Federal Court of Australia Hettiarachchige v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1336 Appeal from: Hettiarachchige v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 871 File number(s): VID 267 of 2021 Judgment of: O'CALLAGHAN J Date of judgment: 28 October 2021 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to refuse to grant a Temporary Business Entry (Class UC) visa – whether primary judge failed to provide the appellant with a reasonable opportunity to present evidence and make submissions – primary judge accorded appellant procedural fairness – appeal dismissed Legislation: Migration Regulations 1994 (Cth) Schedule 2 para 457.223(4)(d) Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 16 Date of hearing: 28 October 2021 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Mr K Sypott of Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS VID 267 of 2021 BETWEEN: CHINTHAKA RUWAN KUMARA HETTIARACHCHIGE Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: O'CALLAGHAN J DATE OF ORDER: 28 OCTOBER 2021 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs, to be taxed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT Revised from transcript O'CALLAGHAN J: 1 The appellant appeals from a judgment and orders of a judge of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision made by a delegate of the first respondent Minister to refuse to grant to the appellant a Temporary Business Entry (Class UC) – Temporary Work (Skilled) (Subclass 457) visa, which I shall call the visa. 2 On 10 June 2015, the appellant applied for the visa on the basis of his employment in the nominated position of chef with Char Bar Pty Ltd, which I shall call the sponsor. I interpolate that paragraph 457.223(4)(d) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), at the time of the application, required that the appellant's intention to perform the nominated occupation be genuine and that the position associated with it be genuine. 3 In April 2019, a delegate of the Minister refused to grant the visa. The appellant then applied for review of the delegate's decision with the Tribunal. He appeared before the Tribunal at a hearing in which he gave evidence and presented arguments. 4 A little over a month after the hearing, the Tribunal sent a letter to the appellant's representative, inviting comment or response from the appellant about the fact that the sponsor's application for approval of the appellant's nominated position had been refused by a delegate and the delegate's decision to refuse approval of that nomination had been affirmed by the Tribunal. The appellant did not provide any comment or response. 5 On 30 March 2020, the Tribunal affirmed the delegate's decision to refuse to grant the visa. The Tribunal considered the central issue was whether the appellant was the subject of an approved nomination as required by the Regulations. The appellant gave evidence before the Tribunal that he had not worked for the sponsor since December 2018 – some considerable time before the Tribunal hearing – after they had had a wage dispute, and that his (then) current employer, the Oaks Darwin Hotel, would not sponsor his visa. The Tribunal accepted that evidence and acknowledged the appellant's predicament, but was nonetheless not satisfied that the appellant was the subject of an approved nomination as required by the Regulations. 6 On 5 May 2020, the appellant lodged an application for an extension of time in which to seek judicial review of the Tribunal's decision with the Federal Circuit Court of Australia. That application was dismissed on 14 October 2020 when the appellant failed to attend a directions hearing. The appellant then applied for reinstatement of that application. 7 In April 2021, the primary judge set aside the Registrar's orders and granted the extension of time sought by the appellant. Having done so, the primary judge went on to consider the substantive application for judicial review, and dismissed it. 8 The appellant's two grounds of review before the primary judge were: (1) the Tribunal had regard to irrelevant considerations and failed to take into account relevant considerations, as it had failed to give sufficient weight to the circumstance that resulted in him not being the subject of an approved nomination; and (2) the Tribunal denied him procedural fairness. 9 Both grounds were, as I say, dismissed. 10 In respect of the first ground, the primary judge noted that the Tribunal's reasons recorded the appellant's evidence that he had had a wage dispute with his previous employer and that he was employed with a new employer. The primary judge found that the weight given to this evidence was ultimately not a matter capable of disclosing jurisdictional error. 11 In respect of the second ground, the primary judge considered that it was difficult for the appellant to argue that he may have had a prospect of success in circumstances where he still did not have an approved nomination over a year after the Tribunal had affirmed the delegate's decision. Further, the appellant had sought an adjournment and the appellant had not responded to the Tribunal's invitation to comment on or respond to the fact that he did not have an approved nomination. Accordingly, the primary judge concluded that there was no denial of procedural fairness when the Tribunal did not exercise its discretion to adjourn the review. 12 The appellant now appeals to this court by a notice of appeal filed on 17 May 2021. He seeks to have the primary judge's orders set aside and his application for judicial review remitted to the Federal Circuit Court on the sole ground that "[t]he learned judge failed to accord the appellant natural justice and procedural fairness". The particulars of that ground read "[t]he learned judge failed to provide the appellant with a reasonable opportunity to present evidence and make submissions". 13 At the hearing this afternoon, the appellant was self-represented. It is fair to say – and I do not mean this disrespectfully – that in his submissions in chief and in reply. the appellant was unable to make any submission that touched upon or advanced that ground of appeal. The appellant did mention his concerns about a bridging visa and having no right currently to work. But as Mr Sypott for the Minister said, these are not matters over which this court has any jurisdiction. 14 Dealing then with the ground of appeal, the primary judge was, of course, obliged to accord procedural fairness to the appellant, including by ensuring that he was provided with a reasonable opportunity to present evidence and make submissions. I have reviewed the relevant parts of the transcript of the hearing before the primary judge, which appear in particular at pages 181 to 187 of the appeal book. There is no basis for any suggestion that the primary judge did not accord procedural fairness to the appellant. On the contrary, as the Minister submitted: (1) after reinstating the appellant's application for an extension of time and granting the extension of time sought, the judge outlined the appellant's grounds of review to him in straightforward language and invited submissions in respect of those grounds and considered the submissions; (2) the primary judge let the potential shortcomings in the appellant's grounds be known to the appellant, and invited him to respond; and (3) the primary judge asked the appellant a number of times towards the end of the hearing whether he had any further submissions to make – the appellant made such submissions and eventually told the judge that there was nothing further that he wished to say. 15 In those circumstances, there is no merit in any suggestion that the primary judge did not accord to the appellant procedural fairness. 16 Accordingly, I will order that: (1) the appeal be dismissed; and (2) the appellant pay the Minister's costs, to be taxed or assessed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan. Associate: Dated: 29 October 2021