KAUR v Minister for Immigration

[2017] FCCA 2819

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2819

Catchwords:
MIGRATION – Administrative Appeals Tribunal – review of decision to cancel the applicant’s Subclass 187 Regional Responsive Migration Scheme visa – whether the Tribunal’s decision was illogical or irrational – whether the Tribunal’s decision was unreasonable – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.137Q, 359AA, 375A, 476

Migration Regulations 1994, r. 2.50AA

Applicant: JASPREET KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1893 of 2017

Judgment of: Judge Street

Hearing date: 17 November 2017

Date of Last Submission: 17 November 2017

Delivered at: Sydney

Delivered on: 17 November 2017

REPRESENTATION

Solicitors for the Applicant: Ms S Virk
Apostles Legal

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Leave to the applicant to rely upon the amended application filed on 9 October 2017.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,700.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1893 of 2017

JASPREET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 May 2017, affirming a decision of a delegate to cancel the applicant’s Subclass 187 Regional Responsive Migration Scheme visa.

2. The applicant lodged an application for Employer Nomination for a Permanent Appointment on 7 September 2014. That nomination identified a corporate entity and under “Business/organisation address/details” the address Australia, 13 Prince Street, Rosedale, Victoria 3847 was completed. 

3. On 20 June 2016, the applicant was sent a letter giving notice of the proposed cancellation under s 137Q of the Act. The notice set out particulars that had been provided in respect of the possible non-compliance and the author of the letter identified that on the above information, the applicant had not complied with s 137Q(1)(a) of the Act, as the applicant did not commence the employment referred to in the relevant employer nomination with the corporate entity, as a full-time hairdresser within the period prescribed by the Migration Regulations 1994 (“the Regulations”), of six months from the grant of the visa on 2 October 2014. 

4. On 2 August 2016, the delegate found that the grounds for cancellation had been made out and decided, having taken into account the circumstances, that the visa should be cancelled.

The Tribunal’s decision

1. The applicant applied for review on 8 August 2016. By letter dated 20 December 2016, the applicant was invited to attend a hearing. On 9 February 2017. The applicant appeared on that day to give evidence and present arguments and the applicant was also represented by her registered migration agent.

2. The Tribunal in its reasons dated 22 May 2017 identified the application for review. The Tribunal identified raising with the applicant in the course of the hearing, the s 375A certificate and the Tribunal identified to the applicant that it would put any relevant adverse information to the applicant in the hearing under s 359AA of the Act and would allow the applicant time to respond. No issues were raised in respect of the s 375A certificate.

3. The Tribunal identified the requirements in s 137Q of the Act and the relevant period under r 2.50AA of the Regulations, being six months from the date of the grant of the visa. The Tribunal found the applicant’s subclass 187 visa was granted on 4 October 2014 on the basis of the applicant’s nomination for the position of a full time hairdresser in a salon in the regional town of Rosedale, Victoria. The Tribunal referred to the site visit on 12 November 2014, where Departmental officers discovered the applicant was not operating at that location and were told the lease had ceased in March 2014 and was not renewed. The Tribunal referred to the findings by the delegate.

4. The Tribunal referred to the fact that the applicant had been granted the visa on 4 October 2014 on the basis that she would commence work as a hairdresser in the regional area with the nominated employer in December 2014, within six months as required by the Regulations. 

5. The Tribunal made adverse credibility findings in relation to the applicant’s responses, which the Tribunal found convoluted and unconvincing and did not accept that the business was closed because of the cancellation of the visa and because the applicant had no work rights. The Tribunal found that on the evidence, the lease was terminated prior to the cancellation decision and that from 15 August 2016, less than two weeks after the cancellation, the applicant did have work rights.

6. The Tribunal referred to complying with s 359AA of the Act in relation to parts of the documents, the subject of the s 375A certificate that were relevant. The Tribunal made reference to the requirements of s 137Q of the Act which provides as follows:

   Cancellation of regional sponsored employment visas

   Employment does not commence

   (1) The Minister may cancel a regional sponsored employment visa held by a person if:

   (a) the Minister is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations; and

   (b) the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that period.

   Employment terminates within 2 years

   (2)  The Minister may cancel a regional sponsored employment visa held by a person if:

   (a)  the Minister is satisfied that:

   (i)  the person commenced the employment referred to in the relevant employer nomination (whether or not within the period prescribed by the regulations); and

   (ii)  the employment terminated within the period (the required employment period ) of 2 years starting on the day the person commenced that employment; and

   (b) the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period.

   Regional sponsored employment visa

   (3)  In this section:

   "regional sponsored employment visa " means a visa of a kind that:

   (a) is included in a class of visas that has the words "Employer Nomination" in its title; and

   (b) is prescribed by the regulations for the purposes of this definition.

7. The Tribunal noted there was no dispute that the applicant did not commence employment as a hairdresser for her nominated employer, KGN at the Rosedale salon.

8. The Tribunal found that the words “the employment referred to in the relevant employer nomination” includes the location, as identified by the employer in the nomination application, in which the address at which the person is to be employed, is specified. The Tribunal was satisfied that the applicant had not commenced the employment referred to in the relevant employer nomination within the prescribed period and that the ground for cancellation s 137Q(1)(a) of the Act was met. The Tribunal also found the alternative criteria under s 137Q(2)(a) and s 137Q(2)(b) of the Act were also met. It is apparent that this issue was raised at the hearing (see paragraph 19 of the Tribunal’s reasons).

9. The Tribunal was satisfied the ground for cancellation in s 137Q of the Act exists. The Tribunal referred to the power being discretionary and that the Tribunal had to consider whether the power to cancel the visa should be exercised. The Tribunal identified a number of considerations by reason of which the Tribunal concluded that the visa should be cancelled. 

Before this Court

1. The grounds in the amended application are as follows:

   1. Unreasonable decision to refuse the granting of applicant’s visa.

   2. Illogicality or irrationality in the finding of jurisdictional fact.

   3. Procedural fairness -by not affording adequate opportunity to respond.

   4. Reliance on irrelevant factor in reaching final decision to cancel visa.

   5. Misinterpretation of statutory provision.

2. The Court raised with the solicitor for the applicant, Ms Virk that the grounds failed to reflect the attention required of counsel or a solicitor in ensuring that the grounds identified are complete and meaningful.  Ms Virk erroneously at the outset suggested that she was counsel. This was later corrected.

Ground 1: Misinterpretation of Statutory Provision at paragraphs 11 to 15 

1. Ms Virk relied upon submissions which advanced an argument in paragraphs 11 to 15 on the misconstruction of the statutory provision by the Tribunal. Ms Virk argued that s 137Q of the Act does not identify a place of employment and that on its face, the Tribunal erred in construing s 137Q of the Act as requiring the applicant to be at a particular location in respect of her employment. 

2. The language of s 137Q of the Act expressly refers to, “the employment referred to in the relevant employer nomination”.  Those words pick up the content of the nomination and the Tribunal was correct to find that that picks up the place of employment as nominated in a nomination. Accordingly there was no misinterpretation of a statutory provision as alleged in the submissions in paragraphs 11 to 15.

Ground 2: Illogicality and irrationality at paragraphs 16 to 19

1. The grounds in relation to paragraphs 16 to 19, sought to take issue with the finding of the Tribunal in paragraph 46, that the requirements of s 137Q(2)(a) of the Act were satisfied. That was a finding, that was open to the Tribunal and the Tribunal gave logical, rational and cogent reasons for the adverse finding made in paragraph 46.

2. The Tribunal’s reference to the adverse credibility findings in respect of rejecting the applicant’s evidence as being untenable, were open to the Tribunal as identified in paragraph 54. There was no illogicality, irrationality or unreasonableness in the adverse findings by the Tribunal. The applicant’s argument of illogicality and irrationality in paragraphs 16 to 19 appear to be based upon the premise that s 137Q of the Act does not pick up the place of employment. For the reasons given above, that ground fails.

Ground 3: Unreasonableness at paragraphs 20 to 22

1. The next ground addressed in the submissions alleged unreasonableness and is addressed in paragraphs 20 to 22 of the submissions. Ms Virk argued that the Tribunal did not adequately put to the applicant the issue concerning the lease cancellation. A transcript has not been tendered. The Tribunal’s reasons reflect raising the issue of the failure to commence work with nominated employer and this was the sane live issue before the delegate. The ground cannot succeed in those circumstances.  The reasoning of the Tribunal in relation to the lease cancellation was open to the Tribunal and cannot be said to be irrational, illogical or unreasonable. No jurisdictional error is made out by the submissions in paragraphs 20 to 22.

Ground 4: Ignoring relevant material at paragraphs 23 to 27

1. In relation to paragraphs 23 to 27, Ms Virk sought to identify that there was other material upon which a favourable outcome might have been able to be made. This was nothing more than an invitation to this Court to engage in impermissible merits review. No jurisdictional error is made out by paragraphs 23 to 27. 

Ground 5: Procedural fairness at paragraphs 28 to 36

1. The next alleged ground of error is an alleged denial of procedural fairness in respect of the notice, addressed in paragraphs 28 to 36 of the submissions. The argument was advanced that the applicant should have been given further details of the information from the Department in terms of the applicant not working at the relevant site.

2. On no view does this ground establish any jurisdictional error. The applicant had the opportunity to respond to the cancellation notice. The applicant then had the benefit of the determination of the delegate and the applicant was invited to attend a hearing in circumstances where the applicant had ample opportunity to address the issues arising from the delegate’s decision.

3. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. No jurisdictional error is made out in respect of the alleged criticism advanced in paragraphs 28 to 36.

Ground alleging errors in the delegate’s decision

1. The submissions then addressed arguments in respect of alleged errors by the decision of the delegate. This Court does not have power to review the decision of the delegate. Those arguments cannot give rise to any relevant jurisdictional error by the Tribunal.

Ground 6: Asking wrong question/wrong issue at paragraphs 56 to 62

1. A further submission was advanced that the Tribunal had asked itself the wrong question or addressed the wrong issue. Reference was made to paragraph 77 of the Tribunal’s reasons. Those reasons were part of the factual determination by the Tribunal. On the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant issues in respect of cancellation and whether in the circumstances the visa should be cancelled. The ground advanced by the applicant in respect of asking the wrong question is premised on the proposition that s 137Q of the Act does not incorporate the place of business as identified in the relevant employer nomination. For the reasons already given, that proposition is flawed. No jurisdictional error is made out by paragraphs 56 to 62. 

Conclusion

1. Grounds 1 to 6 of the amended application otherwise are bare, generalised assertions all of which unparticularised are incapable of making out any error. No other argument has been developed in respect of any of those grounds.

2. The grounds read with the applicant’s submissions as addressed above failed to make out any jurisdictional error. No jurisdictional error is made out by the amended application. Accordingly, the amended application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 September 2018