Ali v Minister for Immigration

[2018] FCCA 1588

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1588

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a temporary skilled work visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.116, 119, 140, 338, 348

Cases cited:

Abebe v The Commonwealth of Australia (1999) 197 CLR 510

Brown v Minister for Immigration [2015] FCAFC 141

Devi (Migration) [2017] AATA 147

Htun v Minister for Immigration (2001) 233 FCR 136

Kaur v Minister for Immigration & Anor [2017] FCCA 2009

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v SZGUR (2011) 241 CLR 594

Minister for Immigration v SZIAI (2009) 259 ALR 429

Minister for Immigration v SZJSS (2010) 243 CLR 164

Monga (Migration) [2017] AATA 614

QAAT v Minister for Immigration (2005) 149 FCR 299

NABE v Minister for Immigration (No.2) (2004) 144 FCR 1

NAHI v Minister for Immigration [2004] FCAFC 10

SZMUF v Minister for Immigration [2009] FCA 182

SZTEX v Minister for Immigration [2014] FCA 1269

SZQVV v Minister for Immigration [2012] FCA 871

Tran v Minister for Immigration [2004] FCAFC 297

WAEE v Minister for Immigration (2003) 236 FCR 593

Applicant: SYED MUHAMMAD ZAIN ALI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2788 of 2017

Judgment of: Judge Driver

Hearing date: 15 June 2018

Delivered at: Sydney

Delivered on: 15 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J McGovern of Clayton Utz

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2788 of 2017

SYED MUHAMMAD ZAIN ALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Rranscript)

Introduction and background

1. The applicant, Mr Ali, seeks judicial review for a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 August 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel Mr Ali’s subclass 457 temporary skilled work visa (457 visa). 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 8 June 2018. 

3. Mr Ali was granted a subclass 457 visa on 6 November 2014 having been sponsored by Varpreet Batra Pty Ltd (the sponsor).[1]  The sponsor had a liquidator appointed and ceased trading on 16 March 2016.[2]  The information before the delegate indicated that Mr Ali was not the subject of a further nomination at the time of the delegate's decision.[3]

   [1] Tribunal Decision Record (DR) [2].

   [2] Ibid.

   [3] Ibid.

4. Consequently, Mr Ali ceased sponsored employment for a period of more than 90 consecutive days and the Minister’s Department sent him a notice of intention to consider cancellation on 30 November 2016 (NOICC).[4] Mr Ali failed to respond and, on 8 December 2016, the delegate cancelled Mr Ali’s 457 visa under s.116(1)(b) of the Migration Act 1958 (Cth) (Migration Act).[5]

   [4] Court Book (CB) 1 - 6.

   [5] CB 7 - 19.

5. On 12 December 2016, Mr Ali applied for merits review of the delegate's decision by the Tribunal.[6]  Mr Ali, represented by a registered migration agent, attended a hearing before the Tribunal on 9 August 2017 at which he gave evidence and addressed queries raised by the Tribunal.  On 17 August 2017, the Tribunal affirmed the decision of the delegate to cancel Mr Ali’s 457 visa.[7]

   [6] CB 20 - 21.

   [7] CB 110 - 118.

Relevant law and Tribunal’s decision

1. The cancellation power relied on for the purposes of the delegate's decision to cancel Mr Ali’s 457 visa is contained in s.116(1)(b) of the Migration Act. The Minister’s power is enlivened in cases where the visa holder has not complied with a condition of the visa and a valid notice of intention to consider cancellation of the visa has been sent to the visa holder pursuant to s.119 of the Migration Act.[8] Under s.338(3) of the Migration Act, a cancellation decision made under s.116 is a “Part 5-reviewable decision”. In those circumstances, the Tribunal had jurisdiction to review the decision to cancel Mr Ali’s visa.

   [8] Minister for Immigration v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58, at [35].

2. At the time of the delegate's decision, Mr Ali, as a holder of a 457 visa, was required to comply with conditions attached to the visa.  Relevantly, Mr Ali was required to comply with condition 8107(3)(b) which required, at that time, that the visa holder not be unemployed for a period exceeding 90 consecutive days.

3. On 16 March 2016, Mr Ali’s employer and sponsor ceased trading after a liquidator was appointed.  As a matter of law, Mr Ali’s employment terminated when the company went into liquidation.[9]  On the face of the information before the delegate, Mr Ali had been unemployed for more than 90 consecutive days at the time that the NOICC was sent to Mr Ali on 30 November 2016 and was consequently in breach of condition 8107(3)(b).

   [9] Kaur v Minister for Immigration & Anor [2017] FCCA 2009, at [44].

4. On 12 December 2016, Mr Ali applied to the Tribunal for review of the delegate's decision.

5. The Tribunal identified that the central issue for determination was whether the ground for cancellation was made out and, if such ground was made out, whether the decision to cancel Mr Ali’s visa ought to be made, having regard to all the circumstances, which may include matters of government policy.[10]

   [10] DR [8].

6. First, the Tribunal considered whether grounds for cancellation of the visa existed. The Tribunal found, correctly, that the visa may be cancelled under s.116(1)(b) in circumstances where the visa holder did not comply with a condition of the visa.[11]  Condition 8107(3)(b) of Mr Ali’s visa specifically required that Mr Ali not be unemployed for a period of more than 90 consecutive days.

   [11] DR [8].

7. At the hearing, Mr Ali confirmed that his employment at his sponsor's business ended on 14 or 15 March 2016 and the business itself ceased trading on 16 March 2016.[12] The Tribunal was satisfied that Mr Ali ceased employment for more than 90 consecutive days and consequently found that Mr Ali had not complied with condition 8017(3)(b) and that the ground for cancellation of the visa under s.116(1)(b) existed.[13]

   [12] DR [10].

   [13] DR [11]-[12].

8. Secondly, the Tribunal considered whether to exercise its discretion to cancel Mr Ali’s visa.[14]  Mr Ali made various submissions to the Tribunal regarding his efforts to secure further employment,[15] the economic hardship that returning to Pakistan might incur,[16] and the impact that the visa cancellation will have on his wife and daughter.[17]  The Tribunal considered all of these factors in reaching its conclusion.[18]

   [14] DR [12].

   [15] DR [19]-[29].

   [16] DR [27], [30], and [37].

   [17] DR [20], [33], and [35].

   [18] DR [47].

9. The Tribunal considered the fact that Mr Ali had not been in skilled employment for over 16 months to be inconsistent with the purpose of 457 visas broadly,[19] and, in terms of the hardship that the cancellation may cause, the Tribunal noted that the grant of a 457 visa does not give rise to a reasonable expectation of permanent residence in Australia.[20]  In any event, the Tribunal was not satisfied that Mr Ali would suffer significant hardship following cancellation as a result of any submitted reason.[21]

   [19] DR [38].

   [20] DR [39].

   [21] DR [40].

10. In the circumstances, the Tribunal found that:

    a)Mr Ali had been unemployed for a period of more than 90 consecutive days and therefore did not comply with condition 8107(3)(b) of his visa;

    b)Mr Ali’s non-compliance was a valid ground to enliven the Minister's power to cancel Mr Ali’s 457 visa under s.116(1)(b) of the Migration Act; and

    c)weighing up all of the relevant evidence and circumstances, the discretion under s.116(1)(b) should be exercised in favour of cancelling Mr Ali’s visa.

11. Finally, the Tribunal found that the only decision before it for review related to Mr Ali as the visa of Mr Ali’s wife (who had also applied for review) was automatically cancelled pursuant to s.140(1) of the Migration Act when Mr Ali’s visa was cancelled.[22]  As such, the wife's visa cancellation was not a reviewable decision and the Tribunal had no jurisdiction in that respect.[23]  Mr Ali is the only applicant in the present proceedings.

    [22] DR [4].

    [23] Ibid.

The present proceedings

1. These proceedings began with a show cause application filed on 8 September 2017.  Mr Ali continues to rely upon that application.  The grounds in it are:

   1.AAT did not take into account exceptional circumstances effecting [sic] my family.

   2.AAT did not take into account cases from the same employer with the same circumstances that had the cases remitted. See Monga AATA 614 and DEVI AATA 147.

   3.AAT did not listen to account of my financial obligation.

   4.Member of AAT did not understand conditions relating to working on a 457 visa.

2. The application is supported by a short affidavit filed with it.  I also have before me as evidence the court book filed on 30 October 2017. 

3. Only the Minister filed written submissions in advance of today’s hearing.

4. I invited oral submissions from Mr Ali this afternoon.  He reviewed the unfortunate circumstances in which he lost his employment, sought other employment unsuccessfully, and then saw his visa cancelled, notwithstanding that he appeared to have secured alternative employment, subject to sponsorship approval, which remained pending at the time of the Tribunal decision. 

5. Mr Ali considers the circumstances to be unfair.  In a general sense, one might sympathise with that view.  It was not Mr Ali’s fault that the restaurant at which he was employed failed.  It does not appear to be Mr Ali’s fault that he obtained alternative employment with a sponsor who, for some reason, had been banned from providing sponsorship.  Mr Ali ultimately obtained prospective sponsorship from an employer at a restaurant in Bathurst, but the Tribunal nevertheless concluded that the circumstances warranted cancellation of Mr Ali’s visa.

6. As Mr Ali pointed out, two work colleagues obtained more favourable outcomes dealt with by the Tribunal in the cases of Devi (Migration)[24] and Monga (Migration).[25]  The circumstances in the three cases are somewhat similar, although it appears that Messrs Devi and Monga acted more promptly than Mr Ali in dealing with the NOICC sent to them.  Mr Ali’s explanation for that, as put to the Tribunal, was that he had changed email addresses due to his email address being hacked and hence he did not receive or act on the NOICC in a timely way.

   [24] [2017] AATA 147

   [25] [2017] AATA 614

7. The Tribunal was in no doubt that Mr Ali had breached a condition on his visa.  The Tribunal considered whether to exercise its discretion in favour or against Mr Ali, based upon the various factors put before it, Mr Ali’s assertion that various matters were not considered by the Tribunal is not borne out by a simple reading of the Tribunal decision.  Neither is it arguable that the Tribunal decision was unreasonable in a legal sense.

8. Obviously, different Tribunal members might make different decisions.  This case and the cases of Devi and Monga were dealt with by three different Tribunal members.  It is entirely possible that if the Tribunal, as constituted in Monga and Devi, had considered Mr Ali’s case, the outcome may have been different.  That circumstance is unfortunate and may warrant Ministerial consideration in the interests of fairness and consistent application of principles by the Tribunal. 

9. Mr Ali is, however, unable to point to any arguable case of jurisdictional error by this Tribunal.  In that, I agree with the Minister’s submissions on the grounds of review.

Ground 1 - failure to take Mr Ali’s exceptional circumstances into account

1. By this ground, Mr Ali complains that the Tribunal failed to consider his “exceptional circumstances” that affected his family.  This ground is misconceived and discloses no error on the Tribunal's part.

2. A failure to consider a relevant consideration only constitutes jurisdictional error if the proper construction of the statute indicates that the decision-maker was required to consider the relevant matter in making the decision.[26]  Similarly, consideration of an “irrelevant” consideration will only constitute jurisdictional error where, on the proper construction of the statute, the decision-maker was prohibited from considering the relevant matter.[27]  In either case, relief will only be granted if the error was capable of materially affecting the decision.[28]

   [26] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-42.

   [27] Peko-Wallsend Ltd, 39-42.

   [28] Peko-Wallsend Ltd, 39-42.

3. In this case, the Tribunal was only obliged to consider the issue of whether Mr Ali did not comply with the conditions of his visa and whether the Minister's discretion to cancel the visa ought to have been exercised.

4. Insofar as the cancellation of Mr Ali’s visa would have a negative impact on his family and to the extent that the Tribunal ought to have considered the best interests of Mr Ali’s child (being a young infant) in affirming the delegate's decision,[29] the Tribunal evidently turned its mind to precisely these issues in its written statement of reasons.[30]

   [29] Brown v Minister for Immigration [2015] FCAFC 141, at [34]-[36].

   [30] DR [20], [33], and [35].

5. A fair reading of the decision record assessed against this particular ground reveals that Mr Ali, in fact, takes issue with the weight given by the Tribunal to the impact of his visa cancellation on his family rather than the process by which the Tribunal arrived at its conclusion.[31]

   [31] Brown, at [35]; Minister for Immigration v SZJSS (2010) 243 CLR 164, at [33] and [36].

6. It is well-established that the weight to be given to evidence before it is a matter for the Tribunal,[32] and it is evident that Mr Ali’s first ground of review amounts to an attempt to seek impermissible merits review.

   [32] Abebe v The Commonwealth of Australia (1999) 197 CLR 510, at [197]; SZMUF v Minister for Immigration [2009] FCA 182, at [14]; SZTEX v Minister for Immigration [2014] FCA 1269, at [19].

7. Consequently, Mr Ali’s first ground of review fails to point to jurisdictional error.

Ground 2 - Tribunal did not take into account other cases involving the same visa sponsor

1. Mr Ali’s second ground of review complains that the Tribunal erred by failing to take into account two other decisions of the Tribunal which dealt with other 457 visa holders who were employed by Mr Ali’s sponsor.[33]  The basis for this ground is also misconceived and does not support an argument of jurisdictional error on the Tribunal's part.

   [33] The two Tribunal decisions alluded to were MONGA [2017] AATA 614 and DEVI [2017] AATA 147.

2. While the Tribunal is obliged to conduct a review of the delegate's decision, this obligation does not extend to a duty to make inquiries.[34]  The Tribunal is vested with the same substantive jurisdiction as the delegate and must review the decision and arrive at a correct or preferable decision based on the information before it.[35]  The mere fact that the Tribunal did not reach the same conclusion in Mr Ali’s case as it did in Monga and Devi is not a legal error.

   [34] Minister for Immigration v SZGUR (2011) 241 CLR 594; Minister for Immigration v SZIAI (2009) 259 ALR 429.

   [35] SZQVV v Minister for Immigration [2012] FCA 871, [37]; Minister for Immigration v Li (2013) 249 CLR 332, 371.

3. First, the Tribunal's obligation is to conduct a de novo review of the merits of each particular case on the basis of its unique factual matrix.[36]  The Tribunal did consider Mr Ali’s evidence regarding other applicants in a similar situation and gave no weight to that evidence as the Tribunal's role “is to carefully consider all of the applicant's circumstances” (emphasis added) in reaching its decision.[37]

   [36] Migration Act, s.348; SZQVV v Minister for Immigration and Citizenship [2012] FCA 871, [37].

   [37] DR [46].

4. Second, the two decisions of the Tribunal to which Mr Ali refers were circumstantially different to Mr Ali’s case.  Specifically, in those cases the applicants promptly responded to the Minister’s Department's NOICC and engaged in further skilled work following the termination of their employment with the sponsor as well as being the subject of pending nominations at the time of their respective Tribunal hearings.[38]

   [38] Devi, at [9], [19]-[21], and [40]; Monga, at [21]-[23] and [31]-[31].

5. In contrast to the two cases referred to, Mr Ali in the present case failed to respond to the NOICC (which caused the Tribunal to express concern about his engagement with the Minister’s Department in this regard),[39] he had also held several jobs that were not within the scope of skilled work since his termination,[40] and was not the subject of an approved nomination at the time of the hearing (16 months after his employment ended with the sponsor).[41]

   [39] DR [42].

   [40] DR [40].

   [41] DR [41].

6. In this respect, the weight afforded to evidence in the review was a matter for the Tribunal,[42] and to the extent that Mr Ali cavils with the weight given to this evidence, this ground simply seeks impermissible merits review from the Court.

   [42] NAHI v Minister for Immigration [2004] FCAFC 10 (2 February 2004), [11]; QAAT v Minister for Immigration (2005) 149 FCR 299, 311.

7. Insofar as Mr Ali submitted evidence of the other Tribunal decisions, the Tribunal did consider them but was ultimately not satisfied that they held any weight in Mr Ali’s case.[43]

   [43] DR [46].

8. The Tribunal's approach to Mr Ali’s evidence and consideration of other Tribunal decisions was orthodox and no jurisdictional error is suggested by this ground.

Ground 3 - Failure to consider Mr Ali’s financial obligations claim

1. By this ground, Mr Ali appears to complain that the Tribunal did not consider his claim regarding substantial debts he owed and the hardship that a visa cancellation would inflict on him as a result.  This ground is misconceived and reveals no error.

2. Failure to address a particular claim “apparent on the face of the material before the Tribunal” amounts to jurisdictional error, where, if accepted, that claim would “justify concluding that Mr Ali has satisfied the relevant criterion”.[44]  However, the Tribunal is not required to refer to every piece of evidence placed before it, provided that it identified that which is relevant to its reasoning and gives it appropriate weight.[45]

   [44] NABE v Minister for Immigration (No.2) (2004) 144 FCR 1, 18-19; Htun v Minister for Immigration (2001) 233 FCR 136, 152-153.

   [45] WAEE v Minister for Immigration (2003) 236 FCR 593, 604; Tran v Minister for Immigration [2004] FCAFC 297 (10 November 2004) [6]-[9].

3. This ground misfires as the Tribunal did, in fact, consider Mr Ali’s submissions with respect to his financial obligations.[46]

   [46] DR [30], [40], and [47].

4. The decision record reveals that the Tribunal not only considered Mr Ali’s claims of financial hardship,[47] but also directly discussed these claims with Mr Ali at the hearing.[48]  Ultimately, on the basis of the evidence before it, the Tribunal was simply not satisfied that Mr Ali owed the debts he claimed to be liable for.[49]

   [47] DR [33], [40], and [47].

   [48] DR [30].

   [49] DR [40], [47].

1. Factual determinations of this nature were within the purview of the Tribunal and were open to it in this case.  Mr Ali has shown no basis for asserting that the Tribunal did not consider his financial hardship claims.

Ground 4 - the Tribunal member misunderstood or misapplied the law

1. Mr Ali’s fourth and final ground appears to assert that the Tribunal member wrongly applied the law with respect to 457 visas and the Minister's power to cancel them.  For the reasons that follow, this ground is misconceived and does not reveal jurisdictional error on the part of the Tribunal.

2. The Tribunal correctly outlined the relevant law with respect to conditions imposed upon Mr Ali’s visa and the Minister's power to cancel that visa in circumstances where a valid ground for cancellation is made out.[50] Additionally, the Tribunal had regard to the Minister’s Department’s policy considerations in reaching its conclusions,[51] and discussed the purpose of 457 visas with Mr Ali throughout the course of the hearing.[52]

   [50] DR [8]-[12].

   [51] DR [13].

   [52] DR [23], [31], [34], and [38].

3. Having established that a valid ground for cancellation existed as result of non-compliance with condition 8107(3)(b),[53] the Tribunal turned its mind to the question of whether the discretion to cancel Mr Ali’s visa ought to be exercised pursuant to s.116(1)(b) of the Migration Act.[54] The Tribunal engaged in a proper evaluation of the evidence before it and determined that “considering the circumstances as a whole” Mr Ali’s visa should be cancelled.[55]

   [53] DR [11]-[12].

   [54] DR [12].

   [55] DR [48].

4. This approach was orthodox and there is no evidence which indicates the Tribunal misunderstood, misconstrued, or misapplied the relevant law when assessing Mr Ali’s application for merits review.

5. This ground seems to merely express general dissatisfaction with the Tribunal's conclusion that Mr Ali’s visa should be cancelled and, without more, does not demonstrate a viable argument of jurisdictional error.

Conclusion

1. I conclude that Mr Ali is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will accordingly order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) and I so order.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  Mr Ali is understandably concerned about his already very substantial financial indebtedness.  I invited him to consider seeking financial counselling advice, but his financial circumstances are not a reason for the Court to refrain from making a costs order.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       22 June 2018