Baig v Minister for Immigration
[2007] FMCA 1203
•26 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAIG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1203 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a Temporary Business Entry (Class UC) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.116, 357A, 359A, 483A Migration Regulations 1994 (Cth), reg.1.03, condition 8107 |
| Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167 McKinnon v Secretary, Department of Treasury [2006] HCA 45 Minister for Immigration & Multicultural Affairs v Ahmed (2005) 143 FCR 314 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 Mohammed v Minister for Immigration & Multicultural Affairs [2005] FCAFC 47 Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261 Wu v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 133 FCR 221 |
| Applicant: | MIRZA NAVEED BAIG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG1266 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 25 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Urdu interpreter |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 17 May 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1266 of 2005
| MIRZA NAVEED BAIG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 17 May 2005 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal decision was made on 20 April 2005, and forwarded to the applicant by letter on the same date, affirming a decision of a delegate of the first respondent made on 26 October 2004, cancelling the applicant’s Temporary Business Entry (Class UC) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
A Court Book (“CB”) prepared by the first respondent’s solicitors was filed on 11 August 2005. I have marked this Exhibit “A” and the contents were read into evidence.
An affidavit of Jyoti Bharati of Bharati Solicitors was affirmed on
20 October 2006 and filed on the same date. It indicates that he was the solicitor representing the applicant. The affidavit also states that on 17 October 2006, the applicant advised that he wished to represent himself in the Court proceedings.
Background
A summary of the background to this matter is contained in the first respondent’s written submissions prepared by Mr Smith and I adopt paragraphs 1 to 4 of those submissions for the purposes of this judgment:
1. The applicant is a citizen of Pakistan who arrived in Australia on 25 August 2000. On 1 November 2003, on the basis of sponsorship by Laziza House Indian Restaurant, he was granted a Subclass 457 visa subject to a 8107 condition, namely, that he must not:
(i) cease to be employed by the employer in relation which the visa was granted; or
(ii) …
(iii) engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.
2. On 20 October 2004 DIMIA received information from Laziza House that the applicant was no longer working for it. On the same day officers of DIMIA attended the Greater Indian restaurant where they found the applicant. Subsequently, the applicant was given a notice of intention to cancel his visa indicating that the basis for the possible cancellation was that he no longer worked for Laziza House. The applicant attended an interview held by DIMIA on 26 October 2004 and, on that day, a delegate of the respondent decided to cancel the applicant’s visa.
3. On 3 November 2004 the applicant applied to the Tribunal for a review of that decision. By letter dated 3 February 2005 the Tribunal gave particulars of information it considered would be the reason or part of the reason for decision and invited him to comment on it [CB 112]. The applicant was then invited to and did attend a hearing conducted by the Tribunal in order to give evidence and present arguments in support of his claims. The Tribunal affirmed the decision under review.
4. The Tribunal found that the applicant had breached the conditions on his visa in two ways: first, he had ceased working for his sponsor on 19 August 2004 [CB 146 at (43)] and secondly, he had worked for a restaurant other than his approved business sponsor [CB 147 at (51)]. The Tribunal then considered whether it was preferable in all the circumstances of the case to exercise the discretion to cancel the applicant’s visa. In this respect, the Tribunal had regard to the considerations referred to in DIMIA’s policy as well as the evidence and arguments of the applicant as to why his visa should not be cancelled. The Tribunal concluded that the reasons for not cancelling the visa did not outweigh the reasons for cancelling it [CB 149 at (53)] and so affirmed the decision under review.
Applicant for review of the Tribunal’s decision
On 17 May 2005, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with leave granted by Registrar McIllhatton at the first court date on 1 June 2005, the applicant filed an amended application on 30 August 2005, which I adopt without alterations or corrections:
1. Erred in law in arriving at the decision to affirm the respondent’s to cancel the applicant Business Temporary Entry.
Particulars
(a) The Tribunal incorrectly applied the Act and the Regulations;
(b) The Migration Tribunal’s did not comply with the Migration Act 1958;
(c) The Tribunal erroneously rejected that the information provided by the Applicant;
(d) Failed to provide appropriate opportunity to explain information provided by the Applicant;
(e) The Tribunal misinterpreted the information provided by the Applicant;
2. The Respondent Tribunal erred in application of s 116(1) of the Migration Act in failing to consider the following:
(a) The extent of non-compliance.
Particulars The Applicant was removed by the employer only 2 months prior to the cancellation of the Applicant’s visa.
(b) The Tribunal failed to consider the Applicants efforts to change employers in making its decision.
(c) The Tribunal failed to consider the degree of hardship faced by the Applicant;
Particulars In particular, the Tribunal failed to consider the impact of the decision on young children born in Australia although not Australian citizens and the hardship in moving to Pakistan.
(d) The Tribunal failed to take into account that the sponsor’s motive such as to take over the seed capital provided by Applicant in arriving at its decision;
(d) The Tribunal erred in not finding that the Respondent’s exercise of discretion had miscarried;
(f) Erred in law in finding that the Applicant was employed by another employer in the circumstances where no payments had been found to be made to the Applicant.
3. The Tribunal’s decision involved jurisdictional error affecting the decision which is subject to this application in that it misinformed itself of the particular circumstances of the applicant and incorrectly applied the test.
4. The Tribunal breached the rules of natural justice and/or procedural fairness in connection with the making of the decision.
Particulars
(a) The applicants were not given opportunity to comment on the information forming the basis of the Tribunal’s decision;
(b) Failed to provide the applicant opportunity to clarify or provide further information and were not given proper opportunity to present their case;
(c) The Tribunal erred in not finding that the Respondent failed to give sufficient notice to the Applicant (such that notice of Intention to cancel and the actual cancellation;
(d) The Applicant was not given opportunity to provide other relevant information;
(e) The Tribunal failed to properly enquire into the business activities of the business sponsor;
(f) The Tribunal proceeded to make the decision without further relevant information;
(g) Misconstrued the evidence in particular evidence given by the Applicant in relation to Greater Indian Restaurant;
(h) The Tribunal has failed to provide detailed reasons for its decision.
Submissions and reasons
The applicant was a self-represented litigant who appeared with the assistance of an Urdu interpreter. On 24 October 2006 the applicant filed written outline of submissions which bare little relationship to the original or amended application. The applicant divided the submissions under the following headings:
a)Breach of condition 8107(a)(i) – ceased to be employed
b)Breach of – condition 8107(a)(iii)
c)Discretion under s.116
d)Unreasonableness and illogicality
When the applicant was invited to address the Court, he substantially repeated the contents of his written submissions and did not refer to the grounds of review in the amended application.
Heading (a) of the applicant’s submissions states:
7. The Tribunal at [44] that the Applicant had failed to be employed by the employer in relation to which the visa was granted. The Applicant submits that he did not cease employment with the sponsoring employer to work for Laziza Restaurant as never worked for Laziza Restaurant [at RD 18].
8. Instead the employers sent him to work for Khan Baba restaurant which was not the nominating sponsor for the Applicant’s 457 visa.
9. The Applicant submits that the Tribunal erred in finding that the Applicant had ceased to be employed by the employer in breach of condition 8107(a)(i) of the visa conditions.
10. The Applicant submits that the Applicant was not in employment due to the nominated employer’s misconduct and therefore erred in finding the Applicant had ceased to be employed by the nominated employer. It was not a condition that applicant work for Khan Baba restaurant.
11. The Applicant submits that as a very simply that he did not work for Laziza Restaurant there can not be ceasing to be employed by the sponsoring employer. In the premises the Tribunal’s affirmation of the delegate’s finding is incorrect and is in error. The Applicant submits that the prescribed circumstances under section 116 did not exist for the cancellation of the visa for this alleged breach.
12. The Applicant submits that there is no evidence that the visa applicant has breached the conditions condition 8107(a)(i) of the visa conditions. Accordingly the Tribunal erred.
In these submissions, the applicant makes serious admissions in respect to his compliance with the visa he was issued. I put those admissions to one side for the purpose of the argument that the applicant is attempting to make. In effect, the applicant requests that the Court undertake a merits review by re-stating his circumstances in relation to the alleged breach and requesting a reassessment of his entitlement to a visa. Clearly, merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ. Merits review is an assessment of the appropriateness of an earlier decision as distinct from judicial review which focuses on the lawfulness of the decision. Judicial review asks whether the decision-maker was authorised to do what he/she did under the prevailing law, not whether the actual decision was the best decision which could have been made in the circumstances. This is not a hearing de novo. The applicant’s request for a reassessment of the facts is within the jurisdiction of the Tribunal and not the Court.
The second heading of the applicant’s submissions concerns a breach of condition 8107(a)(iii) of the Migration Regulations 1994 (Cth) (“the Regulations”). This was the main thrust of both the applicant’s written and oral submissions and concerns the first respondent’s allegation that the applicant worked at the Greater Indian Restaurant where he was found with his child on 20 October 2005 by Departmental officers:
14. The Tribunal found [at 50] that the breached condition 8107(a)(iii) of visa condition as he was found to working at Greater Indian Restaurant. The Applicant submits that the Tribunal erred in making a finding that there was a breach of condition 8107(a)(iii) of visa condition. The applicant at the interview advised the officers that he was not working at Greater Indian Restaurant but had come in to prepare meal for the child.
15. In making the finding the Tribunal failed to consider the evidence as a whole as whether the Applicant was working at Greater Indian Restaurant. Instead, the Minister’s delegate proceeded to make finding on very flimsy “evidence” that is considered below. The Applicant submits that there was no evidence that the Applicant was engaged in any activity to be defined as WORK in an restaurant although the applicant was with the child at his own wife’s restaurant which itself does not prove any thing and neither this act of applicant is against any law.
16. The applicant submits that there was no evidence that any activity at the restaurant that indicate the applicant was employed at the restaurant in breach of condition; activity that would be in nature of work. The child may have put on the burner as he was alone there and applicant was not even in the kitchen but apart from that the relevant officers did not find anything whatsoever that would indicate that the Applicant was working. The restaurant is on level one and whether sign is left “open” or “closed” does not make any difference.
17. The applicant submits that the Tribunal erred as there was no evidence that any work being done on the premises. In particular, the following indicia did not exist, which would ordinarily be found in an open restaurant for business:
(i) meat and or any other food items ready for cooking;
(ii) any other items that would indicate that the restaurant was ready to serve customers;
(iii) there would be staff that are employed (restaurant can not be run by one person: illogical conclusion);
(iv) moreover, at the same time the applicant was to look after a young child (illogical conclusion);
(v) did not check the existence of the orders;
(vi) there was no customers present in the restaurant.
18. The applicant submits that the apart from finding a burner on that may have been turned on by my child who was alone in kitchen and the applicant was even not present in the kitchen at that time [but without any evidence that food was about to be put on the burner] Tribunal erred as there being evidence of work being done on the premises. Ordinarily the logical step is for the food to be ready before cooking follows. There is no logic in finding a burner on without any other activity to come to conclusion that the Applicant was working at the restaurant and reasoning is flawed; In fact the evidence is that he was there with his child while his wife was attending on sick child. It is simply too far-fetched to allege that the Applicant was working at this restaurant when there is no such evidence. The evidence is to the contrary except in minor respects.
19. The telephone call that the applicant was engaged in was definitely not in the nature of taking order [no note has been taken that was being taken or was at hand] but conversation to a friend.
20. The officers refer to saffron on the hand of the applicant but judicial notice could be taken of the fact that the saffron was not fresh on the hand and was from home cooking. And Indian spices colour are such that they normally have traces of colour for many days after being used.
21. The Applicant submits that the officers simply are in error and so is the Tribunal that a restaurant could be managed by one person who will do the cooking and serve the customers at the same time and also looking after a child simultaneously.
21. The Applicant submits that the officers simply are in error and so is the Tribunal that a restaurant could be managed by one person who will do the cooking and serve the customers at the same time and also looking after a child simultaneously.
22. The Applicant says that the Department’s officers simply being fed information by the sponsors [who were trying to avoid payment of monies owed to the Applicant and still do so] arrived with forgone conclusion that the Applicant was working at another restaurant. The officers, other than finding the applicant at Greater Indian Restaurant failed to properly check whether it was the case that activity was taking place that would indicate that the Applicant was working.
23. The Tribunal simply applied Kim v Witton Kim v Witton (1995) 59 FCR 258, where Sackville J considered a number of authorities in relation to the definition of work and then, at page 268, said:
The test is not whether the individual performing the activity receives remuneration for it, nor whether he or she performs the activity for commercial purposes or for some other reason. The test to be applied is an objective one, namely, whether the ‘activity’ performed by the individual normally attracts remuneration in Australia.
24. The Applicant submits that the Department’s officers have not found any evidence of any activity that is consistent work was being done on the premises; burner being left on can not lead to such conclusion. The Applicant submits that the prescribed circumstances under section 116 did not exist for the cancellation of the visa for this alleged breach.
25. The Applicant submits that there is no evidence that the visa applicant has breached the conditions condition 8107(a)(iii) of the visa conditions by working at another restaurant. The Applicant submits that it is pure fallacy to apply the above law to this particular set of circumstances simply because the Applicant was in the restaurant with the child and there is evidence that the other child was sick therefore the applicant as father was attending on this child. Accordingly the Tribunal erred.
Again, this is an attempt by the applicant to have this Court undertake a merits review. The applicant spent considerable time setting out the evidence in detail, in which he claims that although the officers found him at the restaurant on 20 October 2005, he was only there to prepare a meal for his child. This claim of review must also be rejected on the same basis as set out at [8] above.
The third heading of the applicant’s submissions concerns a discretion under s.116 of the Act. The applicant claims that there is no evidence of a breach of his visa conditions. However, if there were a breach, the Tribunal has a discretion not to cancel the visa. The applicant argues that the Tribunal did not properly consider all the factors involved and erred in the exercise of its discretion in the following areas which are set out in his written submissions:
The purpose of the visa holder’s travel to and stay in Australia
29. The applicant has not been asked question relating to the purpose of travel to Australia. The Applicant’s subclass 457 visa was granted for him to work as a chef. The Applicant also had intention to settle his family in Australia on long term basis and eventually apply for permanent residency for the family; this being implied from the interview. Therefore in exercise of the discretion other than looking at the formal documents the Tribunal has not properly considered the purpose of the Applicant’s travel to Australia.
The extent of non-compliance with any conditions
30. The Applicant submits that apart from the alleged non-compliance with the visa condition 8107 which led to the visa cancellation by the Department there is no other evidence of non-compliance with a visa. The sponsoring restaurant terminated the employment and also attempting to expropriate the applicant’s property interest.
31. Secondly it is alleged that the applicant worked at the Greater Indian Restaurant. The Department’s officer’s found the Applicant with his chid at this restaurant.
The degree of hardship which may be caused to the visa holder and any family members;
32. The applicant is married and has young children. At interview the review applicant informed the Officers that if his visa is cancelled this will cause hardship to the family. The Tribunal has not considered this aspect of the discretion properly, instead stating [at RD 148.2-148.3] as follows:
“…Nonetheless, the review applicant was in Australia on a temporary visa and did not have permission to stay permanently in Australia. The children are not Australian citizens or residents. There is no compelling evidence before the Tribunal that the review applicant and his family are unable to return to their home country.”
33. While the Tribunal adverted to this as a factor, the Tribunal incorrectly addressed the applicant’s visa status to come to a finding that there was no hardship.
34. The Applicant submits that the consideration of the issue of hardship requires this to be looked at rather than the visa status. The Applicant submits that the Tribunal has not addressed the issue if the applicant is able to return to Pakistan instead stating “no compelling evidence before the Tribunal” that the applicant can not return. The Applicant submits that the Tribunal has not considered the issue of hardship in exercising its discretion. Rather it was concerned with addressing the alleged breach.
The circumstances in which the ground for cancellation arose
35. The applicant was found in a restaurant with his child. The sponsoring company advised the Department that he had ceased working for them and was working at another restaurant. It was in the nominating employer’s interest to do so to avoid payment of monies owed to the Applicant. It is applicant’s submission that he was not working as stated above.
36. The Applicant submits that there was no breach by the Applicant as the sponsoring employer had the control of the situation. More recently it has been brought to the attention of the Applicant the sponsors had actually reported the matter to the Department to push out the applicant for his obvious dishonest and preplanned reasons of evading the sums of monies payable by the employer to the applicant.
37. The person’s behaviour in relation to the Department, now and on previous occasions
38.The Applicant originally lied about his identity. This was not because to be un-cooperative with the department but to keep away from the creditors of the nominating restaurant as the sponsoring employers most unfairly were directing the creditors seeking payment of the sponsoring restaurant’s debt to the Applicant. The applicant can show invoice for restaurant in his name to prove that. As soon as the Applicant became aware that he was dealing with the Department he fully co-operated with the officers. This was a case the sponsoring employer evading payment to creditors instead directing them to the applicant. The applicant’s response was appropriate until he became aware that he was dealing with the department.
39. The Applicant did initially give wrong particulars because he was being hassled by the creditors of the restaurant owned by the sponsor of the applicant. The moment it became clear that officers are from the Department of Immigration, the applicant fully co-operated.
40. The Applicant submits that there is no evidence of any previous problems in relation to the review applicant’s behaviour towards the Department as regards to any compliance of visa conditions.
41. The Applicant submits that this, the Department and the Tribunal has erroneously taken his behaviour as non-co-operation of his identity.
Any other matters the visa holder raises:
42. The applicant has clearly stated that he wished for better future for the children and wished to reside in Australia. The Applicant advised the Department that he wished to purchase another restaurant (at RD 149.2) This factor has not been considered by the Tribunal. At the time the Applicant was spoken to with all these issues, the Applicant submit that it is unfair exercise of the discretion as to only because an application was not lodged to purchase the restaurant. At the same time no weight was given to favour, that applicant’s wife was in process of purchasing the restaurant and the utilities bills were already transferred in her name. And applicant wife was running it on her own.
43. The applicant’s ability to remain in Australia so that he could address the issue of the proprietors of the nominating restaurant and the recovery of monies and the debt issues. This has not been considered by the Tribunal The key is that the Applicant would have been to comply with the condition once approval for change was granted.
44. The Tribunal failed to consider that the nominating employer had evaded payment of monies owed to the applicant. The applicant submits that any protection of identity for public interest immunity was not appropriate and ought to have been addressed.
45. The Applicant submits that the Tribunal in making this finding erred to the extent it was the sponsoring employer who pushed out the applicant from the position using their privileged position to do so for exploiting his position for evading the monies payable to the applicant.
The applicant is attempting to mount an argument that the Tribunal did not have regard to the totality of the evidence and that the factors in support of him retaining his visa outweighed those in support of a cancellation. However, the applicant has misunderstood s.116(3) of the Act, which requires the first respondent or his delegate to proceed with a visa cancellation if one of the prescribed requirements of the visa has been breached. Clearly in this case, a breach of condition 8107(a)(i) and (iii) has occurred. There are a number of cases, particularly in the area of student visas, where a failure to substantially comply with any single visa condition results in mandatory cancellation pursuant to s.116(3): Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261; Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167.
The final issue raised by the applicant in his written and oral submissions was that the Tribunal decision was affected by unreasonableness and illogicality:
47. In making its decision, the Tribunal has been illogical, in particular in relation to the breach of condition 8107(a)(iii) as the delegate has proceeded to make finding that is lacking in logic and unsupported by evidence. The Tribunal therefore has also erred in supporting such findings.
48. The Applicant submits that Tribunal’s decision is unreasonable and illogical in its interpretation of the above facts as already considered above in relation to breach of condition 8107(a)(iii).
This issue focuses again on the applicant’s claims relating to the breach of condition 8107(a)(iii) and the Departmental officers locating him at the restaurant. Again, merits review is not available in this Court.
At the commencement of the hearing, the applicant tendered a further document supplementing his written submissions which elaborated on the breach of condition 8107(a)(i) and set out at [9] above.
Mr Smith addressed the issues raised in the amended application. He submits that the particulars to the first ground do not clarify what error of law is said to have been made and the written submissions make no reference to the grounds of review set out in the amended application. He submits that the Tribunal found that the applicant had ceased working for his sponsor in August 2004, which was a breach of condition 8107(a)(i). The breach gave rise to the power to cancel the visa under s.116(1)(b) of the Act. The Tribunal’s exercise of that power was made after considering the material before it and the applicant had an opportunity to give oral evidence and make submissions.
I accept the submission made by Mr Smith that this ground cannot be sustained and ought to be rejected. The reasons have been discussed at [12] above.
Mr Smith addressed each of the claims in the second ground in turn. The first concerns the extent of the non-compliance with the visa, being that the applicant was removed from employment only two months before the cancellation. Mr Smith submits that it is not clear why this argument is favourable to the applicant. The Tribunal was clearly aware of the time frame involved, having found that the applicant had ceased work for the sponsor in August and that the cancellation had occurred in October 2004. What was important to the decision was that in this period, the applicant neither sought to obtain a new sponsor nor inform the Department of his circumstances. The Tribunal set out the basis for its findings when it discussed “the extent of non-compliance with any conditions”:
The circumstances in which the ground of cancellation arose:
· The Department was notified by the sponsor that the review applicant’s employment had been terminated. The review applicant was then located by the Department working in another restaurant.
· The review applicant indicated that the sponsor terminated his employment as he had asked for his investment money back. At the hearing the review applicant stated that he had been tricked to leave because he had been promised by his former business partners that they would sponsor him for permanent residence. The review applicant indicated he never received the termination letter dated 11 October 2004. Nevertheless, the review applicant did not seek to get a new sponsor after he stoped working for his approved business sponsor and did not approach the Department.(CB 148.5)
The second claim is that the Tribunal failed to consider the applicant’s attempts to change employers and this is apparent from contradictions in the reasons:
· He has debts here. He now has 2 part-time jobs including at Ruchi restaurant and working as a framer at Framing Doctor although he had never worked in that field. He has a job offer from Greater Indian and International restaurant. Nonetheless the review applicant has not provided evidence that he has an approved business sponsor.(CB 148.10)
The third claim concerns the degree of hardship faced by the applicant which was discussed by the Tribunal:
The degree of hardship which may be caused to the visa holder and any family members:
· The review applicant is married with three children, two of whom were born in Australia. The review applicant claimed that he had a young family to support and that he was owed money by his sponsors. Nonetheless, the review applicant was in Australia on a temporary visa and did not have permission to stay permanently in Australia. The children are not Australian citizens or residents. There is no compelling evidence before the Tribunal that the review applicant and his family are unable to return to their home country.(CB 148.2)
The fourth issue concerns the applicant’s sponsor’s motive to take over the “seed capital” provided by the applicant. Again, the Tribunal considered this issue in its decision:
· The review applicant provided evidence to show that he has had disputes with his former partners and that they have performed actions of a fraudulent nature. Nonetheless, the review applicant appears to have acquiesced with the partners’ fraudulent actions until he was located by the Department. At the hearing the review applicant stated this was because he was here on a temporary visa. It is also consistent with the fact that he had become a business partner and had a stake in the sponsoring business.(CB 149.2)
The fifth issue claims that the first respondent miscarried in its discretion. Mr Smith submits that once the Tribunal found that there was a breach of the applicant’s visa conditions, it was a matter for the Tribunal whether, on the material before it, the correct and preferable decision was to cancel the visa. Mr Smith relied on McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [1] per Gleeson CJ and Kirby J:
The characteristic function of the Administrative Appeals Tribunal, established by the Administrative Appeals Tribunal Act 1975 (Cth), is to undertake what is sometimes called "merits review" of administrative decisions, determining whether the decision under review was, on the material before the Tribunal, the correct or (in the case of discretionary decisions) the preferable one: Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577.
Mr Smith submits that the exercise of discretion by the delegate was not relevant to this claim.
The sixth issue concerns the applicant receiving no remuneration for his activities at the restaurant. Mr Smith submits that in order for an activity to be considered “work” within the meaning of the Regulations, it is not necessary for it to incur remuneration, only that it is an activity which normally attracts remuneration.(CB 147)
The relevant part of the Tribunal decision clearly indicates that the first four issues complained about by the applicant were addressed and considered; any suggestion that these issues were overlooked or not considered cannot be maintained. In the case of the fifth and sixth issues, I am satisfied that the Tribunal correctly addressed these and consequently none of the six issues raised by the applicant in the second ground can be sustained.
The third ground of the amended application claims that the Tribunal was misinformed about the circumstances of the applicant and incorrectly applied the relevant test. This ground contains no particulars and is not supported by any submissions which identify whether the Tribunal was misinformed or what test it should have applied. Nothing in the grounds gives any indication as to what the applicant is attempting to raise. I agree with the submission made by Mr Smith that this ground as stated is too vague to enable any response beyond those given to the earlier grounds.
The fourth ground claims denial of procedural fairness and identifies eight separate issues. The first is that the Tribunal failed to provide the applicant with an opportunity to comment on information which formed the basis of its decision. Mr Smith contends that the Tribunal’s obligation in this respect is stipulated in s.359A of the Act because of the operation of s.357A, as discussed in Wu v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 133 FCR 221 at [21]-[23] per Hely J:
[21]Similarly, in the context of s 357A, inNAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781, Lindgren J held that its effect was to displace the requirements of procedural fairness in favour of the protections found in the Division there under consideration and to make the latter an exhaustive statement of those requirements in relation to reviews by the Migration Review Tribunal (‘the MRT’).
[22]Section 57 of the Act is also an exhaustive statement of the circumstances in which a visa applicant is entitled to be informed of, and to have an opportunity of commenting on, information known to the Minister or his delegate which might be adverse to the visa application. Section 57 replaces what would otherwise have been the requirement of the common law hearing rule in this respect. Section 57 did not oblige the Minister to acquaint the applicant with the comparative exercise undertaken by the Minister’s delegate as neither s 57(3)(a) or (b) was satisfied, hence s 57(2) had no relevant application.
[23]The legislature cannot have intended the displacement of the natural justice hearing rule to be confined to cases in which the Minister must provide information pursuant to s 57(2). The legislature cannot have intended that the common law hearing rule would continue to apply in circumstances where s 57 did not require the provision of information to an applicant, such as country information (s 57(1)(b)), or information in relation to a visa which can only be granted whilst the applicant is offshore (s 57(3)): see NAQF (above) at [59] – [60].
It is submitted that the Tribunal complied with its obligation under that provision by issuing a letter to the applicant under s.359A. That letter invited the applicant to comment on the following information:
· On 20 October 2004 the Department received information that you had ceased employment with your sponsor, Laziza House. On the same day the Department found you at Greater Indian Restaurant where they believed you were working and subsequently cancelled your visa on 26 October 2004. You ceased working for your sponsor on 19 August 2004.(CB 112-114)
It is also noted that the Tribunal gave some weight to the fact that the applicant had lied to the Department officers when he was found working at the restaurant in October.(CB 148.6) However, this information was given by the applicant during the course of the Tribunal hearing and so comes within s.359A(4)(b) of the Act.(CB 143)
The second issue claims a failure to give the applicant an opportunity to provide further information and to present his case. Mr Smith argues that this ground cannot succeed in light of the s.359A letter (CB 112), the fact that the applicant was represented (CB 25), and the invitation to a hearing (CB 117,119).
The third claim is that the Tribunal erred in not finding that the delegate failed to give sufficient notice to the applicant of its intention to cancel his visa. Mr Smith submits that any failure by the delegate to comply with the statutory notice regime in respect of visa cancellation does not affect the Tribunal’s cancellation powers once a breach of visa conditions is found: Minister for Immigration & Multicultural Affairs v Ahmed (2005) 143 FCR 314. Accordingly, Mr Smith submits that there is no error in the Tribunal’s failure to find that the delegate had given insufficient notice to the applicant.(CB 7)
The fourth issue repeats the second issue of this ground discussed at [27] above. Attached to the applicant’s response to the hearing invitation were documents in support of his claim. An opportunity was already provided for the applicant to file further documents and he availed himself of that opportunity. The applicant also did not request more time to submit further documents.
The fifth issue is that the Tribunal failed to inquire into the business activities of the applicant’s visa sponsor. Mr Smith submits that there is no general duty to inquire and further that nothing in these circumstances gave rise to any such duty: Mohammed v Minister for Immigration & Multicultural Affairs [2005] FCAFC 47.
The sixth issue is that the Tribunal proceeded without further relevant information. This claim is made in the absence of particulars or written or oral submissions, and without consideration of the actions taken by the Tribunal as discussed at [27] and [29] above.
The seventh issue claims that the Tribunal misconstrued the evidence given. Mr Smith submits that this issue is insufficiently particularised to enable a detailed response. However if the Tribunal did misconstrue evidence, that only goes to the merits of the decision and not to the jurisdiction of the Tribunal.
The eighth issue is that the Tribunal failed to give reasons. Mr Smith submits submitted that Tribunal provided a statement of reasons in its decision.(CB 139-149)
I am satisfied that none of the eight issues raised under the fourth ground of the amended application can be sustained. There is an element of repetition in the claims, which, coupled with an absence of particulars or submissions, are so vague as to make it difficult to determine the nature of the applicant’s complaints. I am satisfied that the submissions of Mr Smith address the complaints appropriately and that none of the issues can be sustained as grounds of jurisdictional error.
Conclusion
The applicant appeared as a self-represented litigant assisted by an Urdu interpreter. Although the applicant filed an amended application and written submissions, the substantial thrust of these documents was, in effect, a request for merits review. Similarly, the extensive oral submissions made by the applicant during the Court hearing re-ventilated the facts of his case. I am satisfied that all of the issues identified in the application, and in written and oral submissions, have been satisfactorily addressed. It is not apparent that any jurisdictional error occurred during the decision-making process. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 25 July 2007
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