Kaur v Minister for Immigration

[2018] FCCA 1377

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1377

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the findings of the Administrative Appeals Tribunal were open to it – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.474

Minister for Immigration and Border Protection, Procedural Advice Manual 3

Cases Cited:

Minister for Aboriginal Affairs V. Peko-Wallsend Ltd. (1986) 162 CLR 24

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

First Applicant: RAMINDER PAL KAUR

Second Applicant: KANWALJIT SINGH

Third Applicant: PRABHNOOR SINGH

Fourth Applicant: DIVNOOR KAUR

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 476 of 2017

Judgment of: Judge Emmett

Hearing date: 28 May 2018

Date of Last Submission: 28 May 2018

Delivered at: Sydney

Delivered on: 28 May 2018

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter in the Punjabi language.

Counsel for the Respondents: Mr Martin Smith

Solicitors for the Respondents: Sparke Helmore

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 476 of 2017

RAMINDER PAL KAUR

First Applicant

KANWALJIT SINGH

Second Applicant

PRABHNOOR SINGH

Third Applicant

DIVNOOR KAUR

Fourth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 18 January 2017 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent made on 30 September 2016 refusing the applicants a Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457) visa. The first named applicant (“the Applicant”) is the primary applicant. The second, third and fourth named applicants depend on the Applicant’s visa on the basis of being members of her family unit.

2. In 2008, the Applicant arrived in Australia on a student visa.

3. The background of this matter and the Tribunal decision are accurately summarised in the written submissions of the first respondent as follows:

   “Background

   On 26 April 2016, the Department received written notification from the applicant’s sponsor that the applicant had ceased employment with them effective 7 March 2016. 

   By email transmitted on 6 September 2016, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of her subclass 457 visa (Court Book (CB) 4-9). The applicant’s representative responded by email on 19 September 2016 (CB 16-30).

   On 30 September 2016, the delegate cancelled the applicant’s visa under s.116 of the Act on the basis that the applicant had breached condition 8107(3)(b) of condition 8107 of her visa (see Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations)) as she had ceased employment for a period exceeding 90 consecutive days (CB 32-49).

   On 5 October 2016, the applicant applied to the Tribunal for review of the delegate’s decision.  On 21 December 2016, the applicants appeared before the Tribunal to give evidence and present arguments. The Tribunal received oral evidence from both the applicant and her husband. The applicants were represented by a migration agent at the hearing (CB 63-65).

   Tribunal decision

   The Tribunal found that it had no jurisdiction with respect to the second, third and fourth applicants (CB 88, [3]). We consider this finding to be correct. Pursuant to s.140(1) of the Act, the cancellation of visas of the other applicants was automatic. No decision was involved, and thus the Tribunal has no jurisdiction.  

   The Tribunal considered whether the power to cancel under s.116(1)(b) of the Act was enlivened (CB88, [7]). Relevantly, the Minister may cancel a visa if satisfied that “its holder has not complied with a condition of the visa.” The Tribunal went on to consider the terms of condition 8107, attached to the applicant’s subclass 475 visa (CB 88, [8]). In particular, condition 8107(3)(b) provided that:

   “(3)  If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

   …

   (b)  if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days…”

   The applicant agreed that her employment with the sponsor had ceased and that she had not complied with condition 8107 (CB 88-89, [9] - [11]). The Tribunal found that the power to cancel the visa under s.116(1)(b) was enlivened (CB 89, [12]).

   In considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal considered the following claims made by the applicant and her husband:

   The sponsor (who owned 48% of the business) put pressure on the applicant and her husband to transfer two shares to him and threatened to cancel the nomination if they did not (CB 89, [16] and CB 90, [21], [23]).

   The sponsor threatened the applicant (CB 89, [16]) and punched her husband; they made complaints to ASIC and the police (CB 89, [17] and CB 90, [25]).

   The applicant’s children were at school in Australia (CB 89, [19]).

   Following the hearing, on 10 and 11 January 2017, the applicant provided further documents to the Tribunal (CB 67-82). The Tribunal accepted that the applicant and her husband had lodged complaints about the behaviour of the sponsor, but found that the applicant did not need a subclass 457 visa to continue to pursue those claims (CB 90, [30]).

   The Tribunal found that the purpose of the applicant’s subclass 457 visa (temporary employment) had ended and therefore gave little weight to the applicant’s stated purpose to stay permanently in Australia (CB 90, [33]).

   The Tribunal gave some weight to the information before it which indicated that the applicant had been cooperative with the Department (CB 91, [35]).

   The Tribunal placed little weight on the hardship to the applicant and her family in having to return to India (CB 91, [36]).

   The Tribunal considered the applicant’s claims that the grounds for cancellation arose out of a dispute between the applicant and the sponsor. The Tribunal considered that at some level, the applicant had participated in improper activity to try to secure a nomination (transferring 2% of the business partnership to the sponsor), and noted that this impacted on the integrity of the migration program. As the circumstances arose over ten months ago and the complaints were being followed up by the police and ASIC, the Tribunal gave this little weight (CB 91, [37]).

   The Tribunal considered that there was nothing before it to indicate that the applicant would be in any danger if she returned to India with her family (CB 91, [39]).

   The Tribunal found that the applicant would be able to apply for a bridging visa (while she awaits the outcome of her pending subclass 186 visa application), which would enable her to pursue her complaints (CB 90, [30] and CB 91, [41]).

   On the basis of these cumulative reasons, the Tribunal found that the discretion to cancel the visa should be exercised and accordingly affirmed the decision under review (CB 91, [42]-[43]).”

The proceeding before this Court

1. The applicant was unrepresented at the hearing before this Court, although had the assistance of a Punjabi interpreter.    

2. On 15 March 2017, orders were made in chambers by consent and singed by the applicants’ then legal representative. The Applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

3. On 23 November 2017, the applicants’ legal representative filed a Notice of Intention to Withdraw as Lawyer and a Notice of Withdrawal as Lawyer

4. At the commencement of today’s hearing, the Applicant confirmed that she has not filed any Amended Application, evidence or submissions in support of the application.

5. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

6. The Applicant had various documents that she told the Court were not documents given by her to the Tribunal. I explained to the Applicant that it could not be an error for the Tribunal not to consider documents that she did not give it. However, as the Applicant was not represented, I asked counsel for the first respondent, Mr Martin Smith, to confirm whether the documents she wished to hand up were relevant. Mr Smith confirmed that they appeared either to be documents that were already contained in the court book, filed on 13 April 2017 and marked Exhibit 1R, or were otherwise documents not provided to the Tribunal. Mr Smith informed the Court that if the documents were tendered they would be objected to on the grounds of relevance. The Applicant informed the Court that she no longer wished to give the documents to the Court.

7. The Applicant confirmed that she relied on the grounds contained in the Application filed on 17 March 2018, as follows:

   “The Administrative Appeals Tribunal made an error of law in finding at paragraph 37 of reasons for decision dated 18 January 2017, that “At some level the applicant has participated in the improper activity to try to secure a nomination. This impacts on the integrity of the migration programme”, in:

   a. Making a conclusion not based on evidence;

   b. Taking an irrelevant consideration into account.

   2. The Administrative Appeals Tribunal made an error of law in finding at paragraph 36 of reasons for decision dated 18 January 2017, that “The Tribunal places little weight on hardship to the dependants and applicant by having to return to India”, in:

   a. Making a conclusion that should not have been made, given all the evidence before the Tribunal;

   b. Failing to consider all the evidence put before the Tribunal regarding the circumstances of the applicant and dependants.

   3. The Administrative Appeals Tribunal made an error of law in finding at paragraph 37 of reasons for decision dated 18 January 2017, that “Complaints have been made to the police and ASIC. It does not appear that any complaint has been made to Fair Work Commission or the union. As the circumstances arose over ten months ago and complaints are being followed up the Tribunal gives this little weight”, in:

   a. Making a conclusion that should not have been made, the fact that events happened over ten months ago is not a basis for finding at law that the Tribunal gives little weight to such a consideration;

   b. Failing to consider the complaints that were made, properly or at all.”

8. Each of the grounds was interpreted for the Applicant and the Applicant was invited to say whatever she wished in support of each of the grounds and in support of the Application generally.

Ground 1

1. Ground 1 takes issue with a statement made by the Tribunal in its reasons that, “At some level the applicant has participated in the improper activity to try to secure a nomination. This impacts on the integrity of the migration program.”

2. The context of that statement is as follows:

   37. The applicant claims the grounds for cancellation arose out of a dispute between the applicant and the part owner of the business. She alleges that money was demanded and there were other illegal activities including a claim 2% of the business partnership was transferred to the sponsor for the nomination to continue. At some level the applicant has participated in the improper activity to try to secure a nomination. This impacts on the integrity of the migration programme. Complaints have been made to the police and ASIC. It does not appear that any complaint has been made to Fair Work Commission or the union. As the circumstances arose over ten months ago and complaints are being followed up the Tribunal gives this little weight.”

   (Emphasis added)

3. In support of Ground 1, the Applicant said that she did not participate in improper conduct and that there was a bitter dispute between the shareholders.

4. The characterisation by the Tribunal of the participation by the Applicant in “improper activity”, appears to arise from the Applicant’s claims of a dispute with her nominator, including about the ownership of the company for which she worked. The Tribunal refers to claims by the Applicant that she was threatened by the nominator. The Tribunal recorded its understanding of the dispute as arising from the desire of the nominator to increase his shareholding in the business from 48% to 50% and his threat to the Applicant that if two shares were not transferred to him in the business that sponsors her, the nominator would cancel the nomination.

5. The Tribunal accepted the Applicant’s claim that 2% of the business partnership (owned by the Applicant’s husband and the nominator) was transferred to the nominator for the Applicant’s nomination to continue. However, the Tribunal stated that, inter alia, it gave that conduct little weight. Fairly read, the Tribunal’s description of an “improper activity” engaged in by the Applicant in the context of the evidence of Applicant and the second applicant, was open to it.

6. In the circumstances, the Tribunal did not make a conclusion that was not based on evidence.

7. The Tribunal’s reference of the impact on the integrity of the migration program was open to it given the relevant statutory scheme and government policy. I accept the first respondent’s submissions that Procedures Advices Manual 3 provides for consideration of whether there were any extenuating circumstances beyond the visa holder’s control that led to the circumstances in which the ground for cancellation arose.

8. In the circumstances, it was not a jurisdictional error for the Tribunal to state that the “improper activity to try to secure a nomination” impacted on the integrity of the migration program, was not a finding that the Tribunal was required to make. However, it was not a jurisdictional error for it to do so where a statute confers an undefined discretion in relation to factors to be taken into account (see Minister for Aboriginal Affairs V. Peko-Wallsend Ltd. (1986) 162 CLR 24 at [15] per Mason J).

9. Accordingly Ground 1 is not made out.

Ground 2

1. Ground 2 takes issue with the Tribunal’s statement that it placed “little weight on hardships to the dependants and applicant by having to return to India”.

2. That statement was in the following context:

   “36. She has children who study in Australia. The Tribunal accepts that they would have to return to India with their parents if the application for the subclass 186 was unsuccessful. They have family in India and the applicant has previously travelled back twice to India since she arrived in Australia. The Tribunal is satisfied that if they return to India they would have the support of family. They would also have the skills they acquired in Australia including English skills. The Tribunal places little weight on hardship to the dependents and applicant by having to return to India.

   (Emphasis added)

3. In support of Ground 2, the Applicant said that her family will face hardship if returned to India.

4. The Tribunal’s reasons make clear that the Tribunal accepted that the Applicant’s children would have to return to India if the Applicant was unsuccessful. However, the Tribunal noted that there is family in India and that the Applicant has returned to India twice. The Tribunal was satisfied that if the children returned to India they would have the support of family and have the skills they had acquired in Australia, including English skills.

5. As a general principle, the relevant weight that a tribunal gives to a piece of evidence is a matter for the Tribunal. The Tribunal considered the hardship on the children if the Applicant was to return to India and found that it gave little weight to that hardship for the reasons it gave. That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.

6. In the circumstances, Ground 2 does not identify any jurisdictional error on the part of the Tribunal and appears more to be a disagreement with the findings and conclusions of the Tribunal. The Applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

7. Accordingly Ground 2 is not made out.

Ground 3

1. Ground 3 appears to take issue with the Tribunal’s acceptance of the Applicant’s evidence that complaints had been made to the Police and ASIC; and, that no complaint was made to the Fair Work Commission or the Union; and, the Tribunal’s conclusion to give those matters little weight.

2. The Tribunal’s findings in relation to Ground 3 were made in the context of paragraph 37 of the Tribunal’s reasons, see paragraph 13 above.

3. In support of Ground 3 the Applicant said she had been enduring emotional problem and hardship with her family and that was why no complaint was made to the Fair Work Commission.

4. Again the Tribunal’s findings that complaints had been made to the Police and ASIC and not to the Fair Work Commission or the Union arose from the Applicant’s own evidence. The Tribunal noted the Applicant’s claim that her husband was punched and that he had made a complaint to the Police. The Tribunal asked the Applicant if she made any other complaints, and noted that she made complaints to ASIC and the Police. The Tribunal noted that the Applicant said that no complaints were made to the Unions or Fair Work Australia or any other employment body.

5. The Tribunal noted that the Applicant had provided copies of complaints made to ASIC, the Police and the real estate agency and was satisfied that the appropriate authorities would follow up and investigate the claims made by the Applicant and the second applicant.  The Tribunal noted that the Applicant did not need a Subclass 457 visa to continue to pursue those claims and could seek a bridging visa while awaiting the outcome. The Tribunal noted that the purpose of the visa is for the Applicant to work in Australia in a skilled occupation and is a temporary visa. The Tribunal found the Applicant had not been employed for 10 months.

1. In the circumstances, the Tribunal’s finding that it gave little weight to the Applicant’s complaints to authorities and her dispute with the nominator on the basis that those circumstances arose more than 10 months ago, and that the Applicant would be able to apply for other temporary visas to enable her to pursue her complaints, was open to it on the evidence and material before it and for the reasons it gave.

2. Accordingly, Ground 3 is not made out.

3. Otherwise, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; and, had regard to all material provided in support. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

4. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

5. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

6. The proceeding before this Court should be dismissed with costs.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  28 May 2018