Naqvi v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 991
•8 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Naqvi v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 991
File number(s): MLG 1042 of 2020 Judgment of: JUDGE CUTHBERTSON Date of judgment: 8 October 2024 Catchwords: MIGRATION – Subclass 457 (Temporary Work (Skilled)) visa – decision of Administrative Appeals Tribunal – Tribunal affirming decision of delegate to cancel the primary visa holder’s visa - whether the primary visa holder worked in an associated entity of the approved sponsor and outside of their approved nomination – whether jurisdictional error established – application dismissed Legislation: Corporations Act 2001 (Cth) s 50AAA
Migration Act 1958 (Cth) ss 116, 140(1), 140M, 359A, 360, 476
Migration Regulations 1994 (Cth) regs 1.03, 2.43(1)(l)(iv), 2.86, 2.89, 2.90; cl 457.611(2) of Sch 3; cl 8107 of Sch 8
Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Farah v Minister for Immigration and Citizenship [2011] FCA 185
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of last submission/s: 28 August 2024 Date of hearing: 28 August 2024 Place: Melbourne The First Applicant: By videoconference and on behalf of the second applicant Counsel for the First Respondent: Mr J. McDonald Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1042 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SYED MOHAMMAD AWAIS NAQVI
First Applicant
SUMMIYA IMAM
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
8 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 27 March 2020 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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
JUDGE CUTHBERTSON
INTRODUCTION
On 27 March 2020, the applicants filed an application pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) seeking judicial review of a decision of the second respondent (the Tribunal) made on 25 February 2020 (application). By that decision, the Tribunal affirmed a decision of the delegate of the first respondent (the Minister) dated 21 December 2018 to cancel the first applicant’s Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal also found it had no jurisdiction with respect to the second applicant (Tribunal’s decision).
The Minister opposes the application. I heard the application on 28 August 2024. The applicants appeared via video link at their request from a location overseas. For the reasons that follow, the application is dismissed.
BACKGROUND
The applicants are husband and wife. Both are citizens of Pakistan. The first applicant was granted the visa on 30 June 2015 based on a nomination by an approved standard business sponsor Awasum Pty Ltd for the role of Sales and Marketing Manager (applicant) (Court Book (CB) 3). Awasum imported and sold tractors and agricultural implements (CB 75, 140). The second applicant was granted a visa as a member of the applicant’s family unit. The applicant’s visa was subject to mandatory condition 8107: see cl 457.611(2) of Sch 2 and cl 8107 of Sch 8 to the Migration Regulations 1994 (Cth) (the Regulations).
Investigation of applicant’s sponsor
On 4 December 2017, the then-named Department of Immigration and Border Protection (the ABF) commenced monitoring Awasum (CB 2). ABF officers visited Awasum’s head office located in Campbellfield on that day. The business was closed and the external gates shut. They also visited a site of a business Your Local Garage Pty Ltd located in Coburg North. While there they interviewed an employee of the business who told the officers the applicant works at the Coburg North site every day and manages the Coburg North garage. The employee stated the applicant “does everything from organising parts, purchasing, ordering, salaries everything, all the things, he is the one.” The employee also advised the applicant takes payments and provides invoices and directs employees what work they are required to complete on a daily basis. During that visit, one of the employees also asked the applicant to contact a client about the sale of a vehicle (CB 3).
On 5 December 2017, ABF officers met with the applicant at the Campbellfield site to interview him about his role as a Sales and Marketing Manager for Awasum. The ABF officers requested documentary evidence capable of confirming he was undertaking that role both during the interview and when they spoke with him by telephone the following day. That information was not provided when the ABF officers were at the Campbellfield site and was not subsequently provided by the applicant. ABF also considered shipping records which showed Awasum had not received any imports of tractors since 2012. The applicant also claimed he had sold 34 tractors in 2017 and was expecting a consignment of 8 tractors to arrive in January 2018. No evidence was produced by Awasum to support that claim (CB 3-6).
Other information obtained by ABF, including an organisational chart submitted to it on 7 July 2016, identified that the applicant held a role as ‘Director of General and Administrative Personnel’ for Satzas Pty Ltd. Further documentation submitted to the Department in 2016 and 2017 showed that the applicant was a former Director of Satzas (CB 4-5).
In light of the information obtained during the course of its investigation of Awasum, ABF considered they had reason to believe that Awasum had failed to comply with its sponsorship obligations in breach of reg 2.89 of the Regulations by failing to ensure the applicant works or participates in his nominated occupation, program or activity (in beach of reg 2.86) (CB 3-5) and by providing false or misleading information to the Department (in breach of reg 2.90). The latter allegation was based on the information provided by the applicant during ABF’s investigation “as representative” of Awasum (CB 5-6).
On 16 January 2018, a letter was sent by ABF to Awasum via its migration agent providing notice that a delegate of the Minister was considering taking action under s 140M of the Act (CB 1-8) (NOITTA). Awasum was given 14 calendar days to respond to the NOITTA.
On 2 February 2018, Awasum’s legal representatives provided a response to the NOITTA (CB 10-16) (the response). The response noted they had not been provided with copies of the site visit, interview and telephone discussion notes, shipping records and other documentation referred to in the NOITTA. A Freedom of Information (FOI) request had been made but not yet determined. A request was made for the decision to be deferred to provide Awasum an opportunity to provide a further response following review of that information once received (CB 10-11; 14-16).
The response explained that Awasum, Your Local Garage and another entity, CRM Properties Services Pty Ltd, were businesses operated by the Naqvimam Family Trust. It was also explained that Satzas had previously operated within the Trust structure until it was sold to a new owner in September 2016 (CB 12-13). The response enclosed a form 956 (CB 17-19), the Trust Deed (CB 20-42), and ASIC searches for Awasum, Your Local Garage, CRM and Satzas (CB 43-61) in support of the submissions. Against this background, it was submitted these businesses were “associated entities” within the meaning of reg 1.03 of the Regulations and s 50AAA of the Corporations Act 2001 (Cth). It was submitted that condition 8107 permitted a Subclass 457 visa holder to work for “an associated entity” of the standard business sponsor: cl 8107(3)(a)(ii)(B) of Sch 8 to the Regulations. It was also submitted the work undertaken by the applicant for the associated entities was as a Sales and Marketing Manager. On that basis, it was submitted that Awasum had not breached reg 2.86 as the applicant was working in the nominated occupation for the sponsor and its associated entities. Alternatively, the response submitted Awasum required access to the requested documentation in order to address the reg 2.89(3) criteria that must be taken into account when determining what, if any action, to take under s 140M of the Act and sought deferral of the decision to enable that to occur (CB 14-15).
In respect of the allegation of provision of false or misleading information, it was submitted it was contrary to the interests of natural justice to require Awasum to respond in a short timeframe without being provided the information forming the basis of the allegations. It was submitted this allegation could not be upheld without allowing Awasum access to the evidence in the Department’s possession and relied upon in the NOITTA.
On 9 February 2018, ABF sought further clarification and evidence from Awasum’s legal representatives to show that the businesses were associated entities. As at 20 March 2018, ABF had not received a response to that request (CB 114). On 22 February 2018, five documents were released to Awasum based on its FOI request (CB 114).
ABF’s sponsor decision
On 20 March 2018, ABF advised Awasum in a notice of decision that it did not consider the other businesses to be associated entities, meaning that the work undertaken by the applicant for those businesses constituted a breach of reg 2.86 of the Regulations. Further, even if the businesses established they were associated entities of Awasum, ABF advised it was not satisfied the applicant was performing the duties of a Sales and Marketing Manager in those businesses (CB 114-5). ABF further advised it considered Awasum had provided false or misleading information (CB 115-116). Consequently, ABF considered there had been a breach of both regs 2.89 and 2.90 of the Regulations (CB 116).
ABF’s notice of decision set out its consideration of the reg 2.89(3) and reg 2.90(3) criteria (CB 116-119), ultimately deciding to bar Awasum for five years from making future applications for approval as a standard business sponsor pursuant to s 140M(2) of the Act.
Cancellation of applicants’ visas
On 5 December 2018, the then-named Department of Home Affairs emailed the applicant enclosing notice of its intention to consider cancellation of his visa pursuant to s 116 of the Act (NOICC). The NOICC outlined that information before the Department appeared to indicate the applicant had not complied with cl 8107(3)(a)(i) of the Regulations. That information indicated the applicant was working in the position of Director of Satzas and of Your Local Garage outside of his nominated occupation. The applicant was provided an opportunity to respond to the NOICC within five working days after he was taken to have received the letter (CB 127 -134).
On 10 December 2018, the applicant sought further time to respond to the NOICC (CB 135). That request was granted (CB 137).
On 19 December 2018, the applicant provided a response to the NOICC. In that response he explained the structure of the businesses he was working with, the trading history of Awasum, Your Local Garage and CRM, and his role within those businesses. He explained he had lived in Australia since 2003 and made his home here. He explained that “under the banner of Awasum we currently have 16 employees working for us. If we have to leave we will be closing our businesses which will be a cause of hardship for them too.” He provided a copy of Your Local Garage’s Coburg lease, a letter from his accountant confirming the Trust structure, a copy of the Trust Deed and copy of Commonwealth Bank account transaction statements with his response (CB 138-195).
On 21 December 2018, a delegate of the Minister wrote to the applicant advising that his visa had been cancelled and provided reasons for their decision (CB 197-212) (delegate’s decision). On 24 December 2018, the applicants applied to the Tribunal for a review of the cancellation decision (CB 213-218).
Application for merits review
On 28 December 2018, the Tribunal wrote to the applicants acknowledging receipt of their review application. On 31 May 2019, the Tribunal wrote to the applicants inviting them to appear to give evidence and present arguments relating to the issues arising in their case on 19 June 2019 (CB 249-254).
On 6 June 2019, the applicants sought an adjournment of the Tribunal hearing on medical grounds (CB 258-261). The Tribunal agreed to that request (CB 263).
On 7 November 2019, the Tribunal wrote to the applicants. It advised it had no jurisdiction with respect to the second applicant as her visa was automatically cancelled as a consequence of the cancellation of the applicant’s visa. It then set out the background to the cancellation of the applicant’s visa. It noted the visa cancellation ground set out in s 116(1)(g) of the Act, namely that a prescribed ground for cancelling a visa applies to the holder, appeared to be relevant to his case. The prescribed ground identified was that set out in reg 2.43(1)(l)(iv) of the Regulations which provides:
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
……
(l) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor) - that:
……
(iv) the sponsor has been cancelled or barred under section 140M of the Act.
The Tribunal noted that ABF decided on 20 March 2018 to bar Awasum for five years, enlivening consideration of reg 2.43(1)(l)(iv) and s 116(1)(g). It noted that if it relied on this information in making its decision, it may affirm the cancellation decision made on 21 December 2018.
The letter also identified that the visa cancellation ground in s 116(1)(b), namely that a holder has not complied with a condition of the visa, also appeared to be relevant in light of the information about the applicant’s involvement with Satzas and Your Local Garage. The letter set out that the information showed the applicant owned and operated Satzas and Your Local Garage at a time when he was the holder of the visa. It noted that if it relied on that information in making its decision it may find that the applicant did not comply with condition 8107(3)(a)(i) and may affirm the cancellation decision. Further, the letter also referred to information concerning the operation of the Trust and the shareholdings in Awasum, Satzas, Your Local Garage and CRM. It was said that information established that Awasum had been owned by the second applicant, not the Trust. It was also said to show that the applicants as trustees of the Trust did not hold their shares in the companies on trust for the Trust. The Tribunal advised this was relevant to the review because the business arrangements did not appear to support the argument that the businesses were associated entities within the meaning of s 50AAA of the Corporations Act2001 (Cth). The Tribunal further advised that if it relied on this information, it may find that the applicant worked in a position in Satzas and Your Local Garage, that those businesses were not businesses of Awasum or its associated entities and may affirm the cancellation decision.
Against that background, the Tribunal invited the applicant to give comments on or respond to the information set out in the letter in writing. More particularly, the applicant was invited to provide the following information in writing:
•Information that shows while you held the 457 visa granted 30 June 2015, Satzas Pty Ltd, Your Local Garage Pty, and CRM Property Services Pty Ltd had been associated entities of the sponsor Awasum Pty Ltd as defined. Note that associated entity of a person is defined in the Migration Act as an entity that is an associated entity of the person under section 50AAA of the Corporations Act 2001.
•Information about your current work and businesses in Australia.
The letter indicated that the comments or response and information should be received by 21 November 2019 (CB 293-300).
On 21 November 2019, submissions and supporting documentation was provided to the Tribunal by migration agents appointed to represent the applicants. Those submissions largely replicated the response to the NOICC provided to the Department on 19 December 2018 (CB 303-319).
On 12 December 2019, the Tribunal wrote to the applicants inviting them to appear before it to give evidence and present arguments relating to the issues in their case on 7 January 2020 (CB 320-329). A hearing response form was provided to the Tribunal together with an agent appointment form on 6 January 2020 indicating the applicants would be represented by their migration agent during the hearing (CB 330-333).
The Tribunal hearing took place on 7 January 2020. The Tribunal’s hearing record records that the applicants’ migration agent attended, and that receipts and financial statements were received. The hearing commenced at 2.07pm and concluded at 4.22pm. The hearing record also records that the applicant/representative was to provide information/comments/response in writing by 4 February 2020 (CB 335-336). The additional documents provided during the hearing were balance sheets for Awasum, Your Local Garage and Satzas as at 30 June 2016 (CB 337-340).
On 4 February 2020, the applicants’ migration agent provided to the Tribunal a payroll statement for December 2019, a letter of support from the applicant’s sister and copies of bank statements for Your Local Garage and CRM (trading as Fantastic Cleaning Melbourne) (CB 341-369). In a separate email of the same date, the applicants’ migration agent sought further time to provide financial statements and an accountant’s letter as the company’s accountant had just returned from holidays (CB 370). On 10 February 2020, financial statements were provided to the Tribunal by the applicants’ migration agent (CB 392-399). They comprised balance sheets to 30 June 2017 of Satzas, Your Local Garage and Awasum.
On 25 February 2020, the Tribunal affirmed the decision to cancel the applicant’s visa and determined it had no jurisdiction with respect to the second applicant (CB 401-420). The applicants were notified of the decision by email dated 27 February 2020 (CB 400).
THE TRIBUNAL’S DECISION
The Tribunal identified the applicant’s visa had been cancelled on the basis he was in breach of condition 8107(3)(a)(i) as he was not working in his nominated position. The Tribunal identified the relevant issue was whether that ground for cancellation was made out, and if so, whether the applicant’s visa should be cancelled (CB 406, [2]). The Tribunal also noted its jurisdiction was only engaged in respect of the delegate’s decision concerning the applicant as no decision was involved in the cancellation of the second applicant’s visa because of the operation of s 140(1) of the Act (CB 406, [3]).
The Tribunal set out the history leading to the grant of the applicants’ visas (CB 407-408, [11]-[17]). It noted Awasum’s nomination of an occupation of Sales and Marketing Manager (ANZSCO 131112) was ultimately approved on 30 June 2015 (CB 408, [17]). The Tribunal set out the following ANZSCO information relevant to the nominated occupation (CB 407-408):
14. The ANZSCO Dictionary shows that Unit group 1311 ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations. Tasks include:
•directing the development and implementation of sales strategies and setting sales targets in order to maximise an organisation's sales and customer loyalty
•directing the development and implementation of strategies to promote an organisation's goods and services to as many people as possible
•directing the development and implementation of strategies to generate increased consumption of an organisation's goods and services through the creation and reinforcement of 'brand image' or 'brand loyalty'
•directing the development and implementation of strategies to build and maintain an organisation's image and reputation with its customers, investors and the wider public
15. Additionally, the ANZSCO Dictionary shows a Sales and Marketing Manager [131112]:
Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation. ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.
Skill Level: 1, Specialisations: Business Development Manager; Market Research Manager
The Tribunal outlined the information before it which showed the applicant was performing tasks and work for Satzas while holding the visa (CB 408, [18]). That information included an ASIC extract showing Satzas had been registered on 18 May 2012 with the applicant as a Director and Secretary. The applicant notified ASIC on 6 September 2016 he ceased those roles on 1 July 2014. The Tribunal noted that as the notification was only received by ASIC on 6 September 2016 it took effect from that date (CB 408-409, [19]). The Tribunal referred to evidence relating to Satzas’s migration dealings with the Department where documents dated 5 May, 21 June and 6 July 2016 referred to the applicant as the Director of the business (CB 409, [20]).
The Tribunal referred to the response to the NOICC where the applicant claimed to have only been appointed as Director Sales and Marketing to Satzas, CRM and Your Local Garage, and to have never been an owner or to have owned any shares in those businesses which he says were owned by “Awasum/Trust”. The applicant claimed when he signed documents of behalf of Satzas as Director he did so as he was Director Sales and Marketing. He claimed to have been working as a Sales and Marketing Manager for Awasum, including when it expanded its operations to include CRM and Your Local Garage (CB 409, [21]).
The Tribunal referred to the applicants’ response to its s 359A letter referred to at [21]-[24] above (410, [22]). It was noted the response received largely reflected the information earlier provided. In summary, the applicants claimed:
·the Trust was a family trust over Awasum, Satzas, Your Local Garage and CRM;
·Satzas, Your Local Garage and CRM were associated entities of Awasum;
·the applicant’s tasks in each of the businesses met the description of sales and marketing manager including planning, organising, controlling, and coordinating sales and marketing activities and performing sales, marketing and business development duties;
·the applicant’s signing of Satzas documents in 2016 was incidental as he was merely representing the business rather than working within it;
·the Tribunal should disregard the responses provided by the mechanics during the ABF investigation as they had little knowledge of his tasks and duties;
·Awasum held the leases to Your Local Garage’s Coburg Office and the Campbellfield Office.
The Tribunal set out other evidence it received from the applicants which it summarised as including the following:
•Accountant’s letters dated 10 July 2019 and 14 February 2018 which stated Awasum Pty Ltd formed part of a trust structure with Your Local Garage Pty Ltd and CRM Property Services Pty Ltd. Satzas Pty Ltd had also been part of the trust structure until it was sold to a new owner in approximately September 2016.
•Profit and loss statements for Awasum Pty Ltd for 2016 and 2017 that showed in the 2016 financial year loans of $65,000 to Your Local Garage Pty Ltd and $100,000 to Satzas Pty Ltd.
•Profit and loss statements for Your Local Garage Pty Ltd and Satzas Pty Ltd for 2016 and 2017 that showed loans from Awasum Pty Ltd as a liability.
•Bank account details for the businesses, including for CRM Property Service, and sales transactions relating to Sibia Palace.
•A lease concerning a Coburg property, signed on 1 August 2016. The document was executed by Your Local Garage Pty Ltd (applicant signed as Sole Director & Sole Company Secretary) and Awasum Pty Ltd (second applicant signed as Sole Director & Sole Company Secretary). Guarantors were the applicants.
•ASIC extracts ostensibly from 8 December 2017, and single page, that show:
•Awasum Pty Ltd, the secondary 457 visa holder had been the sole shareholder, Director and Secretary.
•Your Local Garage Pty Ltd, the applicant had been the sole shareholder, Director and Secretary.
•CRM Property Services Pty Ltd, the applicant had been the sole shareholder, Director and Secretary.
•Satzas Pty Ltd, Mr Dogar had been the sole shareholder, Director and Secretary.
The Tribunal found favourably to the applicants that Satzas (until 6 September 2016), Your Local Garage and CRM were each associated entities of Awasum. Consequently, the Tribunal found the applicant had not breached condition 8107(3)(a)(ii) which required that he must work only in a position in the business of the sponsor or an associated entity of the sponsor (CB 411-412, [27]-[32]).
The Tribunal, however, made the following adverse findings:
·The applicant did not cease to be a Director of Satzas on 1 July 2014 but had been working as its managing director who had been organising all of the business of the company in May, June and July of 2016. As such, he did not work only as a Sales and Marketing manager so did not comply with condition 8107(3)(a)(i) (CB 412-413, [33]-[35]);
·The applicant in signing documents as a Director of Satzas in October and November of 2017 was engaged in work for Satzas when it was no longer an associated entity of Awasum, thus breaching condition 8107(3)(a)(ii)(B) (CB 413, [36]-[39];
·The applicant was acting as a Managing Director of Your Local Garage, organising all of the business of the company, and not merely as a Sales and Marketing Manager, thus breaching condition 8107(3)(a)(i) (CB 413-415, [40]-[49]).
The Tribunal found therefore that s 116(1)(b) of the Act was engaged, enlivening the power to cancel the applicant’s visa. The Tribunal also noted that s 116(1)(g) was engaged as reg 2.43(l)(l)(iv) of the Regulations provided that in the case of the holder of a Subclass 457 visa who is a sponsored person in relation to a standard business sponsor, the barring of a sponsor pursuant to s 140M of the Act constituted a prescribed ground for the purposes of that section (CB 415-416, [50]-[55]). Neither of those grounds required mandatory cancellation. Consequently, the Tribunal considered whether it should exercise its discretion to cancel (CB 416, [56]).
The Tribunal noted there were no mandatory considerations specified in the Act or Regulations. The Tribunal stated it had regard to the circumstances of the case, the matters raised by the applicant and those in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ (CB 416, [57]). Those considerations and the Tribunal’s conclusions were as follows:
(a)The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia: The Tribunal noted the purpose of the applicant’s stay in Australia was to work as a Sales and Marketing manager for Awasum. That nomination and the conditions of his visa had not permitted him to work in the role of managing director for Your Local Garage, CRM and Satzas. The Tribunal also noted the visa would have ceased on 30 June 2019 in any event. Given that the sponsor had been barred, the applicant could not again be nominated for an occupation by his former sponsor until after 20 March 2023. This factor weighed towards cancellation (CB 417, [59]-[60]);
(b)Circumstances in which ground of cancellation arose; The extent of compliance with visa conditions: The Tribunal considered the extent of the applicant’s non-compliance with the visa conditions was significant and ongoing. It also noted the circumstances in which the ground for cancellation arose were within the applicant’s control, particularly in light of the close personal and business bonds between the married applicants (CB 417, [61]-[62]);
(c)Degree of hardship that may be caused (financial, psychological, emotional or other hardship); Whether there would be consequential cancellations under s 140; Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation; If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia: The Tribunal found that cancellation would not lead to removal from Australia in breach of its non-refoulement obligations. It acknowledged the consequential cancellation of the second applicant’s visa but noted she held her visa on the basis of being a member of the applicant’s family unit. It was noted she would be able to return to Pakistan with her husband. The Tribunal accepted there would be significant financial, psychological, and emotional hardship caused if the applicants were required to depart Australia as they would be unable to operate their principal business or any of its associated entities from outside of Australia. The Tribunal acknowledged their financial loss would potentially be high. The Tribunal also noted the length of stay of both of the applicants in Australia and that they considered themselves part of the Australian community. It noted, however, that the visa was of limited duration and did not create an expectation of a permanent or extended life in Australia or an expectation of ongoing financial or other advantage by reason of being in the country. Taking all of those matters into account, the Tribunal placed limited weight on the hardship that may be caused to the applicants and considered it had limited weight against cancellation (CB 417-418, [66]);
(d)Past and present behaviour of the visa holder towards the Department: the Tribunal noted the applicants have been responsive to the Tribunal's requests and invitations and the delegate stated there had been no adverse information before the Department relating to the applicants’ past behaviour (CB 418, [67]);
(e)Whether there are mandatory legal consequences: the Tribunal noted that in the absence of a successful outcome, the applicant would not have authority to remain in Australia. It also noted there were limitations to alternative visa applications that could be made by the applicant whilst onshore. Public Interest Criterion 4013 was also considered which provides that the applicant may not be granted a temporary visa for three years from the date of cancellation. The Tribunal, however, noted these are the intended legislative consequences of cancellation and consistent with the objectives of the migration programme. The Tribunal was not satisfied these consequences were such that the visa should not be cancelled (CB 418, [68]-[71]);
(f)Any other relevant matters: The Tribunal accepted that if the visa is cancelled it would have an adverse effect on the businesses operated by the applicants and on their employees. The Tribunal also referred to a letter of support authored by the applicant’s sister. That letter described the financial and emotional support given to her by the applicants and the close relationship they have with her children. The applicant referred to having a business in the UK which is managed by his sister-in-law. He told the Tribunal there is an economic discrepancy between Pakistan and Australia and referred to corruption in Pakistan. The Tribunal stated, however, that balanced against these sorts of matters is that the purpose of the applicant’s continued stay in Australia pursuant to the visa was to fill a particular approved position for a particular approved sponsor (CB 419, [72]-[77]).
The Tribunal concluded that the visa should be cancelled having considered and weighed all of the relevant circumstances in the case (CB 419, [78]).
APPLICATION FOR JUDICIAL REVIEW
On 27 March 2020, the applicants filed an application for judicial review of the Tribunal’s decision (CB 421-427). An affidavit in support of the application was also filed (CB 428-522). It repeated the grounds of review set out in the application and attached the Tribunal and delegate’s decision records and some of the documentary evidence which was before the Tribunal.
The substantive grounds of review set out in the application are lengthy. Ground 1 is not a ground of review but sets out that the Tribunal affirmed the cancellation decision. In substance, the remaining grounds assert the following:
Grounds 2 and 13: the Tribunal failed to apply the rules of procedural fairness, failed to consider all relevant considerations, came to an incorrect conclusion and affirmed the decision to cancel the visa. No particulars of procedural unfairness are cited in either ground;
Ground 3 and 4: the Tribunal “erred and oversighted” the applicant’s explanation and evidence relating to his role as a Business Development/Sales and Marketing Manager in all of the associated entities of the sponsoring employer when finding he did not comply with the conditions of his visa by working as a managing director of Satzas and Your Local Garage and working for Satzas when it was no longer an associated entity of the Awasum. The Tribunal erred in assuming his title was managing Director, when it was Director Sales and Marketing;
Ground 5 and 6: the Tribunal “erred and oversighted” the applicant’s explanations for signing migration dealings on behalf of Satzas as Director in concluding that he held himself out as a managing Director of Satzas, had not merely undertaken the tasks of Sales and Marketing Manager but remained the managing director who had been organising all of the business of the company;
Ground 7: in concluding that the applicant did not work only as a Sales and Marketing manager, therefore failing to comply with condition 8107(3)(a)(i), the Tribunal failed to understand the role of Sales and Marketing Manager and reached the adverse conclusion that he did not work only as a Sales and Marketing manager without any thoughtful analysis of his role and job duties;
Ground 8 and 9: the Tribunal erred by “blindly” relying on the statements of two mechanics, who had no reliable knowledge of how the management functioned, as showing the applicant was acting as a managing Director of Your Local Garage and not a Sales and Marketing Manager and that in that period he remained the sole managing Director who had been organising all of the business of the company. The Tribunal also erred by not giving weight to the applicant’s arguments that the workers’ responses should be disregarded.
Grounds 10, 11 and 12: the Tribunal disregarded evidence and submissions regarding the negative impact of cancellation of the visa on the businesses operated by the applicants and the workers employed by those businesses without providing any logical reasoning.
On 18 April 2024, orders were made by a Registrar of this Court in anticipation of the matter being listed for hearing. Those orders included that the applicants file and serve on or before 16 May 2024 any amended application with proper particulars of the grounds of the application, written submissions and any additional evidence on which they sought to rely. No further materials were filed by the applicants in accordance with those orders.
The Minister filed written submissions on 30 May 2024. The Minister also filed a list of authorities on 26 August 2024.
Hearing on 28 August 2024
The application came before me for hearing on 28 August 2024. The applicants were unrepresented. Mr McDonald appeared for the Minister. The applicants had received the Minster’s written submissions and the Court Book. As they were appearing remotely, the Court took some time to ensure they had access to those materials electronically during the hearing.
The materials before the Court in respect of the application are the applicants’ application for review filed 27 March 2020, a Court Book filed on 1 September 2020 (marked Exhibit 1R), and the Minister’s written submissions filed on 30 May 2024. The affidavit of the applicant filed in support of the application repeated the grounds of review set out in the application and attached a number of documents which are already contained in the Court Book.
Noting the applicants are unrepresented, I explained the Court’s role was limited to examining the decision the subject of the application, namely its decision affirming the delegate’s decision to cancel the applicant’s visa and its associated decision that it had no jurisdiction to review the cancellation of the second applicant’s visa. I explained that the Court’s role was to decide whether the Tribunal made a serious legal or jurisdictional error when reviewing the delegate’s decision. I also explained the Court was not able to reconsider the merits of the decisions to cancel their visas.
CONSIDERATION
The Court’s task in this matter is to review the lawfulness or legality of the Tribunal’s decision. The Court does not consider the merits of the decision, and it is not able to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]. The merits of the applicants’ claims are for the repository of the relevant power alone (in this case the delegate and the Tribunal): Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
Relief can only be granted to the applicants if they establish the Tribunal’s decision is affected by jurisdictional error. The High Court recently explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law… no decision at all’ and is in that sense ‘void’”. The High Court noted jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified by the High Court at [3] as including:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)in some cases, making an erroneous finding or reaching a mistaken conclusion;
(h)failing to observe some applicable requirement of procedural fairness.
Cancellation – statutory framework
Section 116 of the Act deals with the power to cancel visas. This case does not concern circumstances where any mandatory cancellation arises. The Tribunal found that the grounds set out in s 116(1)(b) and (g) were engaged. They are:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…..
(b) its holder has not complied with a condition of the visa; or
…
(g) a prescribed ground for cancelling a visa applies to the holder.
…
(2) The Minister is not to cancel a visa under subsection (1)… if there exist prescribed circumstances in which a visa is not to be cancelled.
The prescribed grounds for the purposes of s 116(1)(g) of the Act are set out in reg 2.43(1)(l)(iv) of the Regulations which relevantly provided at the time of the Tribunal’s decision:
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
…
(I) in the case of a holder of a Subclass 457 (Temporary Work (Skilled)) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor ….. (the sponsor) – that:
…
(iv) the sponsor has been cancelled or barred under section 140M of the Act
The particular condition the Tribunal found was breached by the applicant was condition 8107(3)(a). Subclause 457.611(2) of Sch 2 to the Regulations provided that condition 8107 must be imposed if the visa applicant satisfies the primary criteria as the applicant did in this case. Condition 8107(3)(a) relevantly provided (emphasis added):
(3) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4) [as in force before 18 March 2018]:
(a) the holder:
(i) must work only in the occupation listed in the most recently approved nomination for the holder; and
(ii) unless the circumstances in subclause (3A) apply:
……
(B) if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor—must work only in a position in the business of the sponsor or an associated entity of the sponsor;
The terms of condition 8107(3)(a) are clear. A visa-holder must only work in the occupation listed in the approved nomination, not some other position. Further, a visa-holder may only work in the business of the sponsor or an associated entity of the sponsor. The condition does not permit a visa-holder to work in the occupation listed in the approved nomination and some other occupation, even for the sponsor or its associated entity. Further, it does not permit a visa-holder to work for the sponsor or its associated entity and some other business. Consequently, working in a role which does not meet the description of the occupation listed in the approved nomination or working for another employer is a breach of condition 8107(3)(a).
Applicants’ submissions
The applicant addressed the Court on behalf of both applicants. The submissions did not always directly address the grounds set out in the application.
In respect of ground two which generally alleged the Tribunal failed to apply the rules of procedural fairness in affirming the cancellation decision, I was told that nothing went wrong during the Tribunal hearing. The applicant described receiving a “very good hearing” and thought the Tribunal member seemed to agree with what they were saying. One problem he identified was that the Tribunal provided his lawyer an opportunity to provide further written submissions after the hearing. Those submissions merely copy and pasted the response provided to the Department in relation to the NOICC and added nothing new.
The applicant’s primary concern was what he regarded as the failure of the Tribunal to recognise the context in which Awasum operated. He argued the Tribunal had considered his case in a way that would have been applicable to a large company operating with multiple staff. Given the nature of the business, namely that it was a small organisation, the applicant explained it was not open to him to refuse to do certain tasks. For example, he stated that if someone cleans the kitchen during the course of their employment, it does not mean they are a cleaner. Similarly, he would not refuse to deal with a human resources issue if it arose while undertaking his nominated duties. It was not a situation where the business was of a size where it could afford to employ a range of people to undertake distinct tasks.
The applicant accepted the staff interviewed by ABF considered him to be the boss. He reiterated his job was that of a sales and marketing manager and that entailed him being the head of the office and having to give directions from time to time. Ultimately, his wife was the director of the company. The applicants, together with their accountant, formed the leadership team of the businesses. He also described his wife as the trustee of everything. The applicant argued that the visa conditions did not stop him from being the director of a company. He understood it to mean it only stopped him from working for payment in some other role. He claimed not to have received wages for any other tasks undertaken. He acknowledged he had invested in the businesses having used an inheritance to finance their set up, but only gave direction in respect of sales and marketing. As part of the leadership team, he sat together with his wife and accountant and made plans. He denied this constituted working in another role.
As to the Tribunal’s finding that the applicant worked for Satzas after it was sold, he stated he had only signed one document. As to the organisational chart which described him as a Director, he said the business had kept using it and he had not seen the document himself. Again, he asserted that referring to himself as a Director in a document does not mean he was working for that business. He claimed to have received no benefit for doing so.
The applicant criticised the Tribunal’s decision to the effect that it made no findings but expressed beliefs as to the state of affairs. He also accused the Tribunal of copying and pasting the delegate’s decision as it resulted in exactly the same outcome which was not what he was expecting.
The applicant also explained that the visa cancellation had a significant impact. It has effectively led to the loss of the businesses and significant financial losses for the applicants. The applicants have left the country and said they will not be coming back. He is pursuing the judicial review because he wants to clear his name. He has had three heart attacks in the period since the Tribunal’s decision. He told me he has lost his country. He submitted the Tribunal’s decision reflected a lack of sympathy for his employees and was heavy handed.
Ground three and four
These grounds assert the Tribunal overlooked the applicant’s explanation and evidence in arriving at its conclusions. The Minister submits this argument invites merits review. To the extent the ground asserts there was a failure to consider critical evidence, the Minister submits the Tribunal’s decision reflects it considered the applicant’s explanation of his role at [34], [36] and [45]. That engagement with the evidence was directed at identifying what functions the applicant was performing in the businesses. The Tribunal rejected that evidence in light of the documentary evidence where the applicant signed on behalf of those companies as a Director and information from employees that he was performing the role of managing director. In respect of the arguments raised about the size of the business, the Minister submits those matters are only relevant to the exercise of discretion and not the interpretation of the scope of condition 8107(3).
The Minister’s submissions are accepted. The Tribunal’s decision sets out in detail the evidence provided by the applicant, including the documentary evidence. It engaged with that evidence but ultimately found that it did not accept the applicant’s explanation (CB 412-415, [33]-[34], [36]-[38], [40]-[49). As the plurality of the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 explained at [24] (footnotes omitted), the Tribunal must:
read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker.
In my view, this is precisely what the Tribunal did in this case. The Tribunal’s conclusions were not outside the bounds of “rationality and reasonableness”: Plaintiff M1/2021 at [25]. They were open on the evidence.
These grounds are not made out.
Grounds five and six
These grounds concern the Tribunal’s finding that the applicant held himself out as a Director of Satzas. The applicants complain the Tribunal overlooked their explanation and evidence in rejecting the applicant’s claim that he was merely representing Satzas when signing documents.
The Minister submits these grounds also sound in impermissible merits review. The Minister submits the Tribunal’s statement of decision and reasons at [22] and [34] reflects it considered the applicant’s evidence but did not accept it.
Again, the Minister’s submissions must be accepted. The gravamen of these grounds is similar to that of grounds three and four. I agree that the Tribunal’s decision reflects an active engagement with the evidence provided by the applicants and a rational rejection of it based on all of the material before it, including the applicant’s explanations.
These grounds are not made out.
Ground seven
This ground asserts a failure to give thoughtful analysis of the applicant’s role and duties in reaching the adverse conclusion that he breached condition 8107(3)(a)(i).
The Minister submits this fails at a factual level as it is clear the Tribunal had regard to the ANZSCO description of a Sales and Marketing Manager at [14]-[15] of its decision. Further, the Tribunal considered the applicant’s explanation of his role and duties but also considered what he was actually doing, including in the associated entities of Awasum. Ultimately, the Tribunal rejected the applicant’s explanation in light of the evidence.
The Minister’s submissions as to these grounds must also be accepted. There is no error discernible in the Tribunal’s approach to the task of identifying what work the applicant was in fact undertaking. The conclusion reached that the applicant was undertaking tasks outside of his nominated occupation was one that was open on the evidence before the Tribunal.
This ground is not made out.
Grounds eight and nine
This ground asserts the Tribunal erred in “blindly” relying on the statements of the Your Local Garage employees obtained during the ABF investigation in circumstances where they had no real knowledge of the true nature of the applicant’s role in the business. Ground nine further explains that the applicant was the most senior officer there so the workers wrongly thought he ran the business. During the hearing of this application, the applicant also referred to the circumstances in which this information was obtained. He described the relevant employees as not speaking English well. He also explained that all immigrants are fearful of the Department. The applicant was present when the interviews with the employees took place. Notably, he has not disputed the ABF’s account of what they were told by the employees but argues their statements were unreliable.
The Minister submits these grounds again engage in impermissible merits review. The Minister submits it was the Tribunal’s task to consider the evidence and submissions and reach a conclusion. It did this at [22] and [44] and gave reasons at [46]-[47] for not accepting the applicant’s submissions as it considered the employees’ accounts were consistent with other evidence including a lease agreement which the applicant signed as Sole Director and Sole Company Secretary.
I accept the Minister’s submissions. The Tribunal did not overlook the applicant’s explanation but rejected it. It gave reasons for doing so by reference to other evidence which corroborated the view expressed by the employees that the applicant was responsible for the overall operation and management of Your Local Garage. That conclusion was open on the evidence.
These grounds are not made out.
Grounds ten, eleven and twelve
These grounds are directed at the second stage of the cancellation process which involves the exercise of discretion. It is asserted the Tribunal disregarded the applicants’ evidence of the impact of cancellation “without providing any logical reasoning”.
The Minister submits there is no basis to assert the Tribunal’s reasoning, or its decision to cancel the visas, is tainted by illogicality, irrationality or unreasonableness. It is submitted the applicants must demonstrate the presence of "extreme" illogicality or irrationality, and not merely that reasonable minds may come to different conclusions: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [47] per Griffiths, Perry and Bromwich JJ. The Minister submits the Tribunal accepted at [75] there would be an adverse effect on the businesses operated by the applicants and the workers employed by those businesses. It concluded, however, that factor was outweighed by other relevant factors which led it to conclude the visa should be cancelled taking account of the circumstances as a whole: [78]. Those factors relevantly included that the applicant was on a temporary visa by which his stay in Australia was to fill a particular approved position for a particular approved sponsor: [77]. The Minister submits the Tribunal's reasons present a logical and evident basis for concluding to cancel the visa.
I agree with the Minister’s submissions. The Tribunal’s decision records that consideration was given to a range of factors, including the impact of cancellation. Each of the factors considered were relevant to the task the Tribunal was required to undertake. The Tribunal also accepted the significant impact of cancellation. Its conclusion that this factor was outweighed by other factors was one that was open, logical and reasonably arrived at. That other reasonable minds may differ is not to the point; that is the nature of discretion. The Tribunal clearly gave considerable weight to maintaining the integrity of the migration system, particularly in the context of the temporary Subclass 457 work visa scheme. It was open to the Tribunal to do so. Ultimately, it was for the Tribunal to determine what weight to give to the relevant factors: c.f Plaintiff M1/2021 [24]. “[M]ere preference for a different result, when the question is one on which reasonable minds may come to different conclusions” is not a basis for overturning the Tribunal’s decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at p. 48, per Mason J. In my view, there is no error demonstrated in the Tribunal’s approach to the question of the exercise of discretion.
These grounds are not made out.
Grounds two and thirteen
These grounds in combination allege the Tribunal failed to apply the rules of procedural fairness, failed to consider all relevant considerations, came to an incorrect conclusion and affirmed the decision to cancel the visa. No particulars of procedural unfairness are cited.
The Minister submits there is no basis to assert the Tribunal failed to meet its procedural obligations pursuant to the Act. It invited the applicants to comment on adverse information in accordance with s 359A of the Act. It considered the applicants’ response to that invitation. It invited the applicants to attend a hearing as required by s 360 of the Act. It granted an adjournment when requested. It gave the applicants a further opportunity to provide information and submissions after the hearing. It considered all of that evidence in its decision. As to the complaint raised during the hearing in this Court that the Tribunal copied and pasted the delegate’s decision, the Minister submitted the Tribunal reached a decisively different decision. For example, the barring of Awasum was not referred to by the delegate.
Again, the Minister’s submissions must be accepted. The Tribunal fully complied with its statutory procedural obligations. The applicant concedes he was afforded a fair hearing. That is apparent on the face of the decision and in the careful way the Tribunal set out its concerns in advance of the hearing in its letter of 7 November 2019. It clearly engaged with the applicant’s submissions and evidence. It also reached a different conclusion to the delegate on the question of whether Your Local Garage, CRM and Satzas were associated entities of Awasum, one that was favourable to the applicants. The complaints about the Tribunal’s ultimate conclusion otherwise invites impermissible merits review.
These grounds are not made out.
For completeness, no error has been asserted in respect of the Tribunal’s conclusion it did not have jurisdiction to review the automatic cancellation of the second applicant’s visa. That determination was correct: Farah v Minister for Immigration and Citizenship [2011] FCA 185; at [2] per Jessup J.
Summary
The application fails to identify any jurisdictional error. In addition, I have also carefully considered the materials before me and am satisfied that the Tribunal did not fall into jurisdictional error when affirming the decision to cancel the applicant’s visa.
CONCLUSION
For the above reasons, I dismiss the application.
I will hear the parties as to costs.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 8 October 2024
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