Heir v Minister for Immigration - [2020] FCCA 1598

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEIR & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1598

Catchwords:
MIGRATION – 457 Visa – allegation of fraud – employer nomination withdrawn – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.140ZH, 359A, 359AA, 368D, 379, 476

Migration Regulations 1994 (Cth) cl.187.223

Cases cited:

First Applicant:

PAWANJEET KAUR HEIR

Second Applicant:

RAJINDER SINGH HEIR

Third Applicant:

SURKHAB SINGH HEIR

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2476 of 2016

Judgment of:

Judge C. E. Kirton QC

Hearing date:

13 February 2019

Date of Last Submission:

20 February 2019

Delivered at:

Melbourne

Delivered on:

18 June 2020

REPRESENTATION

The First, Second and Third Applicants appeared in person

Counsel for the First Respondent:

Mr C M McDermott

Solicitors for the First Respondent:

Clayton Utz

The Second Respondent:

Submitting appearance, save as to costss

ORDERS

Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth) the name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Application filed on 14 November 2016 be dismissed.
The First and Second Applicants pay the First Respondent’s costs fixed in the amount of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2476 of 2016

PAWANJEET KAUR HEIR

First Applicant

RAJINDER SINGH HEIR

Second Applicant

SURKHAB SINGH HEIR

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicants seek judicial review of a decision of the Second Respondent (Tribunal), dated 11 October 2016. The Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (Delegate) to refuse to grant the Applicants Regional Employer Nomination (Permanent) Subclass 187 visas (Visa).
Both the Delegate and the Tribunal found that the Applicants…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 1598
Decision Date: 18 June 2020

CaseChat Overview and Summary

This case concerned a judicial review application brought by the Applicants against the Minister for Immigration. The dispute arose from the refusal of the Applicants' visa application, specifically a subclass 457 visa, following the withdrawal of their employer's nomination. The matter was heard by Judge C. E. Kirton QC in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the Delegate's decision to refuse the visa application, and the subsequent affirmation of that decision by the Administrative Appeals Tribunal, constituted a jurisdictional error. This involved examining whether the Applicants were afforded procedural fairness and whether the Tribunal's findings were supported by the evidence, particularly in light of allegations of fraud and misleading conduct by migration agents and the employer.

The Court's reasoning focused on the fact that the Applicants' employer had withdrawn the nomination, which was a prerequisite for the visa application to be approved. The Applicants had received an invitation to comment from the Department, which clearly stated that without the nomination, the visa application could not be approved. The First Applicant acknowledged understanding this, as well as the options available, including withdrawing the application or having it refused, and the implications of each. Despite having access to advice from a migration agent and understanding that the nomination was withdrawn and crucial for their application, the Applicants did not withdraw their application. The Tribunal found that the Applicants did not meet the criteria for the visa because they did not have an approved nomination at the time of the decision. The Court found no jurisdictional error in the Tribunal's decision.

The application for judicial review was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

At the Tribunal Hearing on 11 October 2016, the Tribunal made an oral decision affirming the Delegate’s Decision to refuse to grant the Applicants the Visas[22] (Tribunal’s Decision). The Tribunal gave a written record of its decision on 30 November 2016[23]. [22] CB 279.[23] CB 289-290. The reason for the Tribunal’s Decision in substance constituted the following, at [3]: Based on the evidence before me, including the oral evidence received today, I’m not satisfied that you meet the criteria in regulation 187.223 because, according to your own evidence, you do not have an approved nomination at the time of my decision. For that reason, I am affirming the decision made by the Department of Immigration on 11 February 2016. The Applicants commenced proceedings for judicial review on 14 November 2016. During the judicial review proceedings in this Court, the Applicants have been without legal representation. By Orders of a Registrar of this Court, dated 10 May 2017, the Applicants were given the opportunity to file an amended application and written submissions. Despite this, the Applicants have filed no further material. The Application contains ten grounds of review, the particulars of which cover some four pages. Each ground of review is set out below where the relevant ground is specifically considered. At the hearing both the First Applicant and the Second Applicant gave evidence and were cross-examined by Counsel for the Minister. In addition to the materials in the Court Book, the Minister’s Written Submissions and the submissions made by Counsel for the Minister at the hearing, the Court has reviewed in detail the transcript of hearing that took place in this Court (Transcript). The First Applicant gave evidence that she received a 457 visa in 2013 and that she worked for Mr Kieran Pi Paterk at Fusion India for two and a half years. The Applicants then lodged a permanent residency application. Their migration agent was the First Migration Agent. On 15 August 2015 she suffered from a ruptured appendix and was then in hospital for two weeks[24].[24] Transcript P12:Ll5-27. When cross-examined by Counsel for the Minister, the First Applicant:a)Said she had hired the Second Migration Agent to assist her with her appearance before the Tribunal[25]. [25] Transcript P14:L1.b)Said that the Second Migration Agent prepared a written submission on her behalf for the Tribunal. The submission was prepared on the basis of the information the First Applicant told the Second Migration Agent. The information given by the First Applicant for the submission was truthful, complete and accurate. The First Applicant did not otherwise rely upon any other documents that she herself had written for the Tribunal Hearing[26]. [26] Transcript P14:L3-35.c)Agreed that the Applicants had the benefit of being advised by the Second Migration Agent in relation to their visa status, prior to the Second Migration Agent’s 31 October 2015 Email being sent[27].[27] Transcript P15: L43-P16:L1.d)Agreed that she had received the Invitation to Comment. The First Applicant agreed that at the time the Invitation to Comment was received she:[28] [28] Transcript P16: L3-P18:L20.i)Understood that the nomination from her employer was withdrawn;ii)Had access to advice from the Second Migration Agent about what to do in relation to the Invitation to Comment; iii)Understood that without the nomination the Visa Application could not succeed and that the Visa could not be granted;iv)Understood that in limited circumstances if the Visa Application was withdrawn and did not proceed, the Visa Application fee could be refunded;v)Understood that the Visa Application did not have to proceed, if the Applicants advised the Department that they no longer wanted the Visa Application processed; vi)Knew she had a choice about withdrawing the Visa Application or letting it be processed and was told this in December 2015; andvii)Understood that if she withdrew the Visa Application she still held a subclass 457 visa which was valid until 15 May 2016 and that she could potentially apply for another visa whilst still in Australia. e)Agreed that during the period after receiving the Invitation to Comment and prior to the Delegate’s Decision[29]:i)She did not tell the Department that she wanted to withdraw the Visa Application; andii)She had the benefit of the Second Migration Agent advising her.f)Agreed that she did not know whether the First Migration Agent knew about “what was going on in Fusion India”[30].g)Agreed that she did not ask the First Migration Agent whether the Department was monitoring her employer[31]. h)Confirmed that there was nothing in the Visa Application that was false or untrue[32].[29] Transcript P18:L24-29.[30] Transcript P18:L37-38; P19:L4.[31] Transcript P19:L4-14.[32] Transcript P19: L16-17.

Ratio Decidendi

Legal Principle Established

On 31 October 2015, Mark Glazbrook of Migration Solutions (Second Migration Agent), acting on behalf of the Applicants, sent an email to Sue Lawrie, copied to the Honourable Christopher Pyne MP concerning the Applicants (Second Migration Agent’s 31 October 2015 Email)[8]. This email included the following in relation to the First Applicant:[9][8] CB 269-271.[9] CB 270.From my discussions with the 457 dependent visa holder yesterday it appears that the business owner;·Encouraged and took a payment of $30,000.00 in return for employing the visa applicant and nominating her for a 457 visa.·Encouraged and took a further payment of $20,000.00 to commence an employer nominated visa.·Made the visa holder pay for the 457 visa application, including the nomination. ·Made the visa holder pay training benchmark A on behalf of the business.·Made the visa holder pay migration agents costs associated with Department monitoring.·Made the visa holder work 7 days per week, 10 hours per day. ·Did not pay the visa holder, accept for the first month of employment.·Made the visa holder pay money to the business owner for GST, WorkCover and Tax payments.·Did not pay any superannuation to the visa holder.·Made the visa holder work when she was gravely ill and would not give her time off to get medical treatment which resulted in her appendix bursting which has now resulted in serious ongoing health issues. (Without alteration) The Second Migration Agent’s 31 October 2015 Email also included the following:[10]The employer’s migration agent also encouraged the family to apply for permanent residency even knowing that the business was being monitored. A registered migration agent would know that the Department will not assess any new 457 or employer nominated visa until monitoring has been finalised by the Department. I believe that the agent encouraged and coerced the family to apply for a permanent visa for financial gain. The cost of the permanent visa application to the family was $11,800.00, this application will be refused and all costs paid lost.[10] CB 270. On 31 December 2015, a Senior Case Manager at the Department sent a letter to the First Migration Agent inviting the First Applicant to comment on information concerning the Visa Application (Invitation to Comment). The Invitation to Comment included the following[11]:[11] CB 111-112.Nomination was withdrawn The nomination submitted to the department by FUSION INDIA PTY LTD ATF FUSION INDIA listing you as their Nominee has been withdrawn. Unfortunately this means that your visa application cannot be approved. There are two options you can now take in relation to this decision:1. Withdrawing your applicationAs there is no possibility of your application being approved you may wish to withdraw your application, if so you must advise the department in writing. By withdrawing your application you give up any rights to apply for a merits review at the Administrative Appeals Tribunal. A request for a refund can be submitted but will only be granted in very limited circumstances.2. Refusal of applicationIf you do not respond to this letter within 28 days and the application has not been withdrawn then the application will be refused. If your application is refused you are entitled to apply for a merits review of this decision with the Administrative Appeals Tribunal. A request for a refund will not be approved.Outcome should you choose to withdraw your applicationYou and your dependents currently hold a Temporary Work (Skilled) (subclass 457) visa which is valid until 15 May 2016.Should you choose to withdraw your application you will remain lawfully in Australia until the expiry of this visa. You may be able to lodge further visa applications within Australia during this time. It is not possible to reconsider an application once it has been withdrawn. Should you wish to withdraw this application you will not be entitled to seek a merits review at the Administrative Appeals Tribunal.Timeframe for responseYou must respond to this invitation to comment within 28 days after you are taken to have received this letter. You should provide your response in writing.