Minister for Immigration and Citizenship v Tran

REASONS FOR JUDGMENT 1 This is an appeal by the Minister for Immigration and Citizenship (Minister) from orders made by a Federal Magistrate directing that a writ of certiorari issue to the Migration Review Tribunal (Tribunal) to quash a decision made by the Tribunal on 21 June 2010, and for the issue of a writ of mandamus directing the Tribunal to determine Mr Tran's application for a review of the decision of the Minister's delegate on 20 November 2008 according to law.

Facts 2 On 12 November 2008 Mr Tran applied for a Temporary Business Entry (Class UC) Subclass 457 visa. 3 On 20 November 2008 the Minister's delegate refused the application on the ground that the delegate was not satisfied that Mr Tran could demonstrate a relevant skilled work experience within the criteria set out in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), and in particular cl 457.223(2)(d). 4 On 10 December 2008 Mr Tran lodged an application for review of the delegate's decision with the Tribunal. 5 After that application was made the criteria in the Regulations for a Subclass 457 visa were amended with effect from 14 September 2009. The new criteria enabled the Minister (or the Tribunal in the case of a review) to require an applicant for a Subclass 457 visa to undergo a skills demonstration test. 6 On 1 October 2009 the Tribunal invited Mr Tran to give evidence and present arguments at a hearing on 19 November 2009. 7 On 16 March 2010 the Tribunal invited Mr Tran to provide evidence by 13 April 2010 in the form of a skills assessment for the purpose of cl 457.223(2)(d). 8 On 7 April 2010 Mr Tran applied for an extension of time because the person who was to conduct the test was not available until after 13 April 2010. On 8 April 2010 the Tribunal agreed that the evidence could be provided by 6 May 2010. Mr Tran provided the completed skills assessment to the Tribunal on 6 May 2010. 9 The Tribunal was apparently satisfied with the evidence provided on 6 May 2010 because on 18 May 2010 the Tribunal invited Mr Tran to provide by 15 June 2010 evidence upon which he relied to satisfy the remaining criteria in cl 457.223(2)(a), (b) and (c). In the letter requesting that further information the Tribunal wrote: If you cannot provide the information by 15 June 2010, you may ask the Tribunal for an extension of time in which to provide the information. If you make such a request, it must be received by the Tribunal before 15 June 2010 and you must state the reason why the extension of time is required. 10 On 10 June 2010 Mr Tran's migration agent wrote to the Tribunal seeking an extension of time within which to produce the evidence to satisfy the remaining criteria of cl 457.223(2). His agent wrote: 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. The Writer will be away from the office from close of business 10 June 2010 and returning to the office on 16 June 2010. However, we will endeavour to provide you with a copy of the lodged nomination application as soon as possible on or shortly after 15 June 2010. In the circumstances, I would be grateful if you would consider the grant of an extension of time beyond 15 June 2010 to allow the Department of Immigration and Citizenship to assess the nomination application. 11 On 11 June 2010 the Tribunal replied to the application for an extension of time within which to provide the information. The Tribunal wrote: I am writing about the applications for review made by you in relation to decisions to refuse to grant Temporary Business Entry (Class UC) visas. On 18 May 2010 the Tribunal sent you an invitation to provide information. On 10 June 2010 the Tribunal received a request for an extension of time to provide the information. The Tribunal has considered the request carefully but has decided not to grant an extension of time. The information must therefore be received at the Tribunal by 15 June 2010, as previously advised. If the Tribunal does not receive the information by 15 June 2010, the Tribunal may make a decision on the review without taking any further action to obtain the information. 12 On 15 June 2010 Mr Tran's migration agent and solicitor provided the Tribunal with a copy of Mr Tran's nomination application for a position with Western Meat Exporters "as promised in my letter of 10 June 2010". 13 On 18 June 2010, without further reference to Mr Tran or his agent, the Tribunal affirmed the delegate's decision that Mr Tran was not entitled to the grant of a Temporary Business Entry (Class UC) visa. 14 In its reasons the Tribunal discussed the evidence that had been given at the hearing on 18 November 2009 by Mr Tran, his wife and another person. It noted that on 6 May 2010 it had received a report from a Mr Eckhardt, who assessed Mr Tran as competent in the practical skills and technical units under consideration. Mr Eckhardt certified that he "…would consider him to have the necessary skills to perform the duties of a 'slaughter person' as described in the ASCO Code 4511-15." 15 The Tribunal set out the letter it wrote on 18 May 2010 to Mr Tran. It noted that Mr Tran's agent had requested an extension of time in which to respond to the Tribunal's letter and that the Tribunal had declined to grant an extension of time. It further noted that on 15 June 2010 Mr Tran's agent lodged by facsimile a copy of the nomination application by Western Meat Exporters for approval of a position for the visa applicant. 16 It noted that when the application was before the delegate cl 457.223(2) was in a different form to the form in which it was at the time that the application for review was before the Tribunal. The Tribunal noted that Mr Tran was seeking to meet the criteria in cl 457.223(2). It further noted that the issue which was before the delegate was whether the visa applicant satisfied cl 457.223(2)(d), and in particular whether he had demonstrated skills and experience suitable for the performance of the activity, and whether the requirements of the labour agreement had been met in relation to Mr Tran's application. 17 The Tribunal noted that the criterion was amended on 14 September 2009. It found that after an assessment of the applicant's demonstration of skills Mr Tran demonstrated that he had suitable skills and experience for the purpose of cl 457.223(2)(d). In that regard it reversed, albeit for different reasons, the delegate's decision. 18 After referring again to the history of the matter, including Mr Tran's application for an extension of time in which to respond to the Tribunal's letter of 18 May 2010, the Tribunal said: On 15 June 2010 the visa applicant's agent lodged by facsimile a copy of a nomination application by Western Meat Exporters for approval of a position for the visa applicant for the purposes of satisfying subclause 457.223(4). That subclause is not satisfied until the application is approved and the visa applicant requested further time to allow Western Meat Exporters to obtain approval. 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. 19 Mr Tran sought judicial review of the Tribunal's decision on the ground that the refusal by the Tribunal of his request for an adjournment had denied him procedural fairness either at common law or pursuant to s 360 of the Migration Act 1958 (Cth) (the Act).