Minister for Immigration and Border Protection v Haq

• Jurisdiction: Australia Federal only
• Judgment Date: 31 January 2019
• Neutral Citation: [2019] FCAFC 7
• Date: 31 January 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Haq [2019] FCAFC 7

Appeal from:	Haq v Minister for Immigration and Border Protection [2018] FCCA 1523
File number:	NSD 1179 of 2018
Judges:	GRIFFITHS, GLEESON AND COLVIN JJ
Date of judgment:	31 January 2019
Catchwords:	MIGRATION – where the respondents requested the Administrative Appeals Tribunal (AAT) to defer making a decision so that the respondents could submit material in support of their application to review a decision of the delegate of the Minister refusing the respondents Temporary Work (Skilled) (subclass 457) visas – whether the primary judge erred in finding that the decision of the AAT refusing the deferral was legally unreasonable
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 7, 10B Migration Act 1958 (Cth) ss 65, 338, 347, 348, 349, 353, 357A, 358, 360, 363, 368, 368D, 379G Migration Regulations 1994 (Cth) Sch 2 cl 457.223
Cases cited:	Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299; (2011) 213 FCR 345 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78; (2017) 252 FCR 82 Duncan v Independent commission Against Corruption [2016] NSWCA 143 Dunsmuir v New Brunswick [2008] 1 SCR 190 Fard v Secretary, Department of Immigration and Border Protection [2016] FCAFC 155 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 TTY167 v Republic of Nauru [2018] HCA 61
Date of hearing:	26 November 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	136
Counsel for the Appellant:	Mr T Reilly
Solicitor for the Appellant:	Mills Oakley
Solicitor for the First, Second and Third Respondents:	Mr M Newman of Newman & Associates
Counsel for the Fourth Respondent:	The Fourth Respondent filed a submitting notice, save as to costs

ORDERS

		NSD 1179 of 2018
BETWEEN:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Appellant
AND:	MAHMADUL HAQ First Respondent ; MOSAMMAT RAZIA Second Respondent ; MAHBIRUL HAQ (and another named in the Schedule) Third Respondent

JUDGES:	GRIFFITHS, GLEESON AND COLVIN JJ
DATE OF ORDER:	31 January 2019

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The Federal Circuit Court’s orders dated 12 June 2018 be set aside.

3. The originating application dated 1 November 2016 be dismissed.

4. The first respondent pay the appellant’s costs of the proceeding below, fixed in the amount of $5,500, as well as the appellant’s costs of the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J

1. This appeal is from a judgment and orders dated 12 June 2018 by the Federal Circuit Court of Australia (FCCA). The judgment is reported as Haq v Minister for Immigration and Border Protection [2018] FCCA 1523.

2. The central issue in the appeal is whether the primary judge erred in finding that it was not legally unreasonable for the Administrative Appeals Tribunal (AAT) to refuse a request made by the review applicants (the respondents in the appeal) that the AAT defer making a decision on the review application so the respondents could submit material in support of their application.

3. For the following reasons, the appeal should be allowed.

Summary of background facts

4. On 30 January 2015, the respondents applied for Temporary Business Entry (Class UC), Temporary Work (Skilled) (subclass 457) visas (457 visas). The first respondent was the primary applicant. His wife and child were also applicants as members of his family unit.

5. One of the criteria set by cl 457.223 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) for a 457 visa was as follows:

457.223

…

(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

…

6. These criteria required that, at the time of the decision whether or not to grant a 457 visa, there be a current approved nomination of an occupation relating to the visa applicant by a standard business sponsor.

7. Mr Haq was sponsored to work with an entity called A1 Hotel Group Pty Limited (A1 Hotel Group) as a hotel manager at Batlow. Mr Haq’s previous 457 visa ceased on 31 January 2015 and, in those circumstances, he lodged his new 457 visa application on 30 January 2015. He was again sponsored by A1 Hotel Group.

8. The Minister’s delegate refused the visa application on 1 July 2015 on the basis that Mr Haq was not nominated by an approved sponsor because, as at that time, A1 Hotel Group was no longer an approved business sponsor.

The AAT proceeding

9. On 21 July 2015, the respondents lodged an application for review in the AAT of the delegate’s decision. By a letter dated 22 July 2015 from the AAT, they were told that the Department had been requested to provide the AAT with all documents and files which it considered to be relevant to the review and that if they wished to provide material or written arguments, they should do so “as soon as possible”.

10. By a letter dated 10 August 2016, the AAT further informed the respondents that it had been unable to make a favourable decision based on the material before it and that, in those circumstances, a hearing would be conducted on 30 September 2016 to which they were invited to attend. The respondents were informed that the AAT “will only change this date if satisfied that you have a very good reason for being granted an adjournment”. Further, they were told that any additional documents or information which they wished to rely upon at the hearing should be provided to the AAT by 23 September 2016.

11. By an email dated 18 August 2016, the respondents’ migration agent informed the AAT that the respondents and the migration agent would attend the hearing.

12. On 29 September 2016 (i.e. the day before the scheduled hearing), the first respondent wrote to the AAT and said that his situation had changed since the review application was lodged. He said that he no longer had a sponsor or nominator and that “my application in the current situation is unlikely to be successful”. He added:

I have spoken to numbers of employers and they are ready to file the nomination for me however it is taking some time to collect the documents. In the meantime, I seek the extension of the time to submit a new Nomination documents from a different Employer (sic).

Kindly allow me some time (about 4 weeks) to submit documentations.

13. An AAT staff member then contacted the respondents’ migration agent. A case note records...