Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 138
•15 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 138
File number(s): SYG 1150 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 15 October 2021 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to decision of the Administrative Appeals Tribunal (Tribunal) affirming decision to cancel 457 visa – whether Tribunal failed to consider PIC 4014 when finding that the applicant could apply offshore for a 457 visa – whether assuming it failed to consider PIC 4014 the Tribunal made a jurisdictional error in finding that the applicant could apply offshore for a 457 visa – whether the Tribunal ought to have made inquiries in relation to the circumstances in which applicant employment with sponsor was terminated – whether the Tribunal considered information to which s 359A(1) of the Act applied – whether the notice purportedly issued under s 119 of the Act was invalidly issued deprived the Tribunal of jurisdiction to affirm delegate’s decision to cancel visa – application dismissed. Legislation: Migration Act 1958 (Cth) ss 116(1)(b), 119, 120, 123, 127(2), 338(3), 347, 348(1), 349, 359A, 424A, 457, 476
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) reg 2.72
Migration Regulations 1994 (Cth) reg 2.44(2)(a), Sch 4, PIC 4014
Cases cited: Khan v Minister for Immigration & Anor [2019] FCCA 2387
Minister for Immigration and Indigenous Affairs v Ahmed [2005] FCAFC 58
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 174
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 2 December 2020 Place: Sydney The Applicant: Appeared in person, assisted by an interpreter, by telephone Counsel for the First Respondent: Mr T Reilly, by telephone Solicitor for the First Respondent: Mills Oakley Lawyers ORDERS
SYG 1150 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMER SARWAR KHAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
15 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $5,400.
THE COURT NOTES THAT:
3. These are orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa (457 visa). The delegate cancelled the applicant’s 457 visa pursuant to the power conferred by s 116(1)(b) of the Act.
It will be convenient if I first consider the relevant provisions of the Act, and what has been said about those provisions. I will then set out the circumstances in which the delegate cancelled the applicant’s 457 visa, and the Tribunal’s reasons for affirming the delegate’s decision.
STATUTORY PROVISIONS AND PRINCIPLES
I begin with s 116(1)(b) of the Act, which provides that, subject to “subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied . . . its holder has not complied with a condition of the visa”. Subdivision E of Division 3 of Part 2 of the Act prescribes the procedure for cancelling a visa under s 116 of the Act. First, the Minister must give notice in the manner provided for by s 119 of the Act:
1)Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
(4)The other provisions of this Subdivision do not apply to a cancellation:
(a) under a provision other than section 116; or
(b) to which Subdivision F applies.
Subsection 120(2) requires the Minister to give “particulars of the relevant information to the holder” to ensure, as far as is reasonably practicable, that the holder understands why the “relevant information” is relevant to the cancellation, and invite the holder to comment on it. The expression “relevant information” is defined in s 120(1) of the Act to mean:
information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for cancelling a visa; and
(b) is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and
(c) was not given by the holder; and
(d) was not disclosed to the holder in the notification under section 119.
Section 121 of the Act requires that an invitation that is given under 119(1)(b) or 120(2)(c) must specify whether the response is to be given in writing, or at an interview, or by telephone and, if the invitation is to respond otherwise than at an interview, the response is to be given within the prescribed period or, where no period has been prescribed, within a reasonable period.[1] If a visa holder does not respond to an invitation under s 119(1)(b) or s 120(2)(c) of the Act, s 123 of the Act empowers the Minister to make a decision about cancellation without taking any further action about the information. If, on the other, an applicant responds to the invitation the Minister may at any time cancel the visa after the response is given. Section 127 of the Act provides that, when the Minister decides to cancel a visa, he or she must notify the visa holder in the prescribed way, and the notification of the decision must include the information specified in s 127(2) of the Act.
[1] A period has been prescribed by reg 2.44(2)(a) of the Migration Regulations 1994 (Cth) where the visa holder is in Australia. It is 5 working days.
A decision to cancel a visa under s 116(1)(b) of the Act is a “Part 5-reviewable decision” within the meaning of s 338(3) of the Act. That means that, if a valid application for review of a decision made under s 116(1)(b) of the Act is made to the Tribunal under s 347 of the Act, s 348(1) of the Act requires the Tribunal to “review the decision”. Under s 349(1), the Tribunal may, for the purposes of the review of a Part 5-reviewable decision, “exercise all the powers and discretions that are conferred” by the Act “on the person who made the decision”; and under s 349(3) of the Act, if the Tribunal varies the decision or substitutes a new decision, the decision as varied or substituted “is taken (except for the purpose of appeals from the decisions of the Tribunal) to be a decision of the Minister”.
The Full Federal Court examined the operation of Subdivision E of Division 3 of Part 2 of the Act in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs.[2] The Full Federal Court said:[3]
The language of subs 119(1) also discloses that the cancellation of which the subsection speaks is cancellation on a particular ground or grounds, not cancellation on any ground. This conclusion is to be drawn from the requirement of the subsection that the Minister is to notify the visa holder of particulars of the grounds on which the Minister is considering cancelling the visa and of the information (not being non‑disclosable information) because of which the grounds appear to exist. A notification of the particulars of one ground, and of the information because of which that ground appears then to exist, will not satisfy the requirements of the subsection in respect of another ground on which the Minister may later consider cancelling the visa.
[2] Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218
[3] Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218, at [25]
That a notice purportedly given under s 119 of the Act is invalid does not deprive the Tribunal of jurisdiction to review the decision to cancel if, at the time the Tribunal makes its decision, the ground for cancellation exists, and the Tribunal is satisfied that the visa should be cancelled. The Full Federal Court so decided in Minister for Immigration and Indigenous Affairs v Ahmed.[4] In that case a purported notice under s 119 of the Act did not satisfy the requirements of that section. The primary judge held that the giving of notice under s 119 of the Act was a jurisdictional pre-requisite to the power to cancel a visa under s 116 of the Act; and, given the Migration Review Tribunal (MRT) was authorised to stand in the shoes of the Minister, the MRT could not affirm the purported decision to cancel the visa. The Full Federal Court held this analysis was incorrect. The Full Federal Court said:[5]
[35] The delegate here had an available power to exercise: ss 116(1)(b). However, as is now common ground, the procedural steps under s 119 provided for by the statute had not been completed. In that sense, the exercise of power by the delegate was unauthorised: there was “jurisdictional” error. It does not follow, however, that in exercising the statutory power of review that the Tribunal did not accede to the power that was before the delegate for the purposes of s 349 of the Act. That power was in s 116(1)(b) of the Act.
[36] The review was in respect of the purported decision of the delegate. It is no doubt correct to say that provisions such as ss 348 and 349 do not vest the Tribunal with a wider substantive jurisdiction (in the administrative sense) than the delegate had. The powers conferred on the Tribunal are for the purposes of reviewing the decisions: see s 349. The review is not an exercise in judicial review of the kind contemplated by s 39B(1) of the Judiciary Act 1903 (Cth). The review is of the MRT-reviewable decision of the delegate. The subject matter of that review is to be identified by examining the boundaries of the administrative controversy before the delegate. It may be that one can discern a failure to follow required procedures, such as in ss 119 and 120. That, however, does not affect the question (in substance a factual one, though set in a legal framework) of what were the boundaries of the decision made by the delegate. Once that decision and its boundaries are identified one knows the subject matter of the statutory process of review: Secretary, Department of Social Security v Riley (1987) 17 FCR 99, 105 (per Northrop J); Owen v Repatriation Commission (1995) 59 FCR 93, 99 (per Finn J); Comcare v Burton (1998) 50 ALD 846, 850 (per Finn J). To use the words of Finn J in Owen the decision the subject of review is the response given by the officer to the statutory task required of him or her. To use the words of Bowen CJ in Brian Lawlor it is the decision in fact made by the officer purportedly under or by reference to the enactment.
. . . .
[38] The identification of what is the MRT-reviewable decision by the delegate is not determined by a conclusion that s 119 was not complied with. What was done under s 119, or what should have been done under s 119 may affect the assessment of the boundaries of the decision of the delegate, by assisting an understanding as to the subject matter of the MRT-reviewable decision that the Tribunal is reviewing. However, the fact of a lack of compliance with s 119 neither destroys the power under s 116(1)(b), nor governs the identification of the context of the decision. What the decision was is to be found by examining the terms of the power purportedly exercised, its statutory context, the terms of the reasons, the form of the decision and the material before the decision-maker.
[39] If s 119 has not been satisfied, that is no more a reason to deny the Tribunal the task of exercising a full review of the MRT-reviewable decision, than would be an asserted failure of the delegate to afford procedural fairness or otherwise to comply with requirements failure to undertake which leads to the conclusion that jurisdictional error has occurred.
[4] Minister for Immigration and Indigenous Affairs v Ahmed [2005] FCAFC 58
[5] Minister for Immigration and Indigenous Affairs v Ahmed [2005] FCAFC 58, at [35],[36],[38],[39]
BACKGROUND
The applicant, who is a citizen of Pakistan, was granted a 457 visa on 4 July 2013. It was valid until 4 July 2017.
The 457 visa was subject to condition 8107, which relevantly required the applicant to work only in the occupation listed in the most recently approved nomination for the applicant; that the applicant commence his employment within 90 days after the applicant’s arrival in Australia; and that, if the applicant were to cease employment, the period during which the applicant ceases employment must not exceed 90 days. The notice by which the applicant was informed the 457 visa was granted to him, however, incorrectly stated that the applicant had to secure new employment in 28 days or his visa would be cancelled.
The applicant was sponsored by Brightstar Consulting Group Pty Limited (BCG) to work in the nominated occupation of software and applications programmer. On 18 April 2016 BCG notified the Department of Immigration and Border Protection that the applicant had ceased his employment with it effective from 18 April 2016.
On 22 September 2016 the delegate sent to the applicant a notice of intention to consider cancellation (NOICC) of the 457 visa. The NOICC stated that it appeared the applicant had not complied with condition 8107 because the applicant had ceased his employment with BCG on 18 April 2016, and the period during which the applicant had ceased his employment exceeded 90 days; and that, if this were correct, the 457 visa may be cancelled under s 116(1)(b) of the Act. The NOICC invited the applicant to give reasons why he thinks the ground for cancellation does not exist, and why the applicant thinks the 457 visa should not be cancelled.
The applicant responded by an email sent by his lawyer on 29 September 2016, attaching a statutory declaration. In that declaration the applicant said as follows:
(a)Between 1 August 2013 and 25 September 2015, the applicant did not take any sick leave or annual leave or other time off work.
(b)In 2015 the applicant injured his knee while driving a car on a work assignment; but he continued to work even though he was in pain from the injury.
(c)On 25 September 2015 the applicant returned to Pakistan for further medical check-ups. The applicant thought it would be less expensive for him to receive treatment in Pakistan and his wife and family could care for him.
(d)The applicant discussed these matters with BCG who approved the applicant’s returning to Pakistan, and to sell second hand laptops BCG would ship from Sydney to Pakistan.
(e)In October 2015, when in Pakistan, the applicant was diagnosed with a torn meniscus and an operation was performed on the applicant.
(f)The applicant continued to sell computers for BCG in Pakistan. He did so until January 2016, and BCG continued to pay the applicant’s salary until 24 February 2016.
(g)On 28 February 2016 BCG informed the applicant that it would stop paying his salary because of the applicant’s “long absence”; the applicant informed BCG that his knee operation had not been as successful as he had hoped, and BCG told the applicant to take time to recuperate, finish the sale of all laptops, and the applicant could come back to work in his old job in Australia when the applicant was ready.
(h)The applicant returned to Australia in June 2016 to resume his work with BCG. The applicant attempted to call BCG by telephone, but his calls were not returned. On 5 July 2016 BCG sent the applicant an email stating his employment had been terminated.
The applicant, through his lawyer, provided to the Tribunal a certificate of registration of a company named “Zoraiz Technologies Pty Ltd” which, the lawyer stated to the Tribunal, was a newly established company that wished to sponsor the applicant for a 457 visa. At the hearing before the Tribunal, the applicant informed the Tribunal that he and a friend who is residing in Pakistan, is a director of the company, and that the applicant’s friend was seeking financial investment to run the business, and is returning to Australia.
TRIBUNAL’S REASONS
The Tribunal accepted the applicant’s evidence that BCG terminated his employment on 5 July 2016, and it was not satisfied BCG had informed the applicant before this date that it would terminate the applicant’s employment. The Tribunal, therefore, found the applicant ceased employment in the occupation listed in the approved nomination, being a “software and applications programmer”, and the period during which the applicant ceased employment exceeded 90 days. The Tribunal, therefore, found the applicant had breached condition 8107 and, for that reason, the 457 visa was liable to be cancelled.
The Tribunal then considered a number of matters it considered to be relevant to the exercise of the discretion whether to cancel the visa.
(a)Although the Tribunal accepted the NOICC incorrectly stated the applicant was required to secure new employment in 28 days, rather than in 90 days, it found that the contents of the NOICC was not relevant to whether the 457 visa should be cancelled.[6]
(b)The Tribunal also accepted that as at the date the NOICC was issued the applicant had not breached condition 8107 because the Tribunal found the applicant’s employment ceased on 5 July 2016. The Tribunal noted, however, that eight months had passed and the applicant had breached condition 8107.[7]
(c)The Tribunal accepted the applicant underwent knee surgery in Pakistan in October 2015, and he remained in Pakistan until he recovered in June 2016, and that during that period he had sold some 500 laptop computers for BCG.[8]
(d)The Tribunal did not accept BCG unfairly dismissed the applicant, noting that in March 2015 BCG emailed the applicant and warned the applicant that further absence would result in its terminating the applicant’s employment.[9]
(e)The Tribunal accepted the applicant and a friend had established a company and he intended to set up a software development business; that the applicant intends to lodge a standard business sponsorship and nomination approval application; but the Tribunal was not satisfied the applicant had reasonable prospects success in those endeavours.[10]
(f)The Tribunal accepted the applicant wishes to remain in Australia to secure paid employment because he has significant debts. The Tribunal noted, however, that the purpose of a 457 visa is not just to secure paid employment in Australia; it is to secure sponsored employment to work in a skilled occupation for an approved Australian sponsor seeking to fill a skills shortage; and the applicant has been unable to secure such sponsored employment since BCG terminated his employment.[11]
(g)The Tribunal accepted that the applicant’s breach of condition 8107 appears to be confined to ceasing employment for a period exceeding 90 consecutive days.[12] The Tribunal accepted that it was the BCG’s decision to end the applicant’s employment that led the applicant to be in breach of condition 8107; but the Tribunal also noted that the applicant’s non-compliance with condition 8107 also arose because the applicant has not been able to secure sponsored employment in a skilled occupation since July 2016.[13]
(h)The Tribunal accepted the applicant has credit card debts, but it did not accept the applicant incurred these debts because of the 457 visa cancellation. The Tribunal found the applicant incurred those debts because he had exhausted his sick leave by February 2016.[14] The Tribunal accepted, however, that the cancellation of the 457 visa may impact on his family, given the applicant is the primary breadwinner.[15]
(i)The Tribunal accepted the evidence suggests the applicant’s business partner will be returning to Australia shortly, and it was satisfied the applicant will be able to apply for another Subclass 457 visa offshore if the business is established and approved as a standard business sponsor.[16]
[6] CB189, [30]
[7] CB189-190, [30]
[8] CB190, [31]
[9] CB190, [32]
[10] CB190, [33]
[11] CB190, [33]
[12] CB191, [34]
[13] CB191, [37]
[14] CB191, [35]
[15] CB191, [36]
[16] CB192, [39]
Having considered these matters the Tribunal concluded that the 457 visa should be cancelled. The Tribunal said it “gives significant weight to the fact that the applicant has not been able to secure sponsored employment with an approved sponsor, to work in a skilled occupation, as the subject of an approved nomination, since his sponsored employment was terminated in July 2016”.[17]
[17] CB192, [40]
GROUNDS OF APPLICATION
The application contains four grounds of application. At the hearing, the applicant, who is not legally represented, advanced an additional ground. Namely, that the NOICC was invalid because at the time the delegate issued it the applicant was not in breach of condition 8107.
Ground 1
Ground 1 is as follows (errors in original):
The Administrative Appeals Tribunal failed to have regard to relevant consideration thereby denying the applicant procedural fairness
PARTICULARS
a)In paragraph 39 the Tribunal decision record states “…The Tribunal is satisfied that the applicant will be able to apply for another Subclass 457 visa offshore…”. However, in its reasoning the Tribunal failed to consider Public Interest Criteria 4014 in any subsequent offshore visa applications.
b)The Tribunal failed to properly assess the eligibility of the Applicant to return to Australia on subclass 457 visa.
c)The Tribunal failed to make inquiries with the Applicant’s employer in regards to the termination of employment. The Tribunal failed to assess the procedure for termination applied by the employer.
d)The Tribunal failed to adequately assess the lawfulness of the termination of employment according to national employment standards. The employer was required to give notice of 1 month for termination of employment in lieu of payment. The employer failed to provide that notice, so the termination came to effect a month after 5 July 2016.
Particular (a) claims the Tribunal failed to take into account Public Interest Criterion 4014 (PIC 4014). That criterion in effect prevents a person who has departed Australia as the holder of a Bridging C (Class (WC), Bridging D (Class WD), or Bridging E (Class WE) visa from applying for another visa for three years after the person’s departures from Australia, unless the Minister is satisfied there are compelling circumstances that effect the interests of Australia, or there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
It is true the Tribunal does not expressly refer to PIC 4014. I am not prepared to find, however, the Tribunal was unaware of that condition. In any event, the Tribunal’s reference to the applicant’s ability to apply offshore for a 457 visa is correct. The Tribunal did not find that the applicant would be granted a 457 visa if he applied for such visa offshore. Even if the Tribunal did not consider PIC4014, and, assuming the Tribunal was bound to consider it, its failure to do so would have to be viewed in light of its other findings, and in particular, its finding that the applicant did not have reasonable prospects of succeeding in his friend establishing a software development business in relation to which a standard business sponsorship and nomination would be approved. Thus, any failure by the Tribunal to consider PIC 4014 would not have been material.
Particular (b) implies the Tribunal was under a duty to consider the applicant’s eligibility to return to Australia as the holder of a 457 visa. To the extent this relies on particular (a), what I have said in relation to that particular applies to particular (b). In any event, the Tribunal did otherwise make findings that were relevant to determining the applicant’s eligibility to hold a 457 visa; and those findings relate to the applicant’s evidence that his friend had established a company and he intended to set up a software development business; and that the applicant intends to lodge a standard business sponsorship and nomination approval application. As I have already noted, the Tribunal found the applicant did not have reasonable prospects of succeeding in these endeavours.
Particular (c) claims the Tribunal failed to make inquiries of BCG in relation to the circumstances in which it terminated the applicant’s employment. The Tribunal did consider the material before it that related to the circumstances in which the applicant’s employment ended with BCG. The Tribunal found the employment ended in July 2016, and it did not accept that BCG unfairly dismissed the applicant from his employment. Particular (c) does not identify the additional information the Tribunal could reasonably have obtained by making enquiries of BCG in relation to the circumstances in which BCG terminated the applicant’s employment. In any event, there is nothing on the material before me that ought to have led the Tribunal to consider whether there was additional information BCG could have provided that the applicant did not provide or was not in a position to provide that related to the circumstances in which BCG terminated the applicant’s employment.
Particular (d) claims the Tribunal did not assess the lawfulness of the BCG’s termination. That is correct. But the applicant has not articulated how the lawfulness or otherwise of BCG’s termination could have been relevant to the question the Tribunal was required to decide, namely, whether the applicant’s 457 visa should be cancelled because the applicant has not complied with condition 8107. It is difficult to see how the lawfulness could have been relevant. The unlawfulness particular (d) claims is BCG’s failure to give the applicant one month’s notice or one month’s payment in lieu. Even if correct, the applicant would still have been in breach of condition 8107 at the time the Tribunal made its decision.
Ground 2
Ground 2 is as follows:
The decision of the Administrative Appeals Tribunal is contrary to natural justice.
PARTICULARS
a)The intention of the legislative provisions of the Migration Act 1958 relevant for the review of decision is to allow the person natural justice. The Tribunal denied the applicant natural justice by failing to assess the Applicant’s eligibility for offshore subclass 457 visa.
b)The Tribunal failed to adequately assess the lawfulness of the termination of employment according to national employment standards.
Ground 2 repeats the substance of the claims made in particulars (c) and (d) to ground 1, but relies on them in support of the contention that the Tribunal failed to accord the applicant natural justice.
Any obligation the Tribunal may have had to accord the applicant natural justice did not extend to requiring the Tribunal to consider the applicant’s eligibility for making an offshore application for a 457 visa, or the lawfulness of BCG’s termination of the applicant’s employment. In any event, to the extent the Tribunal was under any obligation to do so, the Tribunal did make findings on the material before it that related to these subjects.
Ground 2, therefore, also fails.
Ground 3
Ground 3 is as follows:
The Administrative Appeals Tribunal failed to make a relevant enquiry.
PARTICULARS
a)The Tribunal failed to make inquiries with the Applicant’s employer in regards to termination of employment. The Tribunal failed to assess the procedure for termination applied by the employer.
b)The Tribunal decision record at paragraphs [sic] 37 does not reflect upon the procedure of termination in light of the employment contract with the Applicant or national employment standards.
This ground repeats the substance of the claims made in paragraphs (c) and (d) of the particulars to ground 1. As I have already noted, the Tribunal did make findings based on the material before it in relation to the circumstances in which BCG terminated the applicant’s employment. Further, as I have also already noted, the applicant does not identify what additional information the Tribunal could reasonably have obtained by making enquiries of BCG in relation to the circumstances in which BCG terminated the applicant’s employment; and, in any event, there is nothing on the material before me that ought to have led the Tribunal to consider whether there was additional information BCG could have provided that the applicant did not provide or was not in a position to provide that related to the circumstances in which BCG terminated the applicant’s employment.
Ground 3, therefore, also fails.
Ground 4
Ground 4 is as follows (errors in original):
The Administrative Appeals Tribunal failed to comply with section 359A of the Act.
PARTICULARS
a)The Tribunal failed to give notice to the Applicant under this section that the date of the termination would be the reason or part of the reason for affirming the decision under review.
b)The Tribunal failed to give clear particulars in regards to the concerns it had about the date of termination of employment before, during or after the hearing.
c)The Tribunal failed to give notice to the Applicant under this section that selling computers overseas would be the reason or part of the reason for affirming the decision under review.
d)The Tribunal failed to give the Applicant adequate opportunity to respond to the Tribunal’s concerns. That is, some matters arose during the course of the hearing and the Tribunal failed to give the Applicant an opportunity to adequate [sic] time to provide comment on it.
Principles
This ground relies on s 359A(1) of the Act, which provides:
Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
The determination of the applicant’s reliance on s 359A turns, in large part, on the application of the principles that have been developed for construing the word “information” as it appears in s 359A(1) of the Act and in the equivalent provision contained in s 424A of the Act.[18]
[18] I repeat in this and the following two paragraphs what I said in Khan v Minister for Immigration & Anor [2019] FCCA 2387, at [30]-[32]
It has been held that “information”, as used in those subsections, “refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal . . . irrespective of whether it is reliable or has a sound factual basis”;[19] but it does “not encompass the Tribunal’s subjective appraisals, thought processes or determinations”. Nor “does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps”.[20] The meaning of “information” is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[21]
[19] VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 (Finn and Stone JJ), at [24]
[20] VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 (Finn and Stone JJ), at [24] quoted with approval by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609, at 616 ([18]).
[21] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609, at 616 ([18])
A formulation that is often applied to determine whether any given information is “information” to which s 424A(1) (and, therefore, s 359A) of the Act applies, is the High Court’s formulation in SZBYR v Minister for Immigration and Citizenship.[22] In that case the High Court held that portions of a statutory declaration did not constitute “information” for the purposes of s 424A(1) of the Act because they “did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations”.[23] And in Minister for Immigration and Citizenship v SZLFX, the High Court said that for s 424A(1)(a) of the Act to be engaged “the material in question should in its terms contain a “rejection, denial or undermining” of the review applicant’s claim to be a refugee”.[24]
[22] [2007] HCA 26; (2007) 235 ALR 609
[23] [2007] HCA 26; (2007) 235 ALR 609, at page 615 ([17])
[24] [2009] HCA 31; (2009) 238 CLR 507, at page 513 ([22])
What the High Court said in SZBYR and SZLFX must be considered in light of the plurality’s judgment in Plaintiff M174/2016 v Minister for Immigration and Border Protection. That case concerned s 57(1) of the Act which includes the expression “information . . . [that] would be the reason, or part of the reason . . . for refusing to grant a visa”. The plurality accepted, or at least assumed, that the meaning that had been given in SZBYR and SZLFX to the expression “information” was correct; and the plurality expanded on that meaning in the emphasised portion of the following passage (references omitted):[25]
Section 57 is also located within subdiv AB. The section deals with “relevant information”. Section 57(1) defines that term, subject to an immaterial exclusion, to mean information that the Minister considers meets three conditions. The first condition is relevantly that the information “would be the reason, or part of the reason … for refusing to grant a visa”. Whether or not that condition is met, it has been held in this Court in respect of a materially identical provision, “is to be determined in advance – and independently – of the [Minister's] particular reasoning on the facts of the case”. For the condition to be met, it has again been held in this Court in respect of a materially identical provision, the information in question “should in its terms contain a ‘rejection, denial or undermining’ of the review applicant's claim”. That is to say, the information must in its terms be of such significance as to lead the Minister to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing to grant the visa. The Court is not asked to reconsider that approach to the operation of the first condition in the present case.
[25] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 174, at [9]
Determination
Particular (a) claims that the date on which the applicant’s employment with BCG ended was “information” to which s 359A of the Act applied. I do not accept that claim. First, it is information the applicant himself provided to the Tribunal for the purposes of the review and, for that reason, s 359A(4)(b) of the Act applies to exclude the operation of s 359A(1) on that information. Second, the day on which the applicant’s employment with BCG ended is not information the Tribunal considered in advance of its decision to affirm the delegate’s decision would be the reason, or part of the reason, for affirming the delegate’s decision. Third, the information did not by its terms contain a rejection, denial or undermining of the applicant's claim.
Particular (b) relates to what “concerns” the Tribunal had about the date of termination of the applicant’s employment. The Tribunal’s reasons do not reveal any “concerns”, in the sense that the Tribunal considered that the date on which the applicant’s employment with BCG was of material importance to its review of the applicant’s case. In any event, to the extent the Tribunal had any such concerns, this could not have been information to which s 359A(1) applied. It was not information the Tribunal considered in advance of its decision would be the reason, or part of the reason, for affirming the delegate’s decision; and it was not information that by its terms contained a rejection, denial or undermining of the applicant’s claim.
Particular (c) relates the applicant’s selling computers overseas. There is nothing in the material before me that suggests the Tribunal considered in advance of its decision that the applicant’s selling computers while overseas would be the reason, or part of the reason, for affirming the delegate’s decision; and it was not information that by its terms contained a rejection, denial or undermining of the applicant’s claims.
Particular (d) refers to “concerns”. The paragraph, however, does not identify the concerns. In any event, even if the applicant were able to identify the concerns, it is unlikely those concerns would be anything other than the Tribunal’s subjective appraisals, thought processes, or determinations, and, for that reason, would be information to which s 359A(1) of the Act applies.
For these reasons, ground 4 fails.
ADDITIONAL GROUND
At the hearing the applicant submitted that at the time the NOICC was issued he had not been in breach of condition 8107 and, for that reason, the Tribunal could not affirm the delegate’s decision.
This submission is no different from the submission the Full Federal Court rejected in Minister for Immigration and Indigenous Affairs v Ahmed.[26] That the delegate decided to cancel the applicant’s visa in circumstances where the delegate failed to comply with s 119 of the Act “is no more a reason to deny the Tribunal the task of exercising a full review of” the delegate’s Part 5-reviewable decision to cancel the 457 visa “than would be an asserted failure of the delegate to afford procedural fairness or otherwise to comply with requirements failure to undertake which leads to the conclusion that jurisdictional error has occurred”.[27]
[26] Minister for Immigration and Indigenous Affairs v Ahmed [2005] FCAFC 58
[27] Minister for Immigration and Indigenous Affairs v Ahmed [2005] FCAFC 58, at [39]
The applicant’s additional ground, therefore, also fails.
OTHER MATTERS
Although not raised by the Minister, had I found the Tribunal made a jurisdictional error, the question may have arisen about whether there would be any utility in granting a remedy. That question might have arisen because Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) repealed reg 2.72 of the Regulations and, with that, subclass 457 visas.
DISPOSITION AND COSTS
I propose to order that the application be dismissed.
At the hearing counsel for the Minister submitted that, if he were to succeed, the Minister would seek costs in the amount of $5,400. The applicant submitted that he does not have the money to meet a costs order. That is not a reason that, in the circumstances of this case, is relevant to the order for costs I should make. I am satisfied that costs should follow the event, and that the amount the Minister seeks is a fair indemnity of the costs he has incurred. I will therefore order that the applicant pay the Minister’s costs set in the amount of $5,400.
I will also note that the orders I propose to make are orders of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the orders I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth), however, does not constitute any court by the name of the “Federal Circuit and Family Court of Australia”.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 15 October 2021
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