FEDERAL COURT OF AUSTRALIA Khatri v Minister for Immigration and Border Protection [2015] FCA 669 Citation: Khatri v Minister for Immigration and Border Protection [2015] FCA 669 Appeal from: Khatri v Minister for Immigration [2015] FCCA 407 Parties: MUHAMMAD ADNAN KHATRI and SAIRA ADNAN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: NSD 203 of 2015 Judge: RARES J Date of judgment: 21 May 2015 Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) Cases cited: Khatri v Minister for Immigration [2015] FCCA 407 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287 SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 Date of hearing: 21 May 2015 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 15 Counsel for the Appellants: Mr L Karp Solicitor for the Appellants: Christopher Levingston & Associates Counsel for the First Respondent: Ms R Francois Solicitor for the First Respondent: DLA Piper Australia IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 203 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: MUHAMMAD ADNAN KHATRI First Appellant SAIRA ADNAN Second Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: RARES J DATE OF ORDER: 21 MAY 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 203 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: MUHAMMAD ADNAN KHATRI First Appellant SAIRA ADNAN Second Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: RARES J DATE: 21 MAY 2015 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Circuit Court, refusing the applicants' application for constitutional writ relief in respect of a decision of the Migration Review Tribunal given on 7 March 2014, in which it affirmed the Minister's delegate's decision not to grant the appellants Temporary Business Entry (Class UC) visas, commonly known as 457 visas: Khatri v Minister for Immigration [2015] FCCA 407. Background 2 On 12 May 2011, the appellants lodged applications for 457 visas under the sponsorship of a company called Chedglen Pty Limited. A precondition of the grant of the application was that the sponsor, Chedglen, be approved as a sponsor under s 140E(1) of the Migration Act 1958 (Cth), in relation to a relevant class of persons prescribed for the purposes of s 140E(2). An approved sponsor could nominate an applicant or proposed applicant for a visa of a prescribed kind in relation to that person's proposed occupation, amongst others, and the Minister had to approve an approved sponsor's nomination if the criteria, prescribed under s 140GB, were satisfied. At the same time that the appellants applied for their visas, Chedglen applied for approval as a standard business sponsor. The appellants' 457 visa applications could still be made, notwithstanding that at that time Chedglen itself had not been approved. This was because of the provisions of cl 457.223(4)(a)(ii) in the Migration Regulations 1994 (Cth) which provided that a nomination may be made by a person who is a standard business sponsor at the time the nomination was approved. That is, Chedglen could nominate the appellants before it became a standard business sponsor, provided that at the time that the appellants' visa applications came to be decided, Chedglen had been approved to be a standard business sponsor. 3 In the event, Chedglen's application for approval under s 140E(1) was refused by the Minister's delegate and, as a necessary consequence, the appellants' application could not succeed. The delegate's letter dated 30 May 2011, conveying this information told the appellants that they had to apply to the Tribunal for a review on the basis that Chedglen's application had been refused and that, therefore, theirs could not be assessed. 4 The appellants then applied to the Tribunal for a review of that decision and Chedglen also applied for a review of its unfavourable decision. On 21 February 2013, the Tribunal wrote to the appellants, informing them that it was presently considering Chedglen's application for a review and that it intended to defer consideration of their review applications until Chedglen's was finalised. The letter noted that if the appellants wanted to have their applications considered on the basis of a nomination by a different sponsoring employer, under standard business sponsor schemes or under an alternative scheme, they could provide information to the Tribunal as to how they met cl 457.223(4)(a). It appears that the appellants were content to await the determination of Chedglen's application. 5 On 19 February 2014, the Tribunal wrote to the appellants' solicitor, enclosing letters for the appellants of the same date, inviting them to provide information in writing to demonstrate that they were the subject of an approved nomination that had not ceased, as required by cl 457.223(4)(a), or to demonstrate that they would meet the requirement in the near future and before a decision was made on their review application. The Tribunal suggested, as an example, that the appellants could provide information to demonstrate that they had current support of an approved business sponsor and that a nomination application for them was currently being processed by the Department. The letter informed them that their applications for review were under active consideration by a member of the Tribunal and that they should provide the information requested by 5 March 2014. The letter said that if the appellants could not provide the information by that date they could ask for an extension of time before 5 March 2014, stating the reason why an extension was required. The Tribunal indicated that it would carefully consider any such request. 6 The Tribunal's letter attached a copy of cl 457.223(4), which relevantly provided: (4) The applicant meets the requirements of this subclause if: (a) each of the following applies: (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act; (ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; (iii) the approval of the nomination has not ceased as provided for in regulation 2. 75; and … 7 It is common ground that at no time was there any evidence that any nomination of an occupation in relation to either appellant had been approved under s 140GB of the Act, for the purposes of cl 457.223(4)(a)(i). However, by the time of the Tribunal's letter of 19 February 2014, Chedglen fell within the description of cl 457.223(4)(a)(ii). 8 The appellants did not respond to the Tribunal's invitation at all. On 7 March 2014, the Tribunal made the decision affirming the delegate's decision not to grant the appellants their 457 visas. In its decision, the Tribunal noted that it had written to the appellants on 19 February 2014, inviting them to provide the information necessary to satisfy cl 457.223(4)(a) and that they had not done so. In those circumstances, the Tribunal concluded that it need not further hear the appellants. It found that there was no evidence before it to indicate that there was a current approved business nomination relating to the appellants for the purposes of cl 457.223(4)(a) and no information to suggest that any further nomination application had been lodged in respect of them. The Tribunal said that an essential requirement of cl 457.223(4)(a) was that there be an approved nomination of an occupation relating to the applicant by a standard business sponsor that had not ceased. Accordingly, the Tribunal dismissed the application. The proceedings below 9 The appellants applied to the trial judge, raising two grounds on which they sought constitutional writ relief, namely that, first, the Tribunal had erred in failing to consider information of which it was aware that was central to the appellants' case when making its decision, being that Chedglen had been approved as a standard business sponsor and, secondly, that its decision to proceed to decide the application was unreasonable in the legal sense. The trial judge held that neither ground was established. Consideration 10 In my opinion, despite the earnest arguments of counsel for the appellants, the appeal must be dismissed. The appellants had the opportunity to provide information to the Tribunal to satisfy its inquiry as to how they met each of the provisions in cl 457.223(4)(a). 11 The appellants argued that the Tribunal, in effect, had ignored its own decision, made the day before it wrote the letter of 19 February 2014 to approve Chedglen as a standard business sponsor. I do not think that this was a reasonable construction of the Tribunal's decision-making process. The same Tribunal member made both the Chedglen decision and that the subject of this appeal. She noted in her reasons for decision, in rejecting the appellants' application for review, that the Tribunal had informed them on 21 February 2013 that it was deferring consideration of their application while Chedglen's was processed. The Tribunal also noted that its letter of 19 February 2014 indicated that their application for visas was, then, under active consideration by it. 12 Obviously, a decision-maker in the position of the Tribunal, who has actual notice of a recent and significant matter affecting the question of whether an applicant for a visa complied or did not comply with the matter must base his or her decision on that information: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44-45 per Mason J, with whom Gibbs CJ at 30 and Dawson J at 71 agreed on this issue; see too SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at 571-573 [27]-[37], especially at [37] where I considered the authorities, and Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287 at 287-292 [27] per Mansfield, Gilmour and Foster JJ. 13 As I have noted, it is common ground that throughout the period in which the appellants' application for their 457 visas was being considered by both the delegate and later the Tribunal, there was no basis before any decision-maker on which they could satisfy the mandatory requirement, in cl 457.223(4)(a)(i) specified under s 140GB, of an approval for their nominated occupations, having heard nothing from the appellants in response to its invitation to provide information in the letter of 19 February 2014. The decision of the Tribunal was inevitable. The appellants could not possibly have been granted a visa because an essential precondition of such a grant had neither been satisfied nor even addressed by them. Moreover, when they were invited to provide information, they did nothing. The Tribunal did not have to give the appellants any further time after 5 March 2014 to remedy that omission. It had fulfilled its duty to act fairly in the conduct of the review by inviting them to address this question at the outset of its active consideration of their application immediately after the approval had been granted to Chedglen. 14 A person who ignores an invitation to provide information, of the kind in the letter of 19 February 2014, can hardly be surprised of the consequence that the Tribunal's decision might be to refuse the application without giving any further opportunity to them to appear or make submissions. The Tribunal's letter had expressly foreshadowed this consequence. Particularly that is so, when such a letter is addressed to that person's solicitors, as their agents under the Act. Conclusion 15 In those circumstances, I am of opinion that the appeal must be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 2 July 2015