Lather v Minister for Immigration
[2019] FCCA 3146
•1 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LATHER & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3146 |
| Catchwords: MIGRATION – Visa – business entry visa – whether substantial compliance with a mandatory time of decision criterion – request for impermissible merits review – whether denial of procedural fairness – whether matter complained of was dispositive of merits review – no jurisdictional error demonstrated – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.140GB Migration Regulations 1994 (Cth), cls.457.221, 457.223(4)(a) & 8107(3)(a)(i) |
| Cases cited: Kim v Witton (1995) 59 FCR 258 |
| First Applicant: | RAVINDER LATHER |
| Second Applicant: | ANJU LATHER |
| Third Applicant: | NIKUNJ LATHER |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 257 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 1 October 2019 |
| Date of Last Submission: | 1 October 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 1 November 2019 |
REPRESENTATION
| The Applicants: | Mr Ravinder Lather |
| Solicitors for the Respondents: | Ms N Milutinovic for Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicant do pay the costs of the first respondent fixed in the amount of FIVE THOUSAND DOLLARS ($5,000).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 257 of 2017
| RAVINDER LATHER |
First Applicant
| ANJU LATHER |
Second Applicant
| NIKUNJ LATHER |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for constitutional writs in relation to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 30 May 2017. That decision affirmed an earlier decision of a delegate of the first respondent not to grant the applicant a Temporary Business Entry (Class UC) (subclass 457) visa (‘the visa’). The applicants were self-represented before me.
The application raises three grounds as follows:
“The Tribunal refused my application because is of the opinion that:
· I failed to have complied substantially with the conditions required in a substantive visa, and in particular to s 8107(3).
· That in arriving to this decision, the Tribunal has rejected all explanations I have given and incorrectly concluded, without any proof or otherwise that I was deceptive, lying and colluding with my previous employer.
· That the Tribunal raised a new issue during the hearing by asking about my new employment status without giving me any prior notification as I believed that the hearing was solely to hear the merits of the cancellation of my visa. That in so doing, the Tribunal asked me to provide documents to prove my employment status and when I was unable to do so at that time, the Tribunal did not give me time and prior notice to provide the documents to support what I had said.”
(re-produced verbatim)
On 4 August 2017, a Registrar of the Court gave the applicant leave to file and serve any amended application and such further material, including the transcript of the hearing, as they might seek to rely on by 22 October 2017. In addition, the applicants were ordered to file an outline of submissions 10 business days prior to the hearing.
No amended application or further materials were filed. A written outline of submissions was not filed.
The applicant seeks to rely on the materials in the Court Book as well as an affidavit affirmed on 28 June 2017.
The affidavit affirmed on 28 June 2017 restates the grounds of appeal; indicates the applicant’s disagreement with the findings of the Tribunal; restates in part the explanation that he gave to the Tribunal; expresses his lack of understanding of how the Tribunal was able to reach the conclusion that it did; and requests that the Court reverse the decision given by the Tribunal on the basis that he was denied justice and fairness when the matter was determined.
Background
The background to this matter is not in dispute, and accordingly I have summarised it from the outline of submissions filed by the first respondent.
The applicant and the second applicant are citizens of India. The third applicant is their child. They arrived in Australia in 2008 on a student visa. In January 2014, the applicant was granted a Temporary Work (Skilled) (Subclass 457) visa. His sponsor was Gaurisha Proprietary Limited, which traded as Café Primo.[1]
[1] Court Book (‘CB’) pp 1 – 5.
In April 2016, the applicant applied for a second (subclass 457) visa with the second and third applicants being members of his family unit. For the purpose of that application, he was sponsored by Al Omar Proprietary Limited, which traded as Café Manarello.
The Department cancelled the applicant’s first visa on 26 April 2016, and it did so because it alleged that he did not satisfy cl.8107(3)(a)(i) of condition 8107 in Schedule 8 to the Migration Regulations 1994 (Cth) (‘the Regulations’).[2]
[2] CB p 154.
The basis for reaching that conclusion was that the applicant had been working as a taxi driver, as well as in his sponsored employment with Café Primo.
On 9 May 2016, the sponsor’s nomination application was refused. On 15 June 2016, a delegate of the Minister also refused to grant the applicants the visa on the basis that the applicant was not the subject of an approved nomination under s.140GB of the Migration Act 1975 (Cth) (‘the Act’) at the time of the delegate’s decision as required by cl.457.223(4)(a) of the Regulations.[3]
[3] CB pp 66 - 75.
The applicants reviewed the delegate’s decision before the Migration Review Tribunal (‘MRT’). On 1 December 2016, the MRT remitted the application to the Department for reconsideration, directing the Department that the applicant did in fact meet cl.457.223(4)(a) because the MRT had approved the applicant’s nomination.[4]
[4] CB pp 76 - 82.
The applicants wrote to the Department in January of 2017, setting out their version of the circumstances surrounding the cancellation of the first visa.[5] They submitted that there were compassionate and compelling reasons behind the circumstances which led to the cancellation. Those reasons were that the applicant’s previous sponsor, Gaurisha Proprietary Limited, trading as Café Primo, had underpaid him. He had no other option but to work as a taxi driver in order to support his family.
[5] CB pp 107 - 108.
On 10 February 2017, a delegate of the first respondent refused a second time to grant the applicants a visa. The delegate did so on the basis that he was not satisfied that the applicant had complied substantially with the conditions applied to the last substantive visa in accordance with cl.457.221 of the Regulations. The delegate found that the applicant was in breach of condition 8017 of the first visa because he worked as a taxi driver in 2014.
On 20 February 2017, the applicants applied for a review of the delegate’s decision to the Tribunal. On 26 May 2017, the first and second applicants appeared at a hearing before the Tribunal with the assistance of an Indian interpreter.[6]
[6] CB pp 166 - 168.
The Tribunal affirmed the decision of the delegate not to grant the visas to the applicants. That decision was made on 30 May 2017. It is that decision which is the subject of review before this Court.
The Tribunal Decision
The Tribunal noted that the applicant was to be assessed as against the requirements in cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor.[7] It went on to note that cl.457.221 required the first applicant to have substantially complied with the conditions that applied to his last substantive visa and any subsequent bridging visa. The Tribunal correctly noted that the question of substantial compliance was one of fact and succinctly and correctly stated the relevant legal principles relating to that assessment.[8]
[7] CB p 173 at para [4].
[8] CB p 173 at para [10] to p 174 at para [11].
The Tribunal noted that the last substantive visa was subject to condition 8107 and, in particular, condition 8107(3)(a) which stipulated that the applicant was only permitted to work in the occupation listed in his most recently approved nomination and only for his business sponsor. In the applicant’s case, that meant working as a cook for Café Primo. The Tribunal considered the evidence given by the applicant, that his employer had informed him that there had been a robbery and as a result the employer was left with no choice but to reduce his wages from $25 an hour to $15 an hour.
The Tribunal noted that the applicant said this was given effect by him repaying part of his weekly wages to the sponsor in cash. It was a lack of money from his sponsored employment with which to support his family that the applicant said had caused him to work as a taxi driver. The Tribunal accepted that he worked as a taxi driver and appears to have accepted his explanation that he was repaying a significant amount of his weekly wage to his employer in cash. The Tribunal concluded nonetheless that the concept of substantial compliance applied to condition 8107 and found that the first applicant was in breach of condition 8107(3)(a)(i).[9]
[9] CB p 177 at para [40].
The Tribunal concluded that the nature of the applicant’s breach of the visa condition was deliberate, premeditated and ongoing.[10] This was on the basis that it accepted that he had worked as a taxi driver between April 2014 and August 2014 at the same time as working as a cook. The Tribunal did not accept the explanation that Café Primo had been robbed or that the applicant had no choice but to work at a lower rate of pay. It identified a number of actions he could have taken, including going to the Fair Work Ombudsman.
[10] Ibid at para [41].
Rather than focusing on the reprehensible conduct of the sponsor, the Tribunal was concerned that the applicant helped out the employer by repaying parts of his wage to the employer in cash. It found that the applicant’s actions were motivated to assist the employer to avoid detection by the Department and to avoid detection himself while working in a second job.[11]
[11] CB p 177 at para [45].
It is difficult to see how the Tribunal could have concluded that the applicant’s actions were motivated by a desire to assist the employer to avoid detection given that the relevant conduct was a breach of the law to the detriment of the applicant himself. That to me seems to be an illogical finding. Nonetheless, the Tribunal found that the applicant was also motivated by a desire to avoid detection himself whilst working two jobs. The Tribunal concluded that had it not been for a traffic incident in 2014, the applicant would have continued to breach condition 8107 by working in a second job as a taxi driver. The Tribunal noted that the integrity of the 457 visa scheme depended upon visa applicants working only with their sponsored employer. The implication being that the conduct of the applicant had the tendency to undermine the scheme.
It accepted that the applicant had a new sponsoring employer and that he genuinely wanted to continue working as a cook. It found that there was no supporting evidence or references from the new sponsor in support of the application. It is not immediately clear why the Tribunal found it necessary to make this finding, given that it accepted that the applicant actually had a sponsor.
The conclusion of the Tribunal was that the applicant had not substantially complied with cl.8107 and for that reason did not meet the requirements of cl.457.221. As an inevitable consequence of that finding it found that the second and third applicants did not meet the visa criteria.
Submissions
The first applicant made brief oral submissions on his own behalf and for the second and third applicants. Those submissions were essentially a restatement of the grounds of application. He repeated his evidence about his employment conditions changing when Café Primo unilaterally dropped his wage from $25 an hour to $15 an hour and the fact that he found it impossible to provide for his family on that amount of money.
He said that after that occurred, he discussed his position with friends, but he did not receive any good advice. He repeated that he was forced to drive a taxi for one to two nights per week. It was that situation that had caused him to be in breach. He accepted that he had not asked for an adjournment of the Tribunal hearing.
He submitted, in effect, that it was unfair to him that the Tribunal made the observation that he had not brought his second sponsor to the Tribunal hearing to give evidence and he says that was because he had been in detention for some time. He complains that he had no chance to “prove” his new employer. He repeated that he had only breached the conditions of his first visa because he was trying to support his family.
The first respondent submitted that the oral submissions of the applicant simply amounted to a request for a merits review. It submitted that no jurisdictional error can be demonstrated in relation to this decision. Further, it was submitted that the applicant’s complaint about the failure to give him an opportunity to bring his second sponsor to Court or otherwise provide information from his second sponsor was irrelevant in the sense that it was not determinative of the issues at review.
It must be borne in mind, the first respondent submitted, that the Tribunal accepted the fact that the applicant had a second sponsor. The issue before the Tribunal was and always had been whether his application for the second visa should have been refused on the grounds of his non-compliance with conditions of the first visa by virtue of his having worked as a taxi driver at the same time as working as a cook for his first sponsor.
It was submitted that there was no error in the approach taken by the Tribunal to the question of whether or not the applicant had substantially complied with the conditions of the last substantive visa held.
Consideration
I have approached the matter on the basis that each dot point in the ground pleaded by the applicant is presented as a separate ground. Ground 1 is not a proper ground of review and does not identify any species of jurisdictional error. It simply restates the ultimate conclusion of the Tribunal.
With respect to ground 2, in essence, the applicant is simply making a complaint about findings of fact made by the Tribunal. Further, as the first respondent submits, the ground overstates the nature of the findings made by the Tribunal. It did not make any finding that he was deceptive, lying or colluding with his previous employer. Whilst it did make findings about his conduct, the effect of the finding by the Tribunal was that his conduct was deliberate ongoing and premeditated and had the twofold motive that I have referred to earlier in these reasons.[12] That finding was open to it and was crucial to the findings that there had not been substantial compliance with cl.8107.
[12] CB p 177 at para [45].
The finding made by the Tribunal was that the arrangement entered into was intentional, that he knew what he was doing, and that he had a choice in acting in the way he did.[13] The finding that the arrangement allowed the applicant to work two jobs without detection was a factual observation.[14]
[13] CB p 177 at para [44].
[14] Kim v Witton (1995) 59 FCR 258.
With respect to ground 3, I have concluded that it is misconceived. The applicant complains about the fact that he was not given an opportunity to introduce evidence from his new sponsor. He accepted during the course of submissions that he had not requested an adjournment. However, the hearing before the Tribunal did not turn on the question of whether or not the applicant had a second sponsor. The Tribunal accepted that he did in fact have such a sponsor. It does not appear to have rejected the veracity of his claims to want to work as a cook with the sponsor.
Even had the Tribunal decided to give the applicant time to call the sponsor, it would not have produced any evidence that affected the ultimate basis upon which the hearing was determined. That is because the issue which was determinative in the matter was whether or not the applicant had complied with condition 8107.[15]
I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 1 November 2019
0
1
3