Kaur v Minister for Immigration

[2016] FCCA 601

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 601

Catchwords:
MIGRATION – Review of decision of the former Migration Review Tribunal – cancellation of a temporary work visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.116, 140
Migration Regulations 1994 (Cth)

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Cargo First Pty Ltd v Minister for Immigration [2015] FCCA 2091
Minister for Immigration v Li (2013) 249 CLR 332
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

First Applicant: RAJVINDER KAUR

Second Applicant: JAGDEEP SINGH

Third Applicant: ARPIT SANDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1306 of 2015

Judgment of: Judge Driver

Hearing date: 21 March 2016

Delivered at: Sydney

Delivered on: 21 March 2016

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Mr L Dennis of Minter Ellison

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1306 of 2015

RAJVINDER KAUR

First Applicant

JAGDEEP SINGH

Second Applicant

ARPIT SANDHU

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 16 April 2015.  The Tribunal decided to affirm a decision of a delegate of the Minister to cancel the first named applicant, Ms Kaur’s, temporary work skilled visa.  Background facts relating to this matter are set out in the minister’s outline of legal submissions filed on 14 March 2016.   

2. Ms Kaur is a citizen of India who was granted a subclass 457 visa on 18 October 2013[1].  Ms Kaur was sponsored by BSH Bakery Group to work as a cafe or restaurant manager.  The second and third applicants (respectively, Ms Kaur’s husband and child) were granted visas as members of Ms Kaur’s family unit.

   [1] Court Book (CB) 74

3. On 13 October 2014, a Notice of Intention to Consider Cancellation (NOICC) was sent to Ms Kaur[2].  The NOICC stated that there appeared to be a ground for cancelling Ms Kaur’s visa.  The ground being that “the position associated with the nominated occupation is not genuine”[3].  Ms Kaur responded to the NOICC on 17 October 2014, providing a submission, medical documents relating to her pregnancy and an email from her migration agent, who assisted her with the visa application[4].

   [2] CB 7

   [3] CB 7-8

   [4] CB 24

4. On 8 December 2014, a delegate of the Minister decided to cancel Ms Kaur’s visa pursuant to s.116(1)(g) of the Migration Act 1958 (Cth) (Migration Act) and regulation 2.43(1)(kb)(iii) of the Migration Regulations 1994 (Cth) (Regulations)[5].

   [5] CB 68

5. On 15 December 2014, all three applicants applied to the Tribunal for review of the delegate’s decision[6].  By letter dated 4 March 2015, the Tribunal invited the applicants to appear at a hearing to give evidence and present arguments[7].  Ms Kaur and her husband attended the hearing with their representative and the assistance of a Punjabi interpreter[8].  On 16 April 2016, the Tribunal affirmed the decision to cancel Ms Kaur’s visa[9].

   [6] CB 103

   [7] CB 119

   [8] CB 130

   [9] CB 139

Tribunal’s decision

1. The Tribunal identified that the second and third applicants' visas were automatically cancelled pursuant to s.140(1) of the Migration Act following the cancellation of Ms Kaur’s visa. As such, there was no decision to cancel their visas and the Tribunal had no jurisdiction with respect to them[10].

   [10] CB 140: [3]

2. The relevant issues before the Tribunal were whether there were grounds for cancellation under s.116(1)(g) of the Migration Act and whether Ms Kaur’s visa should be cancelled under that provision[11].

   [11] CB 140: [2]

3. The Tribunal found that Ms Kaur had “never worked” in the position and the relevant business had never begun operating[12]. For these reasons, the Tribunal was satisfied that that the position associated with the nominated occupation was not genuine. Accordingly, the Tribunal found that the discretion to cancel Ms Kaur’s visa was enlivened pursuant to s.116(1)(g) of the Migration Act and regulation 2.43(1)(kb)(iii) of the Regulations[13].

   [12] CB 143-144: [28]

   [13] CB 143-144: [29]

4. The Tribunal then considered whether the discretion to cancel the visa should be exercised.  In doing so, the Tribunal noted that there were no specified matters it needed to consider in the exercise of its discretion to cancel Ms Kaur’s visa[14].  Nevertheless, under policy, the Tribunal adverted to a number of factors[15].  For example, the Tribunal considered Ms Kaur’s purpose for travel to and stay in Australia, any hardship that may be caused by the cancellation, the circumstances under which the ground of cancellation arose, and the best interests of Ms Kaur’s child[16].

   [14] CB 178: [12]

   [15] Procedures Advice Manual – General visa cancellation powers (s.109, s.116, s.128, s.134B and s.140) – at [35.2]

   [16] CB 144-146: [32], [34]-[35], [37]

5. The Tribunal also placed weight on the fact that Ms Kaur had not provided any evidence of any alternative sponsorship or nomination arrangements and noted that the continuation of the visa would be “inconsistent with the purpose of the subclass 457 visa regime”[17].

   [17] CB 146: [39]

6. Having regard to the circumstances as a whole, the Tribunal concluded that Ms Kaur’s visa should be cancelled[18]. Accordingly, the Tribunal affirmed the decision to cancel Ms Kaur’s visa[19]. 

   [18] CB 146: [40]

   [19] CB 139

The present proceedings

1. These proceedings began with a show cause application filed on 13 May 2015.  Ms Kaur continues to rely upon that application.  There are two grounds in the application:

   1.The [T]ribunal was not fair and just in deciding the matter upon knowing the circumstances.

   2. It was explained to the Tribunal member that the delay for the SBS and NOM approvals was due to the Department of Immigration but the Member still proceeded to finalise the matter without giving an extension of time for the SBS and NOM to be approved.

2. The application is supported by a short affidavit filed with it, which I received. 

3. I also have before me as evidence the court book filed by the minister on 18 June 2015.

4. Only the Minister prepared written submissions in accordance with procedural orders made by a registrar on 4 June 2015.  Ms Kaur has not taken up the opportunity afforded her in those orders to file and serve an amended application or additional evidence. 

5. I invited oral submissions from Ms Kaur this morning.  She told me a number of things.  She reviewed her circumstances as were explained to the Tribunal.  Unfortunately, Ms Kaur was not able to take up the employment in respect of which her visa was granted because of her pregnancy and later difficulties with her employer.  In short, by the time she was ready to commence employment, there was no job to go to.  She was invited to pay money in order to create a position, but that was beyond her capacity.  The employment required Ms Kaur to relocate from Sydney to Perth, which she did when she was fit to do so, but she later returned to Sydney.  Ms Kaur was assisted by a firm of migration agents before the Tribunal, and the Tribunal was pressed to provide more time after the Tribunal hearing for Ms Kaur to present evidence of an alternative sponsorship.  That time was granted.

6. Ms Kaur told me today that she was told by her then prospective sponsor that an application for approval of the sponsorship had been lodged with the Minister’s Department, and that further documents were available which had or would be provided to her agents for the purpose of submission to the Tribunal.  Ms Kaur told me that, for some reason she does not understand, the documents were apparently not given to the Tribunal.  Ms Kaur was unable to provide any explanation for that non-provision of documents.

7. Those statements by Ms Kaur were made from the bar table today, and I have considered what the position would be in law if she were able to provide evidence in support of them.  Ms Kaur is not in a position to say whether the documents actually reached her agents, and if they did reach them, whether the agents made a considered decision not to use them or whether the documents were simply not provided to the Tribunal out of carelessness or for some other reason.  There is nothing in what Ms Kaur told me from the bar table that would support an assertion of agent fraud.

8. Ms Kaur appealed to the Court to provide her with more time on the basis that she now has two sponsors available with potential employment at a restaurant in Sydney, or alternatively, in the transport industry.  She was distressed and emphasised that she has not been personally at fault in the circumstances leading up to the cancellation of her visa.  Her circumstances might, hypothetically, be something that the Minister would be prepared to give consideration to.  However, as I explained to her, if the Tribunal decision is a valid one, only the Minister can change it. 

9. In my opinion, Ms Kaur has failed to advance an arguable case of jurisdictional error by the Tribunal.  The Minister’s submissions deal with the grounds raised in the application.  I agree with those submissions.

Ground 1

1. This ground contends that the Tribunal “was not fair and just in deciding the matter upon knowing the circumstances”.  I accept the Minister’s submission that this ground seeks to engage the Court in impermissible merits review and does not identify any arguable jurisdictional error in the Tribunal's decision[20].

   [20] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

2. In particular, the Tribunal considered Ms Kaur’s submissions, evidence, circumstances and a range of other factors in determining whether the position associated with the nominated occupation was genuine.  In Cargo First Pty Ltd v Minister for Immigration[21], this Court considered, in a different context, the same phrase that is set out in regulation 2.43(1)(kb)(iii) and held[22]:

   As the criterion required a qualitative analysis, and that, in turn required the application of judgment based either on experience or the material before the Tribunal, it can be readily seen to be one which falls solely within the scope of the decision-maker’s powers and not one to be determined by the Court. That is certainly the case where there is no indication, in my view, in the legislation that prevented the Tribunal from forming the judgment that it did.

   [21] [2015] FCCA 2091 (affirmed on appeal)

   [22] at [32]

3. In my opinion, the Tribunal's findings were open to it for the reasons it gave.  The Court cannot review the merits of the Tribunal's decision.

Ground 2

1. This ground contends that Ms Kaur’s delay in providing evidence of new sponsorship and nomination arrangements was “due to the Department” and, despite this, the Tribunal proceeded to make a decision without providing an “extension of time”.  There is no evidence to support Ms Kaur’s contention that any delay in establishing new sponsorship and nomination arrangements was caused by the Minister’s Department.  Further, as the Minister notes in his submissions some of the material discussed at the hearing could have been provided without any involvement of the Department[23].

   [23] CB 142: [21]

2. Moreover, the Tribunal's reasons indicate that it did allow Ms Kaur more time to provide further material.  The Tribunal gave Ms Kaur until 20 March 2015 (14 days after the hearing) to provide post-hearing submissions and other evidence including evidence of new sponsorship and nomination arrangements.  At the date of the Tribunal decision (on 16 April 2015, 41 days after the hearing), the Tribunal had not received any further material from the applicants or their representative. Nor was there any contact with the Tribunal[24].

   [24] CB 142: [22]

3. Accepting that Ms Kaur requested more time to provide further material, it is in my view, clear that the Tribunal exercised its discretion reasonably.  In particular, the Tribunal acceded to the request and provided Ms Kaur more time to provide further material.  Further, the Tribunal did not ultimately make its decision until well after the timeframe provided had expired.  In those circumstances, it cannot be said that the Tribunal's decision “lack[ed] an evident and intelligible justification”[25]. While “reasonable minds may reach different conclusions about the correct or preferable decision”, the Tribunal's decision was plainly within the “area of decisional freedom” conferred by the statue[26].

   [25] Minister for Immigration v Li (2013) 249 CLR 332 at [76]

   [26] Li (2013) 249 CLR 332 at [28]

4. Nothing raised orally by Ms Kaur today would support an arguable case of jurisdictional error.  Neither from my own perusal of the material is any such argument available. 

5. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth) (Federal Circuit Court Rules).

6. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. Ms Kaur claims impecuniosity, but that is not a reason for the Court to refrain from making a costs order. I will order that the first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 23 March 2016