Begum & Anor v Minister for Immigration & Anor (No.2)

[2018] FCCA 421

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEGUM & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) [2018] FCCA 421

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – cancellation by Delegate of Temporary Work (Skilled) (Subclass 457) visasunder s.116(1)(g) of the Migration Act 1958 (Cth) on the basis that the sponsor of the visa holder had been cancelled under s.140M(1)(a) and that the visa holder had breached Condition 8107, in that she ceased and remained out of work for a period exceeding 90 days – application for judicial review of decision of Administrative Appeals Tribunal to affirm the cancellation of the Delegate – no jurisdictional error and no wrongful exercise of discretion – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 140, 140M

Migration Regulations 1994 (Cth)

First Applicant: NAZEMA BEGUM

Second Applicant: ZAFFAR ABDUL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3570 of 2016

Judgment of: Judge Dowdy

Hearing date: 21 February 2018

Date of Last Submission: 21 February 2018

Delivered at: Sydney

Delivered on: 21 February 2018

REPRESENTATION

The Second Applicant appeared in person on behalf the First Applicant and himself.

Counsel for the First Respondent: Mr T Reilly of Counsel

Solicitors for the First Respondent: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 15 December 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3570 of 2016

NAZEMA BEGUM

First Applicant

ZAFFAR ABDUL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction and General Background

1. The First Applicant is a female citizen of India aged 30 years, having been born on 8 March 1987.  On 31 July 2014 she was granted a (Class UC) (Subclass 457) Temporary Work visa (457 visa) under s.116 of the Migration Act 1958 (Cth) (the Act), which was to expire on 31 July 2018. 

2. The Second Applicant is her husband and a male citizen of India aged 32 years, having been born on 2 May 1985.  He was added to the 457 visa of his wife, the First Applicant, as a dependent on 9 October 2014. 

3. By Application filed in this court on 15 December 2016, the Applicants seek to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 18 November 2016, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 24 June 2016 to cancel the First Applicant’s 457 visa. 

4. The 457 visa had been granted to the First Applicant based on her sponsorship by Lester Partnership Pty Ltd. On 22 October 2014, the sponsorship was transferred to Sydney IT Careers Pty Ltd (the sponsor).  Then on 2 December 2015 the Department of the Minister (Department) cancelled the sponsor’s approval as a standard business sponsor under s.140M(1)(a) of the Act and barred the sponsor for two years from making future applications for approval as a standard business sponsor.

Decision of the Delegate

1. On 11 May 2016, the Department sent the First Applicant a Notice of Intention to Consider Cancellation of her 457 visa. The First Applicant caused submissions to be made to the Delegate who took them into account, but cancelled the visa under s.116(1)(g) of the Act on the basis that a prescribed ground for cancelling the visa existed, namely, the ground comprised in reg.2.43(1)(l)(iv) of the Migration Regulations 1994 (Cth) (the Regulations), that the sponsor’s approval had been cancelled under s.140M(1)(a) of the Act and the sponsor barred from making future applications for approval as a standard business sponsor.

2. The Delegate was satisfied that the sponsor’s approval had been cancelled on 2 December 2015. The Delegate was also satisfied that the First Applicant was in breach of Condition 8107 (namely Condition 8107(3)(b) of the Regulations), which had been imposed upon her 457 visa (i.e. by cl.457.611(2)) in that she had ceased and remained out of employment for a period exceeding 90 days.

3. The Delegate, in her Decision Record, noted that on 10 February 2016, a Mr Ashad had lodged a new nomination request for the First Applicant,  but that this had been refused on 21 June 2016. There had been a further nomination request by Mr Ashad for the First Applicant lodged on 23 June 2016, but as at the time of the decision of the Delegate that had not apparently been processed, and the Delegate noted that the First Applicant was in breach of Condition 8107 and therefore gave little weight to the fact that Mr Ashad had made a second nomination application for the First Applicant.  In the result, the Delegate cancelled the 457 visa on 24 June 2016. 

Decision of the Tribunal

1. On 28 June 2016, the Applicants lodged an application for review of the Delegate’s decision with the Tribunal.

2. By its Decision Record of 18 November 2016, the Tribunal was satisfied that because the sponsor had been cancelled and barred under s.140M of the Act there existed a prescribed ground for cancellation of the First Applicant’s 457 visa for the purposes of s.116(1)(g) of the Act under reg.2.43(1)(l)(iv) of the Regulations.

3. The Tribunal then moved to the exercise of its discretion to cancel the visa and considered a number of matters.  It accepted that the First Applicant wished to stay in Australia permanently, to not return to India, was pregnant and wished to pursue her career and to raise her family in Australia.  It also accepted also that neither Applicant was responsible for the circumstances in which the ground for cancellation had arisen.  Nevertheless, it placed weight on the First Applicant’s inability to secure sponsored skilled employment since she had ceased working for the cancelled sponsor some 11 months previously, in December 2015.

4. The Tribunal recorded that by the time of its decision the second nomination of the First Applicant by Mr Ashad had also been unsuccessful, so that this meant that the First Applicant had twice been unsuccessful in applying for nominations.  It considered that the First Applicant had been given a reasonable opportunity to secure sponsored employment since her employment had ceased in early December 2015. It noted that the purpose of a 457 visa such as had been granted to the First Applicant was not for permanent stay in Australia but to temporarily fill vacancies in Australia in skilled positions. 

5. Whilst accepting that there had been no breach of any visa conditions apart from the breach of Condition 8107, the Tribunal placed weight on the fact that despite having had 11 months since she had left employment with the sponsor and two nominations by Mr Ashad, she was still not the subject of an approved nomination. In the result, the Tribunal affirmed the decision of the Delegate to cancel the First Applicant’s 457 visa. 

6. I also note that at [5] of its Decision Record, the Tribunal stated with respect to the husband, the Second Applicant, that his visa was automatically cancelled as a consequence of the cancellation by the Delegate of his wife’s visa pursuant to the operation of s.140(1) of the Act, which made the cancellation of the Second Applicant’s visa self-executing on the cancellation of the visa of his wife, and accordingly the Tribunal had no jurisdiction with respect to the cancellation of the Second Applicant’s visa.

7. I finally note that at [8] of its Decision Record the Tribunal recorded that there was a s.375A certificate (s.375A certificate) on the Department’s file which it regarded as invalid because the documents covered by the s.375A certificate merely referred to folios containing information relating to Departmental procedures.  The Tribunal went on to state that it had considered that material, but did not consider it relevant to the review it was conducting. 

Grounds of Attack of Tribunal Decision in this Court

1. The Grounds of the Application are as follows:

   1.The second respondent made jurisdictional errors by having acted in the breaching of procedural fairness.

   Particulars

   a. There is a s375A certificate on the department file which requires that “the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review”(s375A(2)(b)).

   b. The tribunal had considered that the certificate was invalid, however it had not disclosed the relevant information or the document to me.

   c. The certificate demonstrated the department's prejudice or bias against me or prejudice or bias extended to me for its unsatisfaction against the third party.

   d. The information or the document might be related to the decision to cancel my visa, and it was also related to the refusal of my two nomination applications, as the two decisions were made in very bad faith and plainly no evidence to support the finding.

   2.The second respondent made jurisdictional errors by giving improper consideration to the relevant information.

   Particulars

   a. The grounds for cancellation not related to myself but the sponsor who had lost its sponsorship status or had been barred from being a sponsor;

   b. My cooperative conduct towards the department;

   c. Unreasonable, biased refusal of the two nomination applications in respect of me;

   d. My pregnancy and health well being.

Consideration

Ground 1

1. The first Ground asserts that the Tribunal made jurisdictional errors in relation to procedural fairness with respect to the s.375A certificate.  It asserts that while the Tribunal considered the s.375A certificate was invalid, it had not disclosed the information or documents the subject of the s.375A certificate to the Applicants.  Further, it asserts that the s.375A certificate demonstrated the Department’s prejudice or bias against the Applicants. 

2. I reject this ground. The simple fact of the matter is that the documents the subject of the s.375A certificate are internal Departmental emails and a priority case load assessment document.  They are of the most mundane and banal nature and could never have had any relevance to any issue that the Tribunal was considering in its review.  They could not have caused any practical injustice to the Applicants.

3. The fact that the s.375A certificate itself and the documents the subject of that certificate were not disclosed to the Applicants has not caused them any practical disadvantage or injustice.  In my view, Ground 1 fails to establish that, by reference to the s.375A certificate or anything to do with it, jurisdictional error or procedural unfairness constituting jurisdictional error is established.  Nothing in the s.375A certificate or the documents the subject of the certificate demonstrate prejudice or bias by the Department against either of the Applicants, and none of the documents the subject of the s.375A certificate have anything material to do with the review process undertaken by the Tribunal. 

4. Accordingly, Ground 1 fails to establish jurisdictional error.

Ground 2

1. This Ground asserts that the Tribunal made jurisdictional errors by giving improper consideration to relevant information.  The particulars to the Ground assert that the Tribunal gave improper consideration to the fact that the sponsor had lost sponsorship status and had been barred from being a sponsor. The particulars also refer to the cooperative conduct of the Applicants towards the Department and to an unreasonable biased refusal of the two nomination applications in respect of the First Applicant made by Mr Ashad. Finally, the particulars refer to the “pregnancy and health wellbeing” of the First Applicant. 

2. In my view, this Ground also fails.

3. The reference by the Tribunal to the cancellation of the sponsor was necessary in terms of the review process undertaken by the Tribunal. The cancellation of the sponsorship and the barring of the sponsor under section 140M of the Act were facts relevant to the cancellation of the 457 visa under s.116(1)(g) and reg.2.43(1)(l)(iv) of the Regulations and necessarily had to be considered, understood and referred to by the Tribunal in its Decision Record.

4. The second particular relating to cooperative conduct towards the Department does not establish jurisdictional error.  That was a matter which was referred to by the Department as a discretionary consideration.  But in the result it did not countervail against the other matters that the Tribunal took into account in affirming the decision of the Delegate. 

5. Third, there is not a skerrick of evidence that the Department’s refusal of Mr Ashad’s two nominations of the First Applicant were unreasonable or biased in some way. And indeed, that never seems to have been asserted by the First Applicant to the Tribunal because at [19] of its Decision Record the Tribunal records that the First Applicant merely told the Tribunal that both of her nominations by Mr Ashad had been refused, without alleging any bias or unreasonableness as affecting or prompting those refusals. Her only complaint as recorded at [19] was that she had not been earlier notified of the Department’s intention to consider cancellation of her 457 visa.

6. Fourth, the First Applicant’s health and wellbeing were considered by the Tribunal, but the Tribunal in particular took into account that the purpose of the 457 visa program was to temporarily fill vacancies in skilled positions and it was not satisfied that there was any compelling need for the First Applicant to remain in Australia. 

7. In my view, Ground 2 of the Application also fails to establish jurisdictional error. 

Disposition

1. In these circumstances, the Applicants have failed to establish that the decision of the Tribunal is affected by jurisdictional error and accordingly the Application filed in this Court is to be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  26 February 2018