Guggal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 89
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Guggal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 89
File number(s): MLG 2193 of 2019 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 18 February 2022 Catchwords: MIGRATION – Application for judicial review – Temporary Work (Skilled) visa (subclass 457) – whether the Administrative Appeals Tribunal failed to afford the applicant procedural fairness – whether the Tribunal was or appeared to be biased or prejudiced against the applicant – whether the Tribunal’s decision was unreasonable – whether the Tribunal failed to take into account relevant considerations or took into account irrelevant considerations – whether there was insufficient evidence to support the Tribunal’s findings – where the applicant failed to put evidence before the Tribunal – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss.116, 359AA, 477 Cases cited: Guggal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1852
Minister for Immigration v SZMDS [2010] 240 CLR 611Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submission/s: 24 January 2022 Date of hearing: 24 January 2022 Place: Melbourne Solicitor for the Applicant: The applicant appearing on his own behalf Solicitor for the Respondent: Ms Nyabally ORDERS
MLG 2193 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KAMALJEET GUGGAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
18 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) affirming a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’), cancelling the applicant’s subclass 457 (Temporary Work (Skilled)) visa under section 116 of the Migration Act 1958 (Cth) (‘the Act’).
BACKGROUND
The issue before the Tribunal was whether the applicant had failed to comply with the conditions associated with his visa. Relevantly, in this case, the issue was whether the applicant had complied with the requirement in 8107(3)(b) that if the applicant ceased employment with his nominated sponsor, the period during which he was not working for that sponsor did not exceed 90 consecutive days. In this case, the applicant’s visa was granted on the basis of an employer nomination by Tyre Barn (Aust) Pty Ltd.
Notice of Intention to Consider Cancellation on 18 February 2019
The applicant was made aware of this issue in the Notice of Intention to Consider Cancellation (‘the Notice’) issued by the Department on 18 February 2019. The Notice clearly put the applicant on notice that it appeared that his employment with Tyre Barn came to an end in September 2018, and therefore, the 90 day time limit had been exceeded.
The Notice relevantly included the following statement:
On 14 February 2019, the Department contacted the owner of Tyre Barn (Aust) Pty Ltd, who confirmed your employment had ceased with the business in September 2018.[1]
[1] Court book page 21.
The Notice invited the applicant to respond within a specified period of time. That period of time for a response was then extended at the applicant’s request.[2]
[2] Court book page 26.
In his response to the Notice, the applicant described his work history and the circumstances in which his employment came to an end.[3] Whilst he did refer to being ‘sacked’ by his sponsor and said that his sponsor ‘called [him] back a short time … for a couple of days …’, causing him to return to work thinking that his employer would help him, he did not identify the dates on which he says that he returned to work. Nor did he provide any other evidence which went to the fundamental issue of when he ceased employment with his sponsor for the purposes of establishing compliance with condition 8017(3)(b) of his visa.
[3] Court book pages 27 to 30.
Cancellation of visa on 6 March 2019
In addition, if there was any doubt, the applicant was further put on notice that the question of when his employment came to an end was a significant issue in determining whether he had complied with the conditions of his visa in the delegate’s decision.
The delegate cancelled the applicant’s visa on 6 March 2019. The delegate found that there were grounds for cancellation of the applicant’s visa on the basis that the applicant had breached visa condition 8107. The delegate went on to say:
The visa holder’s employment with Tyre Barn ceased on September 2018. This is based on information provided to the Department by Victoria Police, which was verified through contacting the employer on 14 February 2019. The visa holder also confirmed this in his response to the Notice, however did not provide a date. I am therefore satisfied, for the purposes of this decision that his employment ceased in September 2018.[4]
[4] Court book page 40.
Furthermore, in dealing with the circumstances in which the applicant’s employment came to an end, the delegate said:
The visa holder claims he was unfairly dismissed by his employer on an unspecified date. According to information provided to the Department by Victoria Police, his employment with Tyre Barn ceased in September 2018. This was verified by the Department on 14 February 2019, after contacting the visa holder’s employer.[5]
[5] Court book page 43.
Review application on 15 March 2019
The applicant lodged an application with the Tribunal on 15 March 2019.[6] The applicant was invited to attend a hearing before the Tribunal on 1 May 2019.[7]
[6] Court book pages 46 to 47.
[7] Court book page 52.
Adjournment request on 28 April 2019
On 28 April 2019, the applicant sought an adjournment of the Tribunal hearing as he was ‘seeking legal help on my AAT matter and I am not yet prepared, please grant me some more time to deal with it.’[8] That request was not granted.[9] A second request for an adjournment was received and also rejected.[10]
[8] Court book page 55.
[9] Court book pages 56 to 58.
[10] Court book pages 59 to 62.
Ultimately, the Tribunal hearing on 1 May 2019 was not able to proceed[11] and the matter was relisted on 6 May 2019.[12] It is apparent from the correspondence contained in the court book that the applicant was being held in the Melbourne Immigration Transit Accommodation at the time. The applicant has repeatedly stated throughout these proceedings that the fact that he has been in detention has significantly impacted his ability to obtain evidence to support his case.
[11] Court book page 151.
[12] Court book page 69.
Tribunal hearing held 6 May 2019
The hearing proceeded on 6 May 2019 with the applicant in attendance assisted by an interpreter in the Punjabi language.[13] The hearing record indicates that the hearing commenced just before 10am and concluded just before 11:30am.[14]
[13] Court book pages 68 and 71.
[14] Court book pages 71 to 73.
The applicant provided a letter to the Tribunal from a Mr Singh who indicated that he last saw the applicant at Tyre Barn Dandenong on 17 December 2018.[15] The applicant also produced a statement to the Tribunal at the 6 May 2019 hearing in which he said, relevantly:
I was granted 457 visa on 7th March 2015 but he asked me to come on little late and I Arrived on work 8th August and I was kicked out from work on 23rd September 2018 however due to his request that another person has gone to India he wanted me to work on 17, 18, 19 December but upon asking for money he shouted on me and said leave, don’t want to see you” are just a temporary residence, I will tell the immigration and they will remove you”.
…
… I don’t think I have breached 8107 conditions. I am presenting a customer reference who saw me working during this time period.[16]
[15] Court book page 74.
[16] Court book pages 75 to 76.
It appears that the applicant was given until 17 May 2019 to provide any post hearing documents to the member prior to a final determination of the matter.[17]
[17] Court book page 146.
Further information provided to the Tribunal 13 May 2019 and 17 May 2019
On 13 May 2019, the applicant wrote to the Tribunal seeking further time to provide more documents. In that email, the applicant said that he was seeking more time to provide another reference to prove that he was working in December 2018. He said ‘it wasn’t easy to find people, if you are locked in detention centre. I am having limited resources.’[18]
[18] Court book page 77.
Also on 13 May 2019, the applicant again wrote to the Tribunal seeking to provide further documents in support of his application, including correspondence relating to his unfair dismissal proceedings. One of the documents provided by the applicant was a letter from Fitzroy Legal Service which is dated 10 May 2019 and which says:
Mr Guggal instructs that he was paid cash-in-hand between 27 April 2017 and 23 September 2018 and was given $800 monthly.
He is claiming underpayments in the order of $63,000.
We have contacted the employer to request copies of Mr Guggal’s pay slips and tax records and we await their response.[19]
[19] Court book page 81.
It is open to interpret this letter as stating that the applicant was employed between April 2017 and September 2018 and that during this period he was underpaid. The letter is silent on any further period of employment in December 2018.
The applicant also attached correspondence from the Australian Tax Office dated 22 April 2019 indicating that a query had been lodged about the applicant’s superannuation entitlements and whether the sponsor had made the requisite payments on his behalf.[20]
[20] Court book page 82.
The applicant also attached email exchanges with the Fair Work Ombudsman (‘FWO’) regarding his complaints about his employment entitlements. This includes two emails from the FWO – one dated 21 September 2018 referring to a telephone discussion with the applicant and requesting documents which relate to his hours of work, work performed and living quarters[21] and another dated 9 November 2018 from the FWO advising that a resolution was not able to be achieved through mediation and advising the applicant that he could pursue the matter in court.[22]
[21] Court book page 124.
[22] Court book page 126.
Finally, on 17 May 2019, the applicant provided the Tribunal with ‘customer reviews’ which he said ‘prove that I have done work even after hours…’.[23]
[23] Court book page 148.
Application for extension of time filed 9 July 2019
On 9 July 2019, the applicant sought an extension of time to apply for judicial review of the Tribunal’s decision made on 23 May 2019. This application was filed 12 days outside of the period specified in s 477 of the Act.
On 12 August 2021, the court granted the applicant’s application for an extension of time: Guggal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1852.
Orders were made on 27 September 2021 for the matter to be listed for a final hearing and also providing for the applicant to file and serve any amended application and written submissions upon which he sought to rely at least 28 days prior to the final hearing date.
The applicant did not file any amended application, nor did he file any written submissions or any further documentation.
Applicant’s submissions
At the commencement of the hearing before me, at which the applicant was assisted by an interpreter, the applicant indicated that although he had not filed an amended initiating application nor any submissions within the 28 days provided for in the September orders, he had sent an email to the court annexing some documents that he wished to rely upon.
Counsel for the first respondent was aware of this correspondence and indicated that there was no objection to the applicant’s further correspondence being placed before the court. However, counsel for the first respondent reserved her client’s right to object to the court having regard to those documents on the grounds of relevance.
On that basis, the applicant’s further documents are marked Exhibit A and consisted of a covering email from the applicant indicating that he had experienced some difficulty whilst in detention to access computers or printers. The applicant also indicated that he had been able to arrange access to another detainee’s laptop which he was able to use. The applicant also discussed his inability to secure legal representation.
Attached to his email were various documents, including time sheets relating to his work with his former employer, which he says evidence that he had in fact worked for his former employer for four days in December 2018. The applicant also attached correspondence about his former employer’s failure to make superannuation payments on his behalf as required, which also confirms that his former employer became insolvent.
When asked to expand upon his grounds of review, the applicant essentially said that the Tribunal was wrong to accept evidence from his former employer about his employment history. The applicant sought to rely upon the documents at Exhibit A as evidence that his former employer was not trustworthy and ought not to have been believed on this crucial issue.
The applicant conceded that he had not put the timesheets which he has now submitted, and which form part of Exhibit A, before the Tribunal. He said that he was unable to access these documents at the time as he had been put into detention following the cancellation of his visa and had not been able to access them prior to his Tribunal hearing. The applicant also said that he had told the Tribunal that he had worked for his former employer in December 2018, and had also provided evidence in the form of a statement from a customer who attested to the fact that he had worked for his former employer on 17 December 2018.
Putting his case at its highest, the applicant essentially submitted that the Tribunal’s decision to accept the evidence of his former employer, in circumstances where it is now clear that his former employer had not met his legal obligations in relation to pay and superannuation entitlements, was illogical, irrational or unreasonable.
The applicant made no further submissions in relation to the other grounds of review set out in his initiating application.
First respondent’s submissions
In response, it was submitted that whilst the Minister accepts that the time sheets which form part of Exhibit A make reference to the applicant working in December 2018, those documents are not relevant to the task before this court and therefore cannot be relied upon. It is submitted for the Minister that there is no evidence that these documents were before the Tribunal when it made its decision, nor that the applicant sought additional time to put these documents before the Tribunal. It is therefore submitted that these documents are not relevant to the court’s judicial review of the Tribunal’s statutory task under Part 5 of the Act.
There is much force to this submission. The court’s role in this proceeding is not to review the merits of the decision to cancel the applicant’s visa. Rather, it is to determine whether the Tribunal’s decision to affirm the delegate’s decision to cancel the applicant’s visa was affected by a jurisdictional error.
GROUNDS OF REVIEW
In his initiating application, the applicant raised 11 grounds of review.
Grounds 1 and 11
Ground 1 seeks an order that the Tribunal’s decision be quashed and does not raise any proper ground of review. Similarly, ground 11 seeks an order from the court for legal representation. It too does not raise any proper ground of review.
Ground 6
Ground 6 asserts that the Tribunal failed to afford the applicant procedural fairness. No particulars have been given in support of this ground.
In any event, whilst it is true that the applicant initially sought an adjournment of the hearing before the Tribunal which was not granted, the hearing was ultimately delayed by one week. The applicant has not set out with any particularity what conduct of the Tribunal constitutes the denial of procedural fairness. In circumstances where the applicant sought additional time for the hearing, the hearing was delayed by one week, and the applicant was provided with additional time after the hearing to provide any further material relevant to his matter, the refusal to grant an adjournment does not constitute a denial of procedural fairness.
Moreover, at paragraphs [12] to [18] of its decision record, the Tribunal highlighted that various adverse information was provided to the applicant, which he was invited to comment upon.[24] At paragraph [19], the Tribunal noted that the applicant was asked if he required any additional time to respond to those matters under section 359AA of the Act, and the Tribunal record indicates that he declined that opportunity and indicated that he wished to proceed.[25]
[24] Court book pages 158 to 159.
[25] Court book page 159.
In all of those circumstances, ground 6 is not made out.
Grounds 7 to 10
Ground 7 simply says that the Tribunal’s decision involved an error of law. Ground 8 states that the application ought to be considered according to law. There is nothing in the Tribunal’s reasons which indicate that the Tribunal misunderstood its statutory task. Without particularising what the alleged errors or law are, these grounds are not made out.
Ground 9 states that the Tribunal ‘put more weight on irrelevant consideration and facts in cancellation the visa without properly considering the facts which put more weight in my favour than on relevant facts’. This ground seeks impermissible merits review. To the extent that this ground relates to the Tribunal’s reasoning in relation to its findings as to the applicant’s period of employment with his former employer, this is discussed in detail below. For the reasons which follow, the Tribunal’s findings were open on the evidence before it. Ground 9 is therefore not made out.
Ground 10 claims that the Tribunal was ‘biased’ and ‘based on one sided consideration’. An allegation of bias is a serious matter which must be directly made and clearly established. There is no evidence of bias in this matter, nor has the applicant clearly articulated whether he complains of actual or apprehended bias. While the applicant clearly disagrees with the Tribunal’s decision, there is no evidence that the Tribunal prejudged the outcome in this matter nor is there any basis upon which a finding of apprehended bias could be made out. In relation to any suggestion of apprehended bias, I accept the submissions made by the Minister in this regard.[26] For each of these reasons, ground 10 is not made out.
[26] Outline of Submissions filed by the First Respondent on 10 January 2022 at paragraph [20].
Grounds 2, 3, 4 and 5
Grounds 2 claims that the Tribunal’s decision was unreasonable. Grounds 3 and 4 are interrelated in so far as they claim that the Tribunal either failed to take into account relevant considerations or took into account irrelevant considerations. Ground 5 claims that there was insufficient evidence or no evidence to support various findings made by the Tribunal. I will address each of these grounds in more detail below.
The applicant’s submissions before me in these proceedings relate largely to his complaint about the conclusion reached by the Tribunal that his employment came to an end in September 2018 and not in December 2018. This concern relates at its broadest to grounds 3 and 4. As noted in my reasons for decision in relation to the application for an extension of time,[27] read at their highest, those grounds essentially take issue with the Tribunal’s reliance on information provided by his former employer about the period of his employment, and consequently whether he complied with his visa conditions.
[27] Guggal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1852 [27].
Arguably, these concerns could also relate to grounds 2 and 5 in so far as the applicant alleges that the Tribunal’s reasoning which led it to conclude that the applicant’s employment came to an end in September 2018 was unreasonable (ground 2) or was not based on sufficient evidence (ground 5).
In response to this aspect of the applicant’s application, counsel for the Minister puts forward two responses.
First, it is submitted that the evidence that the applicant now has submitted, regarding his former employer’s apparent failure to make superannuation contributions on his behalf and his former employer’s subsequent liquidation, was not before the Tribunal. However, the Tribunal did have before it evidence of a dispute between the applicant and his former employer and preferred the evidence of the former employer over that of the applicant. That finding was open to the Tribunal on the basis of the information before it at the time.
In any event, and secondly, the Tribunal did not rely solely on the employer’s evidence in concluding that the applicant’s employment had come to an end in September 2018 and not in December 2018. At paragraph [30] of the Tribunal’s reasons for decision, the Tribunal explained its reasoning in concluding that the applicant’s employment with his former employer had come to an end in September 2018 and not in December 2018 as later claimed.[28]
[28] Court book page 161.
In essence, it is apparent from its reasons that the Tribunal formed the view that the applicant’s employment had ceased in September 2018. This conclusion was reasonably open to the Tribunal on the basis of:
·the applicant’s own evidence;
·the apparent shift in the applicant’s evidence during the hearing after the Tribunal explained the 90 day time frame;
·correspondence from the applicant’s solicitor which referred to the applicant’s employment coming to an end in September 2018; and
·the information provided by the applicant’s former employer, which was also consistent both with the applicant’s initial evidence as well as correspondence from his lawyer.
In relation to the applicant’s own evidence, the Tribunal referred to the fact that in the hearing before it, the applicant initially gave evidence that his employment had come to an end in September 2018 and that it was only after the Tribunal had explained the requirements of condition 8107 of his subclass 457 visa that the applicant said that he had actually worked for his former employer in December 2018. Further, the applicant himself did not identify the fact that he had worked for the sponsor in December 2018 until his written submissions and supporting statements provided at the Tribunal hearing on 6 May 2019.
The Tribunal also had before it a claim by the applicant’s employment lawyer that he was seeking unpaid wages for the period up to September 2018. There is no mention of any claim in respect of work performed in December 2018.
To the extent that the applicant’s concerns can be characterised as a claim of illogicality or irrationality, the applicant would need to establish that the Tribunal formed a view that no rational or logical decision maker could have arrived at on the same evidence.
In Minister for Immigration v SZMDS [2010] 240 CLR 611, the High Court had to consider the circumstances in which a decision could be impugned because of a jurisdictional error on the grounds of illogicality or irrationality. In that case, which concerned an application for review of a decision not to grant a protection visa, Crennan and Bell JJ said at [130] – [131]:
[130]In the context of the Tribunal's decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131]…If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In relation to ground 2, it is submitted for the first respondent that no jurisdictional error on the grounds of illogicality or irrationality or unreasonableness is made out in this case. There is much force to this submission.
Similarly, it is submitted that the applicant’s claim in ground 5 that there was insufficient evidence on which to base the Tribunal’s decision cannot be made out. Again, there is much force to this submission.
I accept that the Tribunal’s decision was clearly open to it on the basis of the evidence before it. When one considers the material before the Tribunal in its totality, it cannot, in my view, be said that there is illogicality or irrationality in the Tribunal’s determination of the date on which the applicant’s employment with the sponsor came to an end. Nor can it be said that the Tribunal’s decision was unreasonable or lacked probative evidence. The Tribunal had before it conflicting evidence as to the date on which the applicant’s employment with the respondent came to an end and its resolution of that conflict was available to it on the evidence before it.
For each of these reasons, and accepting that a different decision maker may have come to a different conclusion, the decision made by the Tribunal was open to it on the evidence and was not illogical, irrational or unreasonable. Rather, it had a logical and intelligible justification.
As noted, the applicant provided to the court various pay slips which he said evidence that he performed work for his former employer in December 2018. Those documents were not before the Tribunal. I therefore accept the first respondent’s submissions that they are not relevant to the determination of whether or not the Tribunal’s decision was affected by jurisdictional error.
CONCLUSION
For each of these reasons, the applicant’s application should be dismissed with costs. I make the orders set out at the commencement of these written reasons.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Dated: 18 February 2022
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