Arasu v Minister for Immigration
[2009] FMCA 574
•17 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ARASU v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 574 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a Sub-Class 457 Business Long Stay visa – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.116(1)(b), 359A, 474(2) |
| Applicant: | POOMPAVAI ARASU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 741 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 June 2009 |
| Date of Last Submission: | 17 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2009 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms McWilliam |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 741 of 2009
| POOMPAVAI ARASU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The application before the Court today is an application to review a decision of the Migration Review Tribunal. On 3 March 2009 the Tribunal affirmed a decision of the delegate minister to cancel the applicant's Sub-Class 457 Business Long Stay Visa. That decision was notified to the applicant by registered post the following day, 4 March 2009.
The applicant, as I said, seeks a review of that decision. In particular she seeks a new hearing by the Tribunal. She seeks a finding that the previous Tribunal decision was invalid and she asks for an order not to have her visa refused. As I explained whether or not a visa is refused is a decision of the Minister or the delegate of the Minister or the Tribunal; not the Court.
As far as a finding that the decision is invalid and ordering a new hearing or remitting an application to the Tribunal for a further hearing those are matters that are within the jurisdiction of the Court. The Court will only make such an order if it is satisfied that the decision is affected by jurisdictional error.
The grounds of the application for review are that the Tribunal should have invited the applicant for a second hearing because when she read the decision the Tribunal had made a number of adverse findings in her case. If the Tribunal had called for a second hearing the applicant would have explained the matters that were the subject of the adverse findings.
The Minister for Immigration and Citizenship opposes the orders sought by the applicant. The background to this matter is that the applicant was granted a Sub-Class 457 Business Long Stay visa on 13 January 2005. However, the applicant was notified on 11 June 2008 that a delegate of the minister was considering cancelling that visa.
Indeed, the visa was cancelled under the provisions of s.116(1)(b) of the Act on the basis that the applicant had breached a condition of the visa, namely condition 8107. The applicant applied to the Tribunal on 17 June 2008 for a review of the delegate's decision. The applicant was invited to attend a hearing of the Tribunal which was initially scheduled for 10 February 2009. However, that hearing was adjourned at the request of the applicant for medical reasons and the applicant appeared on 10 February 2009 where she gave evidence and she made arguments in support of her case. The applicant's husband also gave evidence and he has joined the applicant today.
The applicant gave evidence on a number of points and the Tribunal asked her a number of questions. The Tribunal decision, as I said, was signed on 3 March 2009. A copy was forwarded to the applicant the following day. In its findings and reasons the Tribunal noted that the delegate had decided that the applicant had breached condition 8107 of the visa which was a ground for cancellation of the visa under ss.116(1)(b) of the Act.
The basis of the breach was that the applicant had been employed with a company known as Global IT Technologies Pty Ltd. However, it was found that the applicant had ceased work for the company because it had gone into liquidation. In addition it was found that the applicant had been employed since 2005 as a consultant for distributing Avon products. The applicant sought to explain that at the hearing.
The Tribunal found that the applicant's former employer which had gone into liquidation did not have any ongoing employees and the Tribunal found that the applicant had not been employed by her sponsor for a significant time since a liquidator was appointed and the company was wound up.
The applicant at the hearing had said that she last worked for the sponsor on 20 May 2007 and had last received a payment in June 2007. She was not on paid maternity leave and the Tribunal found that she had not worked for the sponsor for some 20 months. The Tribunal found that the applicant had ceased to be employed by her employer in relation to which the visa was granted which was Global IT Technologies Pty Ltd and that was found to be a breach of condition 8107A(1).
The applicant was also found to be in breach of condition 8107A(3). The Tribunal noted a letter from Avon Products Pty Ltd dated 18 February 2008 advising the applicant was appointed as an Avon representative on 28 August 2005 and continued in that capacity. Avon representatives are not employees but only independent contractors who retail Avon products and earn a retail commission on the sale. The Tribunal found that this would be a breach of condition 8107.
The Tribunal found that the applicant had engaged in work on her own account while undertaking employment in relation to which the visa was granted which was a breach of condition 8107A(3). The Tribunal was satisfied that the ground for cancellation in ss.116(1)(b) existed and it then proceeded to consider the exercise of its discretion. In other words, the Tribunal found that it considered whether it should exercise the power to cancel the visa.
The Tribunal set out a number of matters which were described as relevant circumstances. They were;
The purpose of the visa holder's travel to stay in Australia, the degree of hardship that may be caused to the visa holder and any family members, the circumstances in which the ground for cancellation arose, for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa, the visa holder's past and present behaviour towards the department, whether there are persons in Australia whose visa would or may be cancelled under s.140 and whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation such as, (1) if there are children in Australia whose interests could be affected by the cancellation or who would themselves be affected by consequential cancellation. The best interests of the children are to be treated as a primary consideration. (2) Whether the cancellation would lead to removal in breach of Australia's non- (indistinct) obligations, that is removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment and any other matter the visa holder raises. (See Court Book page 124.)
The Tribunal then proceeded to consider those various matters under the appropriate headings and also noted the matters raised by the applicant but concluded that the visa should be cancelled. The applicant sought judicial review of that decision in this Court by means of an application and an affidavit in support filed on 30 March 2009. The application came before this Court on its first Court date, 20 April 2009. The applicant indicated that she was seeking legal advice and accordingly as the Court had noted that the applicant had in fact made an application with the Legal Aid Commission of New South Wales. A hearing date somewhat later than normal was set and the application was listed for hearing today, 17 June 2009.
The applicant has attended the Court today not legally represented. She is accompanied by her husband. She has filed an amended application and has made oral submissions. The basis of the applicant's submissions today are that if she was granted a second hearing before the Tribunal she could explain the circumstances about the company liquidation. She also wished to make it clear that her younger child was born in Australia. The applicant took the view that the decision by the delegate to cancel the visa was in breach of the United Nations Convention under the rights of the child and that the delegate had not acted in the best interests of the child.
I have had the benefit of reading the written outline of submissions provided by counsel for the Minister and I have heard the oral submissions by counsel for the Minister. The amended application claims that the Tribunal should have invited the applicant to a second hearing because the Tribunal had made a number of adverse findings in the applicant's case. The applicant would be able to explain those matters if she attended a further hearing.
I take that to be a submission that may or may not be allegation of a breach of s.359A of the Migration Act. In my view however, there is no such breach of the section. There is no information provided that should have been conveyed to the applicant in writing but was not so provided. I note that the Tribunal found that there was a breach of condition 8107A(1) and 8107A(3) due to the fact that the applicant had not been employed by her former employer since June 2007 and that she had worked as an Avon representative. The applicant had told the Court that basically obtaining Avon products was so that she could send them back to family members in India.
However, there was evidence before the Tribunal in which the Tribunal could be satisfied that the applicant was in fact employed as an Avon representative as an independent contractor and in my view on the Tribunal's being satisfied of that fact it was therefore open to the Tribunal to find a breach of condition 8107A(3).
As far as the other breach of condition 8107 is concerned; it is established that the applicant had not in fact worked for the employer since June 2007. True it is that this was not due to any fault on the part of the applicant but it was because the company went into liquidation. Nevertheless it was open to the Tribunal to, on the evidence, find that there had been a breach of the particular condition.
The Tribunal did address the question of whether it should exercise discretion under s.116 of the Act. In doing so it considered these factors which have been conveniently set out in the written outline of submissions prepared by counsel for the minister. They are as follows;
a)The purpose for issuing a visa had ceased.
b)The family had been in Australia for four years. One child was at school in Australia and the other was born in Australia. The family was presently in financial hardship and four people would be affected by any cancellation of the visa.
c)The company going into liquidation was outside the applicant's control.
d)The applicant failed to notify the department that she had ceased employment with her sponsor and had worked for Avon.
e)There was no medical evidence to support a claim that the applicant's children were unable to live in India.
f)The applicant had been unable to find a new sponsor.
g)There was nothing to suggest that the cancellation would breach Australia's non-refoulement obligations.
Accordingly, the Tribunal decided that it was appropriate to cancel the visa. In my view, there is no jurisdictional error on the part of the Tribunal. It complied with its obligations to give notice under s.119 of the Act by way of a letter dated 23 April 2008 setting out the grounds. That notice complied with s.120 of the Act by giving sufficient particulars of the information to allow the applicant to understand the relevance and inviting him to comment.
The Tribunal wrote to the applicant on 25 and 26 August 2008 in compliance with s.120, 121 and 359A of the Act. I have already found there was no breach of s.359A. The applicant was clearly on notice of all the issues that would be the reason or a part of the reason for the Tribunal's decision and there was no breach of s.360 of the Act.
As I said, no jurisdictional error has been made out. The request for further hearing is, in effect, an attempt to cavil at the Tribunal's initial decision. There is no ground for any further hearing. I am mindful of the fact that the applicant is not legally represented but I am cannot discern any jurisdictional error. In the absence of jurisdictional error the Tribunal decision is a privative clause as defined by ss.474(2) of the Migration Act and accordingly it is not appropriate to make orders in the nature of certiorari or mandamus or in other words to grant the applicant the relied that she seeks.
It follows that the application must be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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