)(i), (2)(b)(ii) and (2)(c) could be provided. In seeking an extension of time within which to provide that material, the applicant’s migration agents were in practical terms, seeking an adjournment of the Tribunal hearing.
33. The decision of the Tribunal constituted a refusal to review pursuant to the power it had to adjourn the review from time to time under s.363(1)(b) of the Act.
34. One of the difficulties with the application to adjourn was that it did not ask for an adjournment to a specific period. The letter of 10 June 2010 to the Tribunal from the migration agent simply seeks “the grant of an extension of time beyond 15 June 2010” to enable the Department of Immigration and Citizenship to assess the nomination application of the applicant’s employer.
35. I also bear in mind that the application had been before the Tribunal since December 2008 and whilst the criteria underwent a transformation in December 2009, there had been adequate time for the applicant to absorb the requirements of the new form of the Regulations especially as he was represented by an experienced migration agent.
36. I also bear in mind the provisions of s.353(1) of the Act which provides:
    • (1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
37. I have already indicated my concern about the open-endedness of the request for the extension of time but I have accepted that portion of the affidavit of Ms May which includes the reference to the general expectation as to it being a period of between two and six weeks for the Department of Immigration and Citizenship to process the nomination application that had been forwarded to it on behalf of the applicant. The Tribunal knew that the application had been forwarded because the agent provided a copy of it to the Tribunal on 15 June, the last date upon which it had the opportunity to put any material to the Tribunal.
38. A delay in the order of two to six weeks must be seen against the background of the delay occasioned by the Tribunal not allocating a hearing date until November 2009 when the application had been made to it in December 2008.
39. The Tribunal then did not raise the nomination issue until its letter to the applicant’s migration agent of 18 May, which was a little under a month from the date it then appointed as the date for the finalisation of the hearing.
40. Such expedition as the Tribunal has exhibited has only been exhibited in the very last period during which it was carrying out its functions. During the last month of the conduct of the hearing it asked the applicant to proceed with an expedition that had been altogether lacking from its own deliberations since the institution of the application in December 2008.
41. In Minister for Immigration v Bhardwaj [2002] HCA 11 the High Court said at [40]:
    • Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness.
42. I will only be concerned about whether or not the requirements of procedural fairness have been accorded to the applicant if I am satisfied that s.357A of the Act does not apply. In other words, if that Division of the Act in which these provisions are found “deals with” the matter said to ground the complaint of absence of procedural fairness, then it will not be to the point to demonstrate a departure from the common law requirements of procedural fairness.
43. The High Court of Australia in Saeed v Minister for Immigration and Citizenship [2010] HCA 23 had occasion to consider the analogous provision of the Act which is set out in s.51A. The provisions of s.422B of the Act (being the analogous provisions in respect of the Refugee Review Tribunal) had been the subject of an earlier decision of the Full Court of the Federal Court being the decision of Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61. In this decision the High Court came to the conclusion that s.51A did not operate so as to remove the need for compliance with common law notions of procedural fairness in relation to offshore visa applicants.
44. The High Court came to this conclusion because of the view it took as to what the expression “deal with” means within a provision such as s.357A.
45. At paragraph [40] to [42] of the judgment the High Court said as follows:
    • 40. Necessarily, provisions which "deal with" "matters", for the purposes of s 51A, will contain some procedural requirements which go some way towards satisfying the fundamental requirements of the natural justice hearing rule. Some such procedural requirements are necessary if s 51A is to operate and the procedures provided for are to be taken as exhaustive of the rule. Section 57 contains such procedures. The power given in s 56, to invite an applicant to give further information, may be used to further procedural fairness but it does not mandate procedures which may be taken as a substitute for the requirements of the rule. Section 51A is not addressed to s 56.
    • 41. A point made by Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs is that the "matters" "dealt with" in the subdivision cannot be simply equated with the procedural requirements of its operative provisions, for s 51A(1) would then be largely otiose. Thus, if the matter dealt with by s 57 was the giving of information fulfilling the description of "relevant information" to a visa applicant for comment, s 51A would operate so that it was exhaustive of the requirements of the natural justice hearing rule so far as concerned the giving of information only of that kind. A limited purpose would then be achieved by s.51A(1). The rule would continue to apply to the provision of other information. The search, as his Honour said, is for a larger subject matter or matters.
    • 42. In order to give s 51A operation it is necessary to refer to the subject of the "matter" with which s 57 deals as the provision of information, more generally relevant and adverse, for comment. But there is a qualification to the description of the "matter", which arises from the persons to whom the information is to be provided. The terms of the section limit such persons to onshore visa applicants. The "matter" with which s 57 deals, is the provision of such information to onshore visa applicants. The provision of information to offshore visa applicants, such as the appellant, is not a "matter" dealt with by the sub-section. It follows that the application of the hearing rule in dealings with the appellant's application is not excluded by subdiv AB.
46. In my view s.363(1)(b) of the Act cannot be taken to “deal with” the question of the circumstances in which the Tribunal should determine to adjourn a hearing or to refuse to adjourn it. It is a bare power to adjourn but gives no clue or criteria as to the way in which the Tribunal should approach the exercise of the power. That remains a matter which is governed by the existing common law.
47. The power given to adjourn must be one which is exercised reasonably (see Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 Brennan CJ at p.36).
48. Notwithstanding my misgivings as to the way in which the application to adjourn was cast (lacking particularity as to the length of the adjournment) I consider that it cannot be said that the Tribunal has exercised its power to adjourn in a reasonable way in the circumstances I have outlined.
49. In NBMB v Minister for Immigration and Citizenship & Anor [2008] FCA 149; (2008) 100 ALD 118 Flick J said of the power to adjourn that is given to the Tribunal (in that case the Refugee Review Tribunal) at [14]:
    • Decisions as to whether or not hearings should be adjourned are largely within the discretion of administrative decision-makers. Relevant to the exercise of that discretion by the tribunal in the present context is the legislative direction that it must conduct its review in a manner which “is fair, just, economical, informal and quick”. Procedural decisions of tribunals such as the Refugee Review Tribunal should not be lightly disturbed.
50. I have set out the Tribunal’s Reasons for refusing the adjournment at [21] above. The Tribunal cites the dates which detail how long the application has been before the Tribunal but fails to identify that the overwhelming reason for the effusion of time since the institution of the application to the Tribunal has been a function of decisions the Tribunal has made itself. It was unreasonable for the Tribunal not to have regard to the relatively short delay which the adjournment sought by the applicant would have required, against the background of the significant delays that had already arisen from the way in which the Tribunal elected to conduct the review to that point.
51. In those circumstances, I am satisfied that the Tribunal fell into jurisdictional error in refusing the adjournment application and I will order accordingly.

I certify that the preceding 51Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fifty-onefifty-one (51) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 11 May 2011