KRISHNAMURTHY v Minister for Immigration
[2005] FMCA 1437
•30 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KRISHNAMURTHY v MINISTER FOR IMMIGRATION | [2005] FMCA 1437 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a Temporary Business Entry (Class UC) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.359(c)(2), 474
Migration Regulations 1994 (Cth), Sch 8, item 8107
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | AMARNATH MALUR KRISHNAMURTHY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2070 of 2004 |
| Delivered on: | 30 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 8 September 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2070 of 2004
| AMARNATH MALUR KRISHNAMURTHY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 6 July 2004 for a review of the decision of the Migration Review Tribunal (“the Tribunal”) dated 31 May 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 21 October 2003 to cancel the Temporary Business Entry (Class UC) visa held by the applicant. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
For the purpose of these proceedings the respondent tendered and applied for an affidavit of Richie Harold Holmes affirmed on 27 July 2005 (“the affidavit of Mr Holmes”) to be admitted into evidence. The applicant appeared self represented and indicated to the Court that he did not require the assistance of an interpreter service as he believed he was competent in the English language. The applicant handed up written submissions at the commencement of the hearing which contained the following issues:
1.I first arrived in to Australia on the 25th of September 1998 with a valid student visa to pursue my Masters degree with the University of Wollongong and the visa was valid until 30th of October 1999 during which period I was lawful and abided by the rules and regulations of my student visa.
2.After the completion of my studies, I had an opportunity to change my student visa class lawfully to an employer nominated visa class of 457 and started building my career in the chosen industry. This visa was granted to me on the 13th of March 2000 and was valid until 13th of March 2004.
3.Surprisingly I was informed by DIMIA that I had breached condition 8107 of my visa on 21st of October 2003, and to my full knowledge I have always abided by each and every condition of my visa during my period of cancellation and provided the department with the evidence.
4.Further more when I had presented my case for review with the Migration Review Tribunal, where I was not given any chance for an hearing neither any opportunity to provide substantial information relating to my situation or any clarification to defend my case.
5.The decision made by DIMIA and again by MRT which had major impact on my life and future was based hastily and without proper investigation of my case and situation.
I would kindly request the Honorable court to kindly consider the situation I was and am in as my wife is presently studying in Australia and have got another year to complete the undertaken course and we hope for a favourable decision which would release the enormous stress which we have been going through during the past few months. (Errors included)
Background
The relevant background facts of the applicant have been set out in the written submissions prepared on behalf of the respondent by Mr J Smith of Counsel and I adopt paragraphs 3-9 of those submissions for the purpose of this judgment:
The applicant is a national of India who was granted a subclass 457 business visa on 13 March 2000 on the basis of sponsorship by ISC Pty Limited.
On 15 September 2003, an officer of the Department notified the applicant that there were grounds for cancelling his visa on the basis that he had ceased to work for his sponsor in breach of Condition 8107. The applicant was invited to comment on that and other grounds in the notice and to do so in writing. In his response to this invitation the applicant did not deny that he no longer worked for ISC Pty Limited but indicated that his position had been “off loaded to the subcontinent of India due to (his) proficiency with the local culture and knowledge”. This apparently was due to some strategic alliance with another company, Misoft International (India) PBT Limited, a company with which he said he has had continuing service. In addition, the applicant went on to explain that it was not true that he was working with Films and Casting Temple in Australia but explained that he had been utilising his skills in connection with film producers in the region and had negotiated a contract which would bring great benefits to Australia and the film industry here.
On 21 October 2003 a delegate of the respondent made a decision cancelling the applicant’s visa on the basis that he had ceased to work for ISC Pty Limited and in addition that ISC Pty Limited had failed to comply with its undertakings given in accordance with the approved form 1067.
On 5 November 2003 the applicant lodged an application with the Tribunal for review of that decision. In that application, the applicant gave his residential address as [address] and gave the name and address of his authorised recipient pursuant to s.379G(2) of the Migration Act 1958, namely Sanjay Deshwal whose address was PO Box 195 Turramurra, NSW, 2074.
By letter dated 11 November 2003, addressed both to the applicant care of his authorised recipient as well as to the applicant at his residential address [CB19] the Tribunal asked the applicant to forward within
10 working days of the date of the letter any documents or written arguments that he wished the Tribunal to consider. The applicant’s authorised recipient responded by letter dated 25 November 2003 received on the same day by the Tribunal [CB20].By letter dated 9 January 2004, again addressed to the applicant care of his authorised recipient and sent to the applicant at his residential address, the Tribunal invited the applicant to comment on information received by the Department that he was no longer employed with his approved business sponsor, ISC Pty Limited and that he pursued business activities unrelated to the nomination for the position [CB33]. The same letter contained a further invitation to comment on information to the effect that the sponsor did not comply with the terms of the sponsorship undertaking in accordance with Form 1067 [CB34]. The applicant’s authorised recipient responded to this letter by letter dated 8 April 2004 [CB36]. The authorised recipient asserted that he believed the response to the letter from the Tribunal dated 9 January 2004 had got lost in the mail.
The Tribunal handed down its decision on 31 May 2004.
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s findings and reasons was contained in the respondent’s written submissions and I adopt paragraphs 10-12 of those submissions:
The Tribunal was satisfied that at the time of cancellation the visa review applicant was no longer employed by ISC Pty Limited. This was because the applicant’s only explanation in response to the Department’s invitation to comment was that he was engaged in occupations other than those of the nominated activity of computing professional and was engaged in the occupation of exporter of fruit and in promoting Australia to Indian film companies. There was no evidence that the applicant had obtained permission in writing from the Secretary to change his employer or occupation. Accordingly, the Tribunal found that the applicant had breached Condition 8107 which provided:
“The holder must not change employer or occupation in Australia without the permission in writing of the Secretary.”
The Tribunal then considered the exercise of its discretion, there being no prescribed circumstances. In this respect the Tribunal considered a number of matters identified in policy guidelines contained in the MSI (“Migration Series Instructions 388 – ‘Visa Cancellation Under ss.109, 116, 128 and 140’”). These included the purpose of the visa holders travel to, and stay in Australia, the extent of non-compliance with any conditions, the degree of hardship which may be caused to the visa holder and any family members, the circumstances in which the grounds of the cancellation arose, the person’s behaviour in relation to the Department, now and on previous occasions and any other matters the visa holder raises.
Having considered each of these matters, the Tribunal accepted that the review applicant had sought in some way to justify the breach by claiming there were commercial advantages for Australia in his current undertakings. However, it was not satisfied that he had substantiated those claims and that even if true, they would outweigh the reasons for cancelling the visa. On that basis, the Tribunal concluded that in the exercise of its discretion that the visa be cancelled and so affirmed the decision of the delegate
Application for review of the Tribunal’s decision
On 6 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 10 December 2004 the applicant filed an amended application which contained the following grounds:
1.The Tribunal did not give the applicant a hearing because he did not respond to the Tribunal’s letter dated 9 January 2004. However, the applicant did not receive a copy of the Tribunal’s letter (although he acknowledges that he was living at [address] at the time). Also, the applicant’s migration agent did not inform him about the Tribunal’s letter until a few months later. In these circumstances, the applicant was denied procedural fairness.
2.The Tribunal found that the applicant breached condition 8107 of his visa. The Tribunal fell into jurisdictional error in making this finding.
3.The Tribunal found that the correct or preferable decision was that the applicant’s visa be cancelled. The Tribunal fell into jurisdictional error in making this decision.
The Law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
Mr J Smith of Counsel, appearing for the respondent, filed written submissions on 25 July 2005 which contained the following contentions. I adopt paragraphs 13-17 of those submissions for the purpose of this judgment:
The first issue in the application arises from the fact that the Tribunal did not invite the applicant to attend a hearing. The obligation to invite the applicant to attend a hearing arises under s.360 of the Migration Act. However, that obligation does not arise if:
a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the materials before it; or
b)the applicant’s consent to the Tribunal in deciding the review without the applicant appearing before it; or
c)subsection 359C(1) or (2) applies to the applicant.
Section 359C(2) of the Act provides:
“(2)If the applicant:
(a) is invited under section 359A to comment on information; and
(b) does not give the comments before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.”
That is precisely what happened in this case. The letter from the Tribunal dated 9 January 2004 was sent to the applicant by prepaid post in accordance with s.379A(4)(c)(ii). In those circumstances, s.379C(4) provides that the applicant was taken to have received that document
7 working days after the date of the document, namely 20 January 2004. On that basis, the applicant was invited under s.359A to comment on information and did not provide his comments within the time stipulated in that invitation. Accordingly, s.359C(2) applied and there was no obligation on the Tribunal to invite him to attend a hearing. There being no obligation on the Tribunal to invite the applicant to attend a hearing, it cannot constitute a jurisdictional error that it did not do so. For that reason, the first ground must be rejected.The second and third grounds contain no particulars. It is clear however, that the second ground must fail in light of the applicant’s acknowledgement in his response to the Departmental letter that he did not in fact work for ISC Pty Limited. Further, there was no evidence before the Tribunal, and still is no evidence, that the applicant ever had any written permission from the Secretary to cease that employment. For that reason, the only conclusion open to the Tribunal was that he had breached Condition 8107. The second ground must be rejected.
The third ground appears to be an attack on the exercise of the Tribunal’s discretion once it had concluded that the applicant had breached Condition 8107. However, the Tribunal appears to have taken into account everything raised by the applicant in his responses to the Department and to the Tribunal. There is nothing in the conclusion to suggest that it had misunderstood the test that it had to apply or in some other way erred in the exercise of its discretion. For these reasons the third ground must be rejected.
Reasons
The written submissions tendered by the applicant at the hearing set out a brief summary of the applicant’s circumstances. He stated the details of his academic background prior to being granted a visa permitting him to undertake employment. He stated he was surprised that he was found to be in breach of Condition 8107 of his visa and complained that he was denied the opportunity to provide substantial information to the Tribunal in defence of his case. The Tribunal’s letter to the applicant dated 9 January 2004 (CB pp.33-35) extended an invitation to comment on the information requested by the Tribunal. The letter clearly stated the time limits in which to respond to the request and the action the Tribunal may take if it did not receive any written comments from the applicant.
I accept the written submissions of Mr Smith of Counsel which addressed the relevant legislative regime which covers the issue of this invitation to comment on information and the action the Tribunal may take in the absence of any response. The Tribunal did receive a letter from the applicant and his agent on 8 April 2004 (CB pp.36-38) which stated that the reason for delay was that the Tribunal’s original letter was delayed or lost in the mail. The Tribunal’s letter of 9 January 2004 was addressed to both the applicant and his agent. The applicant’s letter received by the Tribunal on 8 April 2004 contained an explanation of his change of circumstances due to the sponsoring company transferring much of its software development activity offshore to India and from that time the applicant pursued several other activities for organisations other than the approved sponsor. The Tribunal noted in its decision that the applicant did not deny that his employment with the sponsor had ceased as at the time of cancellation of his visa or that he had engaged in occupations that were not subject to an approved nomination (CB p.49).
At the hearing before this Court the applicant stated that he was still employed by ISC Pty Limited but was unable to produce any evidence to support his claim. The claim was nothing more than an unsupported assertion by the applicant. The applicant was invited to explain to the Court the nature of the employment relationship and anything that the applicant would be able to submit to support his assertions. He was unable to do this. The submission by the applicant that he was not provided with an opportunity to attend a hearing or provide substantial information relating to his situation was not sustainable.
The last issue raised in the applicant’s written submission was a personal plea to the Court to consider his situation in the light of his visa cancellation. He stated his wife is presently studying in Australia and has approximately one year to complete her studies and he seeks to remain in Australia to be with his wife until she completes her studies. This is a request for the Court to exercise a discretion which is not a ground of judicial review.
None of the applicant’s grounds were particularised nor was there any evidence in the form of affidavit material which had been filed in support of the applicant’s claims of a continuing relationship with his sponsor. I accept the submission made by the respondent Counsel that the applicant stated in his letter to the Tribunal on 8 April 2004 that he did not in fact work for ISC Pty Limited. In the absence of any evidence of correspondence with the Secretary of the Department seeking a change to his sponsor or the sponsorship arrangements I can only support the view taken by the Tribunal that the applicant had breached Condition 8107. Further, I accept the respondent’s submission that the Tribunal correctly exercised its discretion as it was satisfied that the applicant had breached Condition 8107.
The applicant in these proceedings was self represented and relied on brief written submissions which did not specifically identify any ground for judicial review and were no more than a statement of the facts of his case with a request to the Court to exercise its discretion in his favour. The limited oral submissions made assertions which were unsupported by any evidentiary material. The grounds in the applicant’s original application were vague and unparticularised. However, where an applicant is self represented the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. In order to discharge this obligation I have considered the material made available to me in the Court Book and re-read the Tribunal’s decision. On the face of these documents there is no jurisdictional error disclosed and in the absence of any other material I am unable to form any contrary view. At the time the applicant sought review of the delegate’s decision by the Tribunal and before the period during which the Tribunal considered the application, the applicant was represented by a registered migration agent but the correspondence contained in the Court Book from this migration agent did not address the breach of Condition 8107.
Conclusion
I have not been able to identify any ground that the Tribunal committed jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan Date: 30 September 2005
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