Horvath v Minister for Immigration

[2015] FCCA 2070

FEDERAL CIRCUIT COURT OF AUSTRALIA

HORVATH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2070

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Subclass 457 (Temporary Work (Skilled)) visa – cancellation on the grounds that the nominated occupation is not genuine – procedural fairness – whether the Tribunal asked itself the correct question – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(g), 140M, 359A, 476

Applicant: TAMAS HORVATH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1059 of 2015

Judgment of: Judge Street

Hearing date: 31 July 2015

Date of Last Submission: 31 July 2015

Delivered at: Sydney

Delivered on: 31 July 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents:

Ms A Wong

DLA Piper

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $7700.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1059 of 2015

TAMAS HORVATH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ in the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 19 March 2015 affirming the decision to cancel the applicant’s subclass 457 temporary work skilled visa. The delegate cancelled the visa under s.116(1)(g) of the Act and reg.2.43(1)(kb) of the Migration Regulations 1994 on the basis at the time of the grant of the visa, the position associated with the nominated occupation was not genuine.  The grounds of the application are as follows:

   1. Tribunal member identified wrong issues.

   2. Tribunal member asked wrong questions.

   3. Tribunal member failed to consider relevant mat.

   4. Tribunal member relied on irrelevant materials.

2. The Tribunal noted that the issue before it was whether the ground for cancellation had been made out and, if so, whether the visa should be cancelled. The Tribunal also identified that it would consider whether the ground for cancellation had been made out on the basis that the applicant’s sponsor had been cancelled and barred under s.140M of the Act. The Tribunal noted that the applicant appeared before the Tribunal on 13 March 2015 to give evidence and present arguments.

3. The Tribunal carefully identified the history in relation to the grant of the subclass 457 visa on 30 July 2013 on the basis of being sponsored by the standard business sponsor Tamashorvath Pty Ltd in respect of which the applicant was the sole director and employee.  On 1 December 2014, the Department cancelled the approval of that company and barred it as a sponsor for five years.  No review of that decision was sought.  In a statutory declaration dated 28 October 2014, the applicant stated that the sponsor’s main activities involved consulting on residential and commercial construction projects and specialising in the development of child care facilities.

4. The Tribunal identified that the sponsor’s first and only client was Himot Pty Ltd which was a company, again, in respect of which the applicant was the sole director and owner. The Tribunal set out the change in the business of the sponsor and the role performed by the applicant. The Tribunal noted a statement dated 12 November 2014 by the applicant in relation to the absence of full-time employees. On 9 February 2015, the Tribunal sent the applicant an invitation under s.359A to comment on the fact that the Department had cancelled the approval of the sponsor Tamashorvath on 1 September 2014 and that no review had been sought of that decision.

5. On 23 February 2015, the applicant provided comments identifying certain intentions and income issues.  Relevantly, at the hearing, the Tribunal notes the applicant agreed that Tamashorvath’s approval as the standard business sponsor had been cancelled and that the company had been barred as a sponsor for five years and that that decision had not been appealed.  The applicant referred to the lodging of an applicant as business sponsor by the company Himot of which he was the sole director and employee identifying that he transferred the directorship to his fiancée.

6. The Tribunal noted at the hearing that it had purported to comply with s.359AA in giving the applicant clear particulars of the information that may be the reason or part of the reason for affirming the decision, and that the applicant was invited to comment or respond to the information, and that the Tribunal advised the applicant he may seek additional time to comment or respond to the information. The relevant information was identified by the Tribunal as being the application made by Himot for approval of a standard business sponsor that had been refused by the Tribunal on 4 December 2014. It was explained how that information would be relevant to affirming the decision in para.21 as follows:

   21. The applicant commented that he was not aware of the refusal. He does not understand why the sponsorship application had been refused as Himot is a genuine company. It maybe because the company was connected to him. He did not want additional time to comment on or respond to the information.

7. The Tribunal then proceeded to consider whether the grant of cancellation existed and relevantly turned to whether the requirements of r.2.43(1)(l)(iv) were the subject of compliance and relevantly found:

   31. The Tribunal finds that on 1 September 2014, the Department cancelled the approval of Tamas Horvath as an approved business sponsor. The applicant did not dispute this at the hearing. The Tribunal is therefore satisfied that a ground for cancellation arises under r.2.43(1)(l)(iv) as the applicant’s sponsor has been cancelled under s.140M of the Act.

   32. The Tribunal therefore finds that a prescribed ground exists for cancelling the visa under s.116(1)(g) of the Act. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

8. It was in those circumstances that the Tribunal turned to the issue of discretion. In relation to the issue of discretion, the Tribunal again raised the fact that it put to the applicant under s.359AA that the application made by Himot for approval as a business sponsor was refused on 4 December 2014. The Tribunal noted:

   35. The Tribunal has considered the applicant’s claim that Mr Rao Akula is willing to sponsor him, but he has provided no direct evidence from Mr Akula to support this claim. The applicant has only provided a few emails between himself and Mr Akula about unrelated matters. No sponsorship application has been lodged and the applicant told the Tribunal that no steps had been take to prepare a sponsorship application. The applicant’s own evidence about the claimed position was very vague. The Tribunal cannot be satisfied that he has a current proposed business sponsor.

9. The Tribunal found relevantly:

   36. … The Tribunal finds that this purpose no longer exists in relation to the applicant.

   …

   41. During the review, the applicant claimed several times that he was not responsible for the breach of sponsorship obligations. He claims he received poor advice from his lawyers. The Tribunal does not accept this explanation. As the sole director and employee of the sponsoring company, the applicant had responsibility for ensuing that the sponsor met its sponsorship obligations. The Tribunal finds that the applicant has contributed to the ground for cancellation through his own actions.

   …

   43. The Tribunal does not accept that the applicant has been cooperative and forthcoming with the Tribunal or the Department. The applicant made no attempts to contact the Department to lodge a new nomination after the nature of his position with the sponsoring company changed. He has not accepted responsibility for the breach of sponsorship obligations. He provided misleading evidence to the Tribunal, stating that there was no term in the employment agreement to pay himself a fortnightly salary when this term was clearly specified. If the visa was not cancelled, the Tribunal cannot be satisfied that the applicant would continue to comply with visa requirements and conditions, given his past adverse history as a sponsor.

   …

   45. The applicant claims that he would suffer hardship as he sold his assets and put his money into the Oxford Childcare Centre that was going to be managed by Himot. The Tribunal does not accept that this is a reason to exercise the discretion in the applicant’s favour and gives this factor limited weight. It was the applicant’s choice to invest his money in this way. As stated above, the sponsorship application by Himot was refused. Even if the applicant’s Subclass 457 visa was not cancelled he would not be able to work for Himot to run the child care centre as Himot is not an approved business sponsor. The Tribunal does not accept that another person or business would not be able to take over the management of the Oxford Childcare Centre.

   46. The Tribunal does not accept that the applicant would not be able to re-establish himself in Hungary if he had to return there. His mother lives in Hungary and he could live with her. He has two young children in Hungary. On his own evidence he has several years of skills and experience in construction and project management and the Tribunal considers that he would be able to find suitable employment if he returned to Hungary.

   …

   51. The Tribunal has considered and weighed all of the relevant circumstances of the case. The Tribunal has considered the fact that the applicant has invested a considerable amount of money in obtaining development approval to operate a child care centre. However, the Tribunal is satisfied that this consideration is outweighed by the fact that the original purpose of the applicant’s travel to and stay in Australia no longer exists. He has been unable to secure a new sponsorship. Even if the applicant’s Subclass 457 were not cancelled, the applicant would be unable to continue to meet the requirements for a 457 visa, given that he does not have a sponsor and an approved business nomination.

   52. In addition, the Tribunal has found that the applicant contributed to the ground for cancellation. As the sole director and employee of the sponsoring company, the applicant had responsibility for ensuing that the sponsor met its sponsorship obligations, which he failed to do. He has not accepted responsibility for the breach of sponsorship obligations and he has not been cooperative with the Department or the Tribunal. The Tribunal cannot be satisfied that the applicant would continue to comply with visa requirements and conditions if his visa was not cancelled, given his past history as a sponsor. The Tribunal has not accepted that cancellation of the visa would cause him hardship, given that he has limited ties in Australia.

   53. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

10. The applicant contended that the Tribunal had addressed the wrong issues as identified in ground 1, and this was expanded in the affidavit dated 17 May 2015 in relation to whether the position of general manager was genuine, and it was said that the Tribunal asked the wrong issues about new sponsors, and there was an alleged inconsistency about the lodging of sponsorship application by reason of the sponsor being prohibited for three years.

11. There is no substance in relation to ground 1. It is clear the Tribunal identified the correct issue in relation to s.116(1)(g) and the finding made in paras.31 and 32 above was clearly open. Indeed, it is clear that the applicant acknowledged that the sponsorship had been cancelled. It was in those circumstances that the Tribunal turned to the issue of discretion, and, again, there is no substance in the assertion that it asked itself the wrong question. Ground 1 is not made out and discloses no jurisdictional error.

12. In relation to ground 2, it is alleged that the Tribunal asked itself the wrong questions.  This in substance is a broad allegation without particulars and fails to disclose any jurisdictional error.  In relation to ground 3 that the Tribunal failed to take into account relevant matters, the affidavit of the applicant of 17 April 2015 purported to expand upon that unparticularised ground.  The matters raised in the affidavit in support of ground 3 are, in essence, an impermissible challenge to the findings of fact made by the Tribunal and did not identify any basis upon which there is jurisdictional error.  Ground 3 fails to make out any jurisdictional error.

13. In relation to ground 4, the affidavit dated 17 April 2014 purported to expand on the unparticularised allegation in respect of an alleged failure by taking into account irrelevant material.  There was nothing identified in the affidavit that constitutes any jurisdictional error by the Tribunal as alleged in ground 4.  Ground 4 fails to make out any jurisdictional error.

14. In the course of submissions, the applicant alleged that at the time of the hearing on 19 May 2015, he was not aware of the decision refusing the applicant for approval of a business sponsor by Himot.  That proposition was inconsistent with paras.34 and 35 of the reasons of the Tribunal.  The applicant also submitted that at the end of the hearing, the Tribunal member indicated that the applicant would have a further two weeks to provide submissions, whereas in fact the Tribunal delivered its reasons six days after the hearing.

15. There is no evidence to support the applicant’s assertion from the bar table.  The assertion is inconsistent with the clear identification in para.21 of an opportunity being provided to the applicant to put on additional material in relation to the refusal of Himot as the sponsor which the applicant declined.  The first respondent submitted that there is no evidence to support any denial of procedural fairness and that the reasoning of the Tribunal identified in a detailed fashion what occurred at the Tribunal hearing and that the unsupported assertion by the applicant was contrary both to the carefully identified summary of what occurred at the hearing as well as being inconsistent with para.21 of the Tribunal’s reasons.

16. I accept that first respondent’s submission that the applicant has not established any denial of procedural fairness, and I do not accept in light of para.21 that there was an opportunity provided by the Tribunal that the applicant was deprived of by reason of the delivery of the decision six days later.  The applicant also identified in the four affidavits put on the discovery after the Tribunal decision that correspondence was sent to the wrong email address in respect of the sponsorship by Himot Pty Ltd.  That material was not material that was before by the Tribunal and cannot establish any error in the conduct of the review by the Tribunal.

17. However, it is clear that at the time of the hearing, the refusal of the sponsorship of Himot Pty Limited was raised by the Tribunal with the applicant, and the applicant was given an opportunity to seek an adjournment or to put on further material in that regard and declined.  The affidavits of the applicant purporting to address the issue of the erroneous email communication were admitted subject to relevance. 

18. Having heard the applicant’s arguments, I reject the material that was admitted subject to relevance, on the grounds of being irrelevant.  The application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 6 August 2015