Arefin v Minister for Immigration

[2019] FCCA 171

FEDERAL CIRCUIT COURT OF AUSTRALIA

AREFIN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 171

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Act) in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision to cancel 457 visa – whether Tribunal considered for itself whether the 457 visa should be cancelled – whether Tribunal considered evidence of a witness – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(b), 140, 351, 476

Migration Regulations 1994 (Cth), Schedule 8

First Applicant: MD ASIK AREFIN

Second Applicant: SHANZIDA ARFRIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: CAG 17 of 2017

Judgment of: Judge Manousaridis

Hearing date: 8 December 2017

Date of Last Submission: 8 December 2017

Delivered at: Sydney

Delivered on: 6 February 2019

REPRESENTATION

Applicants by telephone, assisted by an interpreter

Counsel for the First Respondent: Ms E Cheeseman SC

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

CAG 17 of 2017

MD ASIK AREFIN

First Applicant

SHANZIDA AREFRIN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants, who are citizens of Bangladesh, apply for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) to cancel the first applicant’s Subclass 457 (Temporary Work (Skilled)) visa (457 visa).

Background

1. On 27 September 2013 the first applicant (applicant) was granted a 457 visa. It was subject to condition 8107,[1] being one of the conditions specified in Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations). Relevant to the application before me is the following part of condition 8107(3):

   [1] Under cl.457.611(2) of Schedule 2 to the Migration Regulations 1994 (Cth), if an applicant who satisfied the primary criteria “condition 8107 must be imposed”.

   If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

   (a)the holder:

   (i) must work only in the occupation listed in the most recently approved nomination for the holder; and

   (ii)unless the circumstances in subclause (3A) apply:

   (A)     must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

   (B)     if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor—must work only in a position in the business of the sponsor or an associated entity of the sponsor; or

   (C)    if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor—must work only in a position in the business of the sponsor.

   . . . .

   (b)if the holder ceases employment—the period during which the holder ceases employment must not exceed 60 consecutive days . . .

2. The 457 visa was granted on the basis of a nomination made by a company called ANT Holdings Pty Ltd (ANT), the nominated occupation of the applicant being that of a customer service manager. Thus, to have complied with condition 8107(3) the applicant was required to maintain his employment with ANT and, if his employment with ANT ceased, the period for which his employment could have ceased could not exceed 90 days.[2]

   [2] Unless condition 8107(3A) applied. There is no suggestion that paragraph 3A of the condition 8107 applies.

3. By notice dated 15 August 2016 issued under s.116 of the Act,[3] a delegate of the Minister informed the applicants that the Department of Immigration and Border Protection (Department) had been notified that on 26 April 2016 the applicant ceased his employment with ANT, and that the applicant had ceased his employment with ANT for a period exceeding 90 consecutive days. The notice stated that if it were correct that the applicant had ceased his employment with ANT for 90 days, the 457 visa was liable to be cancelled under s.116(1)(b) of the Act. The notice stated the applicant he had the opportunity to comment on the grounds for cancellation identified in the notice.

   [3] CB8-13

4. The applicant provided a response to the Department by email sent on 29 August 2016.[4] The applicant said that his employer had given him the “wrong impression” that the applicant was “was no longer under the 457 visa”; the applicant was therefore waiting for permanent residency; the applicant took annual leave at the request of his employer; the applicant did not receive any notice from his employer or any other organisation “regarding this issue” and he was not aware “of the 90 days binding rule of Immigration”; on 3 June 2016 the applicant became aware that ANT’s business had already closed down, but his employer told the applicant not to worry because “they were purchasing a new business under the same “ANT Holdings Pty Ltd””, and the applicant’s employer asked the applicant “to stay home for the time being”; and after 3 June 2016 the applicant searched for a new employer.

   [4] CB23-24

5. By notice dated 13 September 2016 the delegate cancelled the applicant’s 457 visa.

6. The applicants applied to the Tribunal for review of the delegate’s decision. Attached to his application to the Tribunal was a copy of a letter from the Department dated 23 August 2016 acknowledging that the Department had received a nomination application by Megasave Logistics Pty Ltd (Megasave) in relation to the applicant.[5] In an undated letter to the Tribunal the applicant repeated the substance of the matters the applicant stated in the email he sent to the Department on 29 August 2018.[6] The applicant also gave evidence to the Tribunal at two separate hearings, one on 13 December 2016,[7] and one on 9 February 2017.[8]

   [5] CB76-77

   [6] CB134-136

   [7] CB118-120

   [8] CB130-133

7. During the first hearing before the Tribunal the applicant said he stopped working with ANT on 28 February 2016. The applicant also said that Megasave sponsored him and, although he did not have available evidence of an approved nomination, he had everything ready and would be able to obtain the information from the lawyer and provide it to the Tribunal.[9]

   [9] CB359, [22]

8. Before the second hearing,[10] the applicant provided to the Tribunal a letter dated 11 December 2016 from a Mr Neumann,[11] who described himself as the executive chef and owner of the “Grazing Restaurant”, stating that he is willing to employ the applicant in a fulltime position as “Chef/Kitchen Manager”. The applicant also provided to the Tribunal a payslip issued by “Grazing By” recording payment to the applicant on 26 January 2017,[12] and a letter dated 29 January 2017 from the Department to the “Neumann Family Trust” acknowledging receipt of a nomination application.[13]

   [10] CB359, [23]

   [11] CB344

   [12] CB345

   [13] CB346

9. At the second hearing the Tribunal expressed concern that the applicant would be unable to fulfil the purpose of the 457 visa because the applicant was not the subject of any approved nomination. The applicant said it was not easy to obtain a nomination, and he requested the Tribunal await the outcome of the application for nomination made by the owner of “Grazing Restaurant”.

Tribunal’s reasons

1. The Tribunal found that the applicant ceased employment with ANT in February 2016, and he had ceased employment for a period of at least 90 days. Given those findings the Tribunal was satisfied that the power under s.116 of the Act to cancel the 457 visa had been engaged. The Tribunal then considered whether as a matter of discretion the 457 visa should be cancelled. The Tribunal referred to a number of matters.

2. The Tribunal first considered whether the Tribunal should grant the applicant further time to seek an approved nomination. The Tribunal decided it would not give the applicant further time. The Tribunal relied on Neumann Family Trust having made the nomination application less than two weeks before the second hearing and it may take several months to process; the Tribunal’s being required to make decisions in an efficient manner; the Tribunal’s view that the applicant had a fair opportunity to become the subject of an approved nomination, given the applicant had ceased working for an approved sponsor in February 2016 and had not been able to obtain an approved nomination to date; the applicant’s having the option of going offshore and lodging a fresh 457 visa; and the Tribunal’s view that permitting the applicant to remain in Australia on a 457 visa to await the outcome of another nomination was not consistent with the purpose of 457 visa.[14] The Tribunal considered that these matters weighed in favour of affirming the cancellation of the 457 visa.[15]

   [14] CB359, [26], [28]. The Tribunal said earlier in its reasons (at [22]), that it “considers that the purpose of the 457 visa is to work in Australia for an approved business sponsor in an approved nominated occupation”.

   [15] CB359, [29]

3. Second, the Tribunal considered the extent to which the applicant had complied with the 457 visa conditions, the applicant’s conduct towards the Department, and the applicant’s general compliance with the conditions attached to the 457 visa and found that these were matters that weighed against the cancelling of the 457 visa.[16]

   [16] CB360, [30]-[32]

4. Third, the Tribunal considered the circumstances in which the 457 visa was cancelled. Here the Tribunal referred to the applicant’s evidence that after he lodged his application for permanent residency in February 2016 he thought he was no longer under the 457 visa, that he was on leave and was waiting for permanent residency, and that in June 2016 he found out ANT’s business had closed down, that when he contacted his employer the applicant was told that the employer would be purchasing a new business, and the applicant was not aware of the 90 day period. The Tribunal considered the applicant’s lack of awareness of the conditions of his visa weighed in favour of the 457 visa being cancelled.[17]

   [17] CB360, [33]-[36]

5. Fourth, the Tribunal considered evidence the applicant and a Mr Singh (a former work colleague of the applicant) gave, together with documents provided by the Fair Work Ombudsman, about a workplace dispute the applicant had with ANT and its directors.[18] The Tribunal accepted that the circumstances in which the cancellation of the 457 visa occurred was in part due to the actions of ANT and its directors, in particular their failure to communicate to the applicant about the status of ANT’s business, and misrepresentations they made regarding the purchase of a new business and maintaining the applicant’s position in the new business.[19] The Tribunal gave some weight to these matters in favour of not cancelling the 457 visa.[20]

   [18] The nature of the dispute is set out at CB249-250

   [19] CB361, [39]

   [20] CB361, [40]

6. Fifth, the Tribunal acknowledged that the applicant wished to maintain proceedings against ANT, but concluded that was not a factor weighing in favour of the 457 visa not being cancelled because permitting the applicant to remain in Australia on a 457 visa was not consistent with the purposes of such class of visa;[21] and in any event it was possible for the applicant to obtain a bridging visa or otherwise apply for Ministerial intervention under s.351 of the Act which gives the Minister power to substitute a decision more favourable than that which the Tribunal may make.[22]

   [21] CB361, [42]

   [22] CB361-362, [43]

7. Sixth, the Tribunal acknowledged that the cancellation of the 457 visa is likely to cause the applicants financial and emotional hardship, and that their return to Bangladesh may cause difficulties for them, given the time they have lived in Australia. The Tribunal observed, however, that the applicants reside in Australia as holders of temporary visas that were granted for limited purposes. The Tribunal also referred to the second applicant’s seeing a doctor in Australia for a variety of issues, but noted that it is not consistent with the purpose of the 457 visa for the applicants to remain in Australia to seek medical treatment.[23] The Tribunal gave some weight to the hardship the applicants may experience, but it was not satisfied the hardship outweighed the purpose of the applicant’s stay in Australia as the holder of a 457 visa.[24]

   [23] CB362, [46]

   [24] CB362, [47]

8. Seventh, the Tribunal referred to the consequences to the second respondent if the 457 visa were cancelled, namely, the automatic cancellation of the second applicant’s visa by operation of s.140 of the Act, but gave limited weight to this because the second applicant’s was granted the visa on the basis she was a member of the applicant’s family unit.[25]

   [25] CB362, [48], [49]

9. The Tribunal also considered the mandatory legal consequences of cancellation of the 457 visa,[26] whether the applicant would be affected by public interest criteria 4013 and 4014,[27] and representations made on behalf of the applicants by the member of Monaro.[28]

   [26] CB362, [50], [51]

   [27] CB363, [53]-[55]

   [28] CB363, [57]

10. The Tribunal concluded that the circumstances it identified in favour of cancelling the 457 visa outweighed those in favour of not cancelling the 457 visa.[29] The Tribunal, therefore, affirmed the delegate’s decision to cancel the 457 visa.

    [29] CB363, [59]

Grounds of application

1. The applicants, who are not legally represented, rely on four grounds of application. The applicant, who appeared at the hearing before me by telephone with the assistance of an interpreter, made oral submissions. Before the commencement of the hearing the applicant provided to the Court by email a number of documents, some of which I admitted into evidence. One of the documents is titled “To whom it may concern”, and it contains written submissions (written submissions). I will first refer to the written submissions.

Written submissions

1. The written submissions repeat the substance of the matters the applicant stated to the Tribunal concerning his employment and relationship with ANT, and the circumstances in which the applicant became aware that ANT’s business had closed. The written submissions then refer to the applicant’s application for review to the Tribunal, an application for Ministerial intervention, ANT’s being ordered to be wound up on 16 December 2016, and the applicant’s submitting his claims to the liquidators of ANT. The written submissions then refer to the applicant’s not having undertaken any unlawful activities against the Australian government or the Department or any other organisation, that all the applicants’ suffering is due to the applicant’s sponsor’s cheating activities, and the applicant and his wife do not have work rights in Australia making it very hard for the applicant and his wife to survive in Australia. The written submissions conclude with a request that “you save me from this critical situation and please allow me certain period of time for applying my new 457 visa while I am in Australia as my Nomination of Grazing at Gundaroo for new 457 Visa has already been approved by Immigration and Border Protection on 18^th October 2017”.

2. It is apparent that the written submissions do not engage with the Tribunal’s decision or the reasons on which the Tribunal relied for affirming the delegate’s cancellation of the 457 visa. The written submissions are an appeal to a power this Court does not possess, namely, to set aside the Tribunal’s decision on account of the hardship the applicant has suffered from the actions and omissions of ANT. Nothing in the written submissions, therefore, disclose any jurisdictional error by the Tribunal.

Submissions at hearing

1. The applicant made a number of submissions at the hearing before me. The first is that the only point the Tribunal took into consideration was the applicant’s not having fulfilled condition 8107. I do not accept that submission. It is clear from my summary of the Tribunal’s reasons that the Tribunal recognised that breach of condition 8107 only engaged the power to cancel the 457 visa, and that whether the 457 visa should be cancelled was a matter for the exercise of discretion, having regard to such matters as were relevant to the exercise of that discretion. The Tribunal considered matters which it identified as being relevant to the exercise of the power to cancel and, after weighing those matters, it was satisfied it was appropriate to affirm the delegate’s decision to cancel the 457 visa.

2. Second, the applicant submitted he did not get natural justice.[30] I asked the applicant to explain what he meant by that, and to identify what the Tribunal did or did not do which the applicant claims amounted to a denial of natural justice. The applicant responded by requesting that I hear the audio recording of the hearings before the Tribunal. After I explored with the applicant why he wanted me to hear the audio, the following exchange occurred:[31]

   [30] T6.25

   [31] T9.20

   HIS HONOUR: Yes. All right. All right. So the reason I ask that, Mr Applicant, is – I’m still considering whether I need to listen to the audio recording. I’ve previously said to you what I understood your complaint about the AAT was. And that is that it only applied the law and didn’t really consider your circumstances and the hardship you suffered. And the second complaint you made was in relation to the evidence that Mr Singh gave. And your complaint is that it really – that is to say – the tribunal [sic] really didn’t take it into account. Now have I understood that complaint correctly?

   MR AREFIN: Yes, your Honour.

   HIS HONOUR: All right. Well, I don’t think I need to listen to the audio recording in relation to those complaints that I’ve identified. So - - -

   THE INTERPRETER: As you please, your Honour.

3. It is apparent from this passage that the applicant was unable to identify anything that could reasonably be characterised as a denial of natural justice by the Tribunal and, for that reason, I do not accept the Tribunal denied the applicant natural justice.

4. Third, the applicant submitted the Tribunal did not consider or sufficiently consider the hardship the applicants had experienced because of ANT’s actions. I do not accept that submission. It is apparent from my summary of the Tribunal’s reasons that the Tribunal did consider the hardship the applicants suffered.

5. Fourth, the applicant submitted the Tribunal did not take into account the evidence Mr Singh had given to the Tribunal. I also do not accept that submission. The Tribunal said it also had regard to documents Mr Singh provided, and to Mr Singh’s oral evidence.[32]

   [32] CB361, [37]

6. Fifth, the applicant tendered into evidence a document dated 18 October 2017 and titled “Notice of Decision Nomination Approval Notice for Subclass 457 visa”. The document records the approval of the Trustee for Neumann Family Trust being the sponsor of the applicant in relation to the occupation of “cook”. This document was created after the hearing before the Tribunal and affords no ground for finding the Tribunal made any jurisdictional error.

1. Before I leave this part of my reasons, I should note that the applicant objected to the tender of pages 265 and 266 of the Court Book because he had not provided those document to the Tribunal. Those pages are a copy of an originating process Mr Singh filed with the Federal Court for the winding up of ANT. That the applicant did not provide the documents to the Tribunal is no reason for not admitting them into evidence, and they are relevant to show that Mr Singh had submitted documents to the Tribunal which the Tribunal considered.

Grounds of application

1. The first ground is as follows (errors in original):

   At the merit review process in AAT, the decision maker did not reconsider the facts to undertake a decision. The decision maker did not take into account the relevant considerations and the principles of legality to allow Applicant’s evidences to provide a fresh look to vary the Department’s decision to cancel applicant’s visa subclass 457.

2. In response to my asking the applicant whether he wished to say anything in relation to this ground, the applicant said he did not wish to say anything. I asked the applicant, however, whether he could tell me what considerations he says the Tribunal failed to take into account. The applicant said that had he known the law he would have applied for a 457 visa straight away. I took this to be a submission that the Tribunal did not take into account the applicant’s being ignorant of his visa conditions. If that is the submission, I do not accept it. The Tribunal considered the applicant’s evidence that he was unaware of the 90 day period. The Tribunal accepted the applicant was ignorant, but the Tribunal was of the view that the applicant ought to have been aware of that condition. It was reasonably open to the Tribunal to take that view and consider it relevant to the weight it should attach to the applicant’s ignorance.

3. Ground 1 otherwise discloses no jurisdictional error. As should be apparent from my summary of its reasons, the Tribunal did consider for itself whether the 457 visa should be cancelled. And the ground does not identify any considerations it is claimed the Tribunal failed to take into account.

4. Ground 2 is as follows:

   The decision maker at the review process in the Tribunal did not ensure the fair consideration to the oral evidence of witness [Mr Singh]who provided statement in favour of the applicant.

5. In response to my asking the applicant whether he wished to say anything in relation to this ground, the applicant said that Mr Singh had come to both hearings before the Tribunal, but he gave evidence only on the second day.

6. I have already noted the Tribunal said it had regard to documents Mr Singh provided to the Tribunal, and to oral evidence he gave. The Tribunal accepted that evidence. The applicant has otherwise not identified evidence Mr Singh gave which the applicant says the Tribunal did not fairly consider. Ground 2, therefore, also fails.

7. Ground 3 is as follows:

   During the hearing, the review applicant submitted his facts to the Tribunal, but Tribunal did not apply its judicial mind to review the cancellation decision made by the Department.

8. The applicant made no submissions in support of this ground.

9. The ground appears to claim the Tribunal did not consider or properly consider for itself the question whether the 457 visa should be cancelled. I do not accept the claim. As I have already noted, the Tribunal recognised that breach of condition 8107 only engaged the power to cancel the 457 visa, and that whether the 457 visa should be cancelled was a matter for the exercise of discretion, having regard to such matters as were relevant to the exercise of that discretion. The Tribunal considered matters which it identified as being relevant to the exercise of the power to cancel and, after weighing those matters, it was satisfied it was appropriate to affirm the delegate’s decision to cancel the 457 visa.

10. Ground 3, therefore, also fails.

11. Ground 4 is as follows (errors in original):

    The Tribunal was failure to ensure a fresh look at the facts of the matter and evidences produced to pursue the matter did not received legal consideration to make a natural justice.

12. The applicant made no submissions in support of this ground.

13. This ground claims the Tribunal did not consider for itself whether the 457 visa should be cancelled, and that the applicant was denied natural justice. I have already concluded the Tribunal did consider for itself whether the 457 visa should be cancelled; and the ground does not identify any act or omission by the Tribunal that could give rise to the conclusion that it denied the applicant natural justice.

14. Ground 4, therefore, also fails.

Conclusion and disposition

1. The applicant has failed to demonstrate the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

2. I will deal with the question of costs when I pronounce my order.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  6 February 2019