Chalissery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 795

Federal Circuit and Family Court of Australia

(DIVISION 2)

Chalissery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 795  

File number(s):	DNG 19 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	30 August 2022
Catchwords:	MIGRATION - application for review of decision of the Administrative Appeals Tribunal to affirm a decision of the delegate to cancel the applicant’s 457 visa – where applicant has not met sponsorship requirement for visa – application is dismissed
Legislation:	Migration Act 1958 (Cth) s 359AA
Division:	Division 2 General Federal Law
Number of paragraphs:	11
Date of hearing:	30 August 2022
Place:	Darwin
The Applicant:	Appearing on his own behalf
Solicitor for the Respondents:	Ms Vanderwolf of Clayton Utz

ORDERS

DNG 19 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

NIDHIN CHALISSERY

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE YOUNG
DATE OF ORDER:	30 AUGUST 2022

THE COURT ORDERS THAT:

1.The application of 15 June 2020 be dismissed.

2.The Applicant is to pay the costs of the First Respondent fixed in the sum of $7,852.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 May 2020 to affirm a decision of the delegate of 23 May 2019 to cancel the applicant’s 457 visa.  The visa was cancelled because the applicant had not complied with a condition of the visa, that a period between sponsored employment not exceed 60 days.  At the time that the applicant appeared before the Tribunal it had been a period of some 677 days since the applicant had sponsored employment. It was therefore unquestioned that the period was greater than or exceeded 60 days.  There is a singular ground of review with a multitude of particulars.

2. I will not read all of the particulars. In summary, the applicant alleges in his amended grounds of review that the Tribunal failed in its obligation, under section 359AA of the Migration Act 1958 (Cth) (“the Act”), to give the applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. According to the applicant the Tribunal failed to tell the applicant that the ground for affirming the decision was that he had exceeded 60 days without a sponsored employer. The applicant also claims he relied on a representation from the Tribunal member that it would be enough to provide a letter from the applicant’s then employer confirming that the applicant was employed.

3. In oral submissions before me the applicant reasserted that position.  The applicant asserted that the Tribunal member had not alerted him to the fact that he needed not only a new employer but that employer needed to be an approved sponsor.  I reject that submission on a factual level.  The Minister relied on an affidavit of a Ms Clarke filed on 25 September 2021 which annexed a transcript of the exchange between the Tribunal member and the applicant.  It is clear from the transcript that the Tribunal explained to the applicant what the difficulty was, that it had been considerably more than 60 days since he had lost his employment with his sponsored employer and that he had not, in the interim, obtained a new sponsorship. 

4. It is clear that the Tribunal member was aware that the applicant said he was employed as a chef at Barrel & Cruse Bistro in Katherine.  It is clear that the Tribunal member strongly suggested to the applicant that he provide all the paperwork that would be relevant, and the Tribunal said that it would give the applicant time to provide that paperwork after the oral hearing. 

5. The first mention in the transcript of the Tribunal member asking for further information begins at line 214 on page 8, which is a general statement that a letter is required at the least.  At page 10 starting at about line 357 the Tribunal member also said the difficulty was that the applicant, on his own admission, had not been employed in a sponsored position for more than 60 days.  The applicant said that he understood that.

6. At page 11 the applicant, in response to the Tribunal member, said:

   I had already sent an email, so on the call they said you have to wait for email back, because my employer doesn’t have a sponsor letter.  They want to sponsor me. 

7. The applicant understood that sponsorship was required, not simply employment.  The issue was restated by the Tribunal member on page 12 of the transcript, at about line 457:

   So really the nub of this matter, to really cut it down to the key points, is why didn’t you get a job within 60 days of finishing your job at Katherine RSL?

8. And the applicant replied to that question:

   Because I had a job at that time.  I had a job, but he didn’t sponsor me.  He didn’t have a sponsor letter.  He don’t have a nomination for me.  I wait the 30 days, and then 30 days came.  I don’t want to apply for any visa, I just want to get a sponsor successfully and they have to sponsor me. 

9. The applicant has succinctly explained in that passage the position. It is apparent to me that the applicant understood precisely what was required, that is, a sponsorship.  I should state that it appears that, while the applicant was clearly in breach of a visa condition at that point, the Tribunal member appears to have been willing to entertain a submission that he ought not cancel the visa or perhaps reinstate the visa if he was satisfied that the applicant had obtained another sponsorship.  Clearly, that is the point of the discussion. 

10. At page 13 of the transcript at about line 518 the Tribunal member gave particulars of the reason why the decision might be affirmed, that is, failure to obtain another sponsorship after the loss of the previous sponsored position.  At page 14 from about line 620 the Tribunal member had been encouraging the applicant to provide some further information, and the Tribunal member said:

    Detail anything further that you think is relevant that you want to comment on, to the particular that you ceased employment with an approved sponsor and that you’ve since failed to secure new employment with an approved sponsor.  Put in writing any comment or response to that, that you might have and attach any other paperwork that might be useful. 

11. It is clear to me, reading that material, that there could be little doubt in the applicant’s mind that the task facing him was not simply to provide a letter from his then employer that he was employed but to provide evidence that he had a sponsorship. In other words, employment from an approved sponsor under the 457 scheme. I am not satisfied there was any unfairness to the applicant. I am not satisfied that there has been any jurisdictional error, whether through a misrepresentation by the Tribunal member that the applicant relied on or any other deficiency in setting out the required clear particulars pursuant to section 359AA. The application is dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       27 September 2022