Papavanis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 107
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Papavanis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 107
File number: PEG 149 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 24 February 2022 Catchwords: MIGRATION – Cancellation of a Temporary Business Entry visa – decision of the Administrative Appeals Tribunal – whether the applicants were given a proper opportunity to respond to the NOICC – whether visa Condition 8107(3)(b) had been breached – whether the Tribunal failed to consider the impact of COVID-19 – whether the Tribunal erred by making its decision earlier than the applicants anticipated – whether the Tribunal erred by considering the visa expiry date – whether the Tribunal had jurisdiction in relation to the second, third, fourth and fifth applicants – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 37A, 116, 133, 134D, 140, 348, 351, 476
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth), condition 8107
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Samah v Minister for Immigration [2020] FCCA 2868
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 113 Date of hearing: 21 February 2022 Place: Perth Applicants: In person Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 149 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NIKOS PAPAVANIS
First Applicant
LULJETA PAPAVANI
Second Applicant
NTENISA PAPAVANI
Third Applicant
NTONALNT PAPAVANIS
Fourth Applicant
NTENANTA PAPAVANI
Fifth ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
24 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application be 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 KENDALL:
BACKGROUND
The applicants are citizens of Albania. The first applicant and the second applicant are husband and wife respectively. The third, fourth and fifth applicants are their children (Court Book (“CB”) 256).
On 8 June 2017, the first applicant was granted a Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457) visa (the “visa”) (CB 20-21). The remaining applicants were identified as members of the first applicant’s family unit and granted visas as dependants on 20 February 2018 (CB 26-41). The visas were due to expire on 8 June 2021 (CB 20 & 255).
On 30 June 2020, the Department of Home Affairs (the “Department”) received an email from the first applicant’s sponsor advising that the applicant had ceased employment with the sponsoring company on that day (CB 42).
On 30 November 2020, the Department sent the first applicant a notice of intention to consider cancellation (the “NOICC”) under s 116 of the Migration Act 1958 (Cth) (the “Act”) (CB 49-54). The NOICC advised that, as the period during which the first applicant had ceased employment had exceeded 60 consecutive days, the applicant appeared to have failed to comply with condition 8107(3)(b) of the visa. The first applicant was also advised that this might be a ground for cancelling his visa pursuant to s 116(1)(b) of the Act (CB 50).
At 10.08am on 11 December 2020, the Department received an email from the applicants’ former representative (CB 55-56). That email correspondence:
(a)acknowledged the first applicant’s receipt of the NOICC;
(b)confirmed that the first applicant had “ceased employment on 30 June 2020”;
(c)noted that the first applicant had been looking for a new sponsor but, due to the COVID-19 pandemic, had not found one in his field of “solid plasterer”;
(d)requested that the Department consider “the pandemic and the pace of slow job growth” and grant an extension of time for the first applicant to “find a new sponsor”; and
(e)attached a completed Form 956 document (CB 57-59).
At 11.56am on 11 December 2020, the Department responded to the applicants’ former representative requesting some amendments to the Form 956 document (CB 60-61).
At 12.10pm on 11 December 2020, the applicants’ former representative provided an amended Form 956 document via email (CB 63-67).
On 15 December 2020, further correspondence was exchanged between the Department and the applicants’ former representative regarding the correct email address for future correspondence and further amendments to the Form 956 document (CB 68-80).
On 12 January 2021, a delegate of the first respondent (the “Minister”) cancelled the first applicant’s visa (CB 90-95). As a result, the remaining applicants’ visas were also cancelled pursuant to s 140 of the Act (CB 94).
On 13 January 2021, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 96-99). In that application, details of the applicants’ representative were provided to the Tribunal (CB 98).
On 14 May 2021, the applicants (through their representative) were invited to attend a hearing before the Tribunal scheduled for 10 June 2021 (CB 105-110).
On or about 9 June 2021, the applicants’ representative provided further material to the Tribunal, comprising written submissions, a statutory declaration made by the first applicant, letters of support, a copy of the first applicant’s resume, academic records and information regarding the third, fourth and fifth applicants’ education and schooling, correspondence with the applicants’ former representative and documentation regarding the first applicant’s English language courses (CB 118-242).
On 10 June 2021, first, third, fourth and fifth the applicants attended a hearing before the Tribunal. They were assisted by their representative and an interpreter in the Albanian and English languages (CB 243-246).
On 22 June 2021, the Tribunal affirmed the decision to cancel the first applicant’s visa. The Tribunal also found that it had no jurisdiction in relation to the remaining applicants (CB 254-263).
On 22 July 2021, the applicants sought judicial review of the Tribunal’s decision in this Court (CB 1-7). The applicants filed an affidavit (affirmed by the first applicant on 20 July 2021 and annexing a copy of the Tribunal’s decision) in support of that application (CB 8-17). The application for judicial review is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 10 pages and spans 72 paragraphs.
The Tribunal began by explaining that, under review, was a decision to cancel the first applicant’s visa. The Tribunal noted that the issue in the present case was whether a ground for cancellation had been made out (and whether the visa should be cancelled) (at [1]-[2]). The Tribunal also confirmed that a copy of the delegate’s decision had been provided to it by the applicants (at [4]).
The Tribunal found that it did not have jurisdiction to consider the cancellation of the second, third, fourth or fifth applicants’ visas as no decision had been made in relation to those visas (at [3]).
The Tribunal then outlined the applicants’ migration history, relevant background information and the first applicant’s evidence provided at hearing. The Tribunal noted that:
(a)the first applicant was born in Albania in January 1971 (at [6]);
(b)the first applicant was nominated by an approved sponsor and that nomination was approved on 22 July 2016 (at [7]);
(c)the sponsor advised the Department that the first applicant had ceased employment with the sponsor company on 30 June 2020 (at [7]);
(d)a NOICC was issued by the Department on 30 November 2020 and the applicants’ former representative provided a response on 11 December 2020 (at [8]);
(e)the delegate’s decision states (at [9]):
“The migration agent, acting on behalf of the visa holder, has not addressed whether or not the ground for cancellation exists. The agent provided the following claims:
“Since ceasing employment with the sponsor, the visa holder has been continuously looking for sponsors. However, given the COVID-19 pandemic, he has had no opportunity so far to find a new sponsor in his field which is solid plasterer.
The migration agent requests for a consideration of the pandemic and the pace of slow job growth and therefore, for a consideration of an extension of time in order for the visa holder to find a new sponsor.”
(f)the applicant’s former representative had indicated that all of the applicants would attend the Tribunal hearing. However, the second applicant did not ultimately appear and the third, fourth and fifth applicants were not required to give oral evidence at the hearing (at [10]);
(g)extracted a portion of the applicants’ submissions provided by their former representative (at [11]) which provided:
“Over the course of the last 3 years, the applicant and his family had become accustomed to the Australian lifestyle, and the applicant wanted to continue residing in Australia legally while maintaining all visa conditions on his Subclass 457.
Unfortunately, the sponsor ended the employment and reported the situation to the Department of Home Affairs.
He believes that there may be some miscommunication or confusion as to the status of his employment. The employer was like a friend to Mr. Nikos Papavanis.
The applicant’s employer [sponsor] operating as a sole trader did not provide any termination notice to the applicant-Mr Nikos Papavanis. He last worked for his employer on the 4 June 2020. After this period the employer only advised was that due to the pandemic there was not sufficient work to offer to Nikos.
Mr Nikos Papavanis was understanding in this matter but was very worried about how he will support his family during these periods without any pay. It was very difficult for Nikos and his family to sustain during the pandemic especially without work being given to him.”
(h)the first applicant was unaware that his employment had been terminated and had not spoken with the sponsor (after being told that there was no work available and that he would be contacted if there was work) (at [12]); and
(i)work had decreased due to the pandemic and the first applicant had last attended work on 4 June 2020. He was told he would be contacted if any work was available (at [13]);
(j)the first applicant was not concerned about not hearing from the sponsor and gave vague answers about breaching his obligations and visa conditions, effectively stating that he did not understand the visa terms (at [14]);
(k)it was established that the first applicant arrived in Australia (without his family) as the holder of a tourist visa and “wanted to live and work in Australia”. The sponsor “decided” that the first applicant should remain and work for him (at [15]); and
(l)the first applicant did not speak English and did not understand the visa terms or its obligations (at [16]).
The Tribunal then expressed concerns about the first applicant’s evidence, stating:
17.The answers given orally by the applicant are not plausible as he should have been aware of the conditions of his visa or should have sought advice regarding the situation. The Tribunal does not accept that his migration agent miscommunicated the reality of his situation when the agent responded to the Department on the 11 December 2020.
The Tribunal confirmed that the first applicant appeared at a hearing on 10 June 2021 and that evidence was given by two witnesses [names omitted] (at [18]). The Tribunal noted that the hearing was conducted with the assistance of an Albanian interpreter (at [19]) and that the applicants’ representative also attended (at [20]).
The Tribunal detailed documentary the evidence received prior to the hearing, as follows:
21.Prior to the hearing the Tribunal received a long submission prepared by the representative and the following documents, namely: Statutory Declaration from the applicant, letter from [omitted] confirming his intention to sponsor the applicant, letters from the applicant and his family members, resume, academic reports of his children, evidence of applying for scholarships and correspondence with previous migration agent.
22.In his Statutory Declaration declared on the 9 June 2021 the applicant summarised his case as follows:
1.I was sponsored and was working for [sponsor] under the 457-visa granted on the 8 June 2017.
2.I do not currently work with the above-named employer and have been on a bridging visa waiting for my Administrative Review Tribunal hearing.
3. My 457 visa was cancelled on the 12 January 2021.
4.I am a solid plasterer and I normally work on jobs as directed by my employer. The last day that I have been given work by my employer was 4 June 2020.
5.Due to this notice I seek assistance to request immigration to give me time to find another sponsor, but my visa was later cancelled because I did not give enough reason for them not to cancel my visa.
6.I found the sponsor in the meanwhile and now have the opportunity to be sponsored if my AAT application is successful and I am able to lodge a visa while in Australia.
The Tribunal noted that the first applicant was of the view that his employment had not been formally terminated and he had thus not breached his visa conditions. Further, the applicant claimed that there was a miscommunication with his representative who had “misunderstood what he meant” (at [23]). The first applicant stated (both in writing and orally at the hearing) that he considered that his employment had been “put on hold” rather than terminated (at [24]).
The Tribunal extracted further portions of the submissions provided by the applicants’ representative (at [25]) and confirmed that a delegate of the Minister was satisfied that the first applicant had breached condition 8107(3)(b) of the visa because his employment had ceased for more than 60 consecutive days (at [26]).
The Tribunal confirmed that it had received evidence from two witnesses at the hearing – one who intended to lodge “an application to nominate as a new sponsor” and another who had intended to sponsor the first applicant but was now unable to do so (at [28]). The Tribunal determined that, at the time of the hearing before it, however, there were no pending nomination applications and that the first applicant had been without work for almost a year (at [29]).
The Tribunal explained that, while it was sympathetic (acknowledging that COVID-19 had had an impact on the availability of work), the visa that the first applicant had been granted was for the “purpose of employment with an approved sponsor in a skilled occupation” (at [30]).
The Tribunal then found as follows:
32.Based on the evidence the Tribunal is satisfied that the applicant has breached condition 8107(3) (b) of his temporary Work skilled Visa because the applicant had ceased employment for a period of 60 consecutive days.
The Tribunal went on to consider whether the ground for cancellation existed, noting that a visa may be cancelled under s 116(1)(b) of the Act where compliance with a visa condition has not occurred (and that in this case, the first applicant had ceased employment for a period of more than 60 days) (at [35]).
The Tribunal:
(a)considered that the first applicant should have been aware of the visa conditions and implications (at [36]);
(b)based on the evidence before it, found that the first applicant had ceased employment with the sponsor on 4 June 2020 (at [37]);
(c)did not accept the first applicant’s oral evidence that he did not consider his employment had been terminated and found it unusual that an employer would not contact an employee for a six month period and for an employee to be unaware his contract had been terminated (at [38]-[39]);
(d)was of the view that the oral evidence given by the first applicant about his employment cessation on 4 June 2020 was inconsistent with representations made by his former representative and was not accepted by the Tribunal (at [40]);
(e)considered that the first applicant should have clarified the issue with his employer given his visa conditions (and noting that he could not be unemployed for more than 60 days) (at [41]); and
(f)noted that the matter was being determined approximately one year after the first applicant had ceased his employment and that the first applicant had not worked for an approved sponsor for “in excess of 60 days” (at [42]).
The Tribunal ultimately determined as follows:
43.The Tribunal finds that the period during which the applicant ceased employment exceeded 60 consecutive days. Accordingly, the Tribunal finds that the applicant did not comply with condition 8107 (3) (b).
Noting that the ground for cancellation did not require mandatory cancellation under the Act, the Tribunal proceeded “to consider whether the visa should be cancelled” (at [44]).
In this regard, the Tribunal explained that:
45.There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers.
In relation to the purpose of the first applicant’s “travel to and stay in Australia”, the Tribunal determined that:
(a)the subclass 457 visa was for skilled workers who are sponsored to work in Australia temporarily (at [46]);
(b)the first applicant’s purpose was to stay and work in Australia temporarily as a “solid plasterer” (at [47]);
(c)the first applicant’s employment ceased on 4 June 2020 due to a lack of work brought about by the pandemic (at [48]);
(d)the applicants had decided to stay in Australia despite the first applicant “having no work” (at [49]);
(e)the first applicant remains unemployed by an approved sponsor (at [50]); and
(f)the first applicant’s visa would have ceased on 8 June 2021 and can no longer be re-instated (at [51]).
The Tribunal then found as follows:
52.The purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker, if it cannot find appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of skilled occupations. The 457 visa is of limited duration related to working for a sponsor in a skilled occupation. The Tribunal finds that this purpose no longer exists as the applicant ceased working for his sponsor on the 4 June 2020.The Tribunal places significant weight on this consideration against the applicant’s case.
In relation to “the extent of the first applicant’s visa compliance”, the Tribunal stated that:
(a)the first applicant had an opportunity to rectify a breach in his visa conditions by commencing employment with another sponsor within 60 days (at [53]); and
(b)the first applicant was unable to find another sponsor to nominate him prior to the hearing and, at the hearing, the first applicant did not have a pending application by a new sponsor or an approved nomination. Further, he had not worked for a period of one year which was a substantive breach of the visa conditions (at [54]).
The Tribunal determined as follows in this regard:
55.Apart from this application the subject of the review there is no evidence that the applicant has not complied with his visa obligations and the Tribunal places some weight in favour of the applicant’s case in respect of the facts as stated in this paragraph.
In relation to “the degree of hardship that may be caused” to the applicants, the Tribunal:
(a)accepted that the applicants had been living in Australia since 2017 and would like to remain living in Australia (at [56]);
(b)was satisfied that the applicants may suffer some financial hardship in returning to Albania (at [57]);
(c)determined that it had no evidence of the first applicant’s financial situation but noted that, at the hearing, the first application said that the family own a home in Albania and, other than the second applicant’s sister (living in Shepparton, Victoria), the applicants have no family in Australia (at [58]);
(d)was satisfied that the applicants do have friends and family in Albania and they should have some emotional support upon their return (at [59]); and
(e)accepted that the applicants may find it hard to return to Albania due to the pandemic and associated travel restrictions but noted that they may be able to apply for a Bridging Visa E that would allow them to stay in Australia temporarily (at [60]).
The Tribunal ultimately found as follows:
61.The Tribunal does attach some weight in favour of cancelling the visa, as the applicant still owns a home and has family and friends in Albania and therefore that will ease the impact of financial or emotional hardship as the family will have support from family members and friends in Albania.
The Tribunal then considered “the circumstances in which the ground of cancellation arose”. In that regard, the Tribunal accepted that the pandemic was out of the first applicant’s control and may have had an impact on the first applicant’s circumstances but determined that the visa was issued for a specific purpose which had now ceased (at [62]) and found no evidence regarding any family violence (at [63]).
The Tribunal found as follows in this regard:
64.The fact that the effects of the pandemic caused the work situation to be affected and resulted in a lack of work for the applicant is a matter that the Tribunal has considered and attached some weight in favour of the visa not being cancelled.
The Tribunal also accepted that the first applicant had cooperated with the Department and had previously complied with visa conditions (at [65]).
The Tribunal then considered “the consequential cancellation” of the remaining applicants’ visas and noted that the first applicant would not be separated from his family as a result (at [66]). Further, the Tribunal found that the remaining applicants did not contribute to the circumstances leading to the first applicant’s visa non-compliance (at [68]).
The Tribunal continued:
69.There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. The Tribunal finds that the ability of Australia to comply with the principles of family unity is not affected by the cancellation of the applicant’s visa. The Tribunal does attach weight in favour of cancelling the visa as the principles of unity will not be affected by the Tribunal’s decision to cancel the Visa.
Upon review of the evidence and circumstances as a whole, the Tribunal concluded that the first applicant’s visa should be cancelled (at [70]) and affirmed the delegate’s decision to cancel the first applicant’s visa (at [71]).
The Tribunal found it had no jurisdiction with respect to the remaining applicants (at [72]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicants on 22 July 2021 contains four “grounds of review”, as follows:
1.I don't believe that it was a fair for the decision to cancel my visa, when I was only made aware of that my employment with the sponsor had ended in November 2020. As far as I understand, the actual time spent in looking for and finding a new sponsor only started after 30 November 2020. When the case opened for hearing at Administrative Appeals Tribunal on 14 May 2021, a time span of approximately 6 months had elapsed and I had managed to find a new employer who could sponsor me for my visa as well.
2.It is my understanding that the purpose of judicial review is for the court to examine whether the decision maker had the power to make the decision or grant the remedies in question (or even embark on the decision making process in the first place), the process by which the decision was reached (for example, failure to afford procedural fairness), or the substance of the decision itself (review on the basis of 'reasonableness', however this term is defined). In this circumstance, however, I believe this wasn't taken in to account, as my case never had the opportunity to be understood for the complexity that existed during the peak of COVID last year, when a lot of information about the global pandemic wasn't still available.
3.If given a reasonable amount of time, I can arrange my sponsorship with my new employer to work with them full time and reinstate with the Department that I am able to fulfil the conditions of my visa.
4.It is my hope that Federal Circuit Court of Australia will ensure that the decision made is rational and reasonable in all the circumstances.
The affidavit affirmed by the first applicant (and also filed on 22 July 2021 in support of that application) also provides what amount to detailed written submissions from the applicants and, arguably, further “grounds of review”.
Having reviewed the application for judicial review and the first applicant’s affidavit, the Court agrees with the Minister (as detailed in written submissions filed on 8 February 2022) that the issues raised by the applicants in both documents can be read as raising six “grounds of review”, as follows:
Ground 1 – were the applicants given a proper opportunity to respond to the NOICC?
Ground 2 – had visa condition 8107(3)(b) been breached?
Ground 3 – did the Tribunal fail to consider the impact of COVID-19?
Ground 4 – did the Tribunal err by making its decision earlier than the applicants anticipated?
Ground 5 – did the Tribunal err by considering the visa expiry date?
Ground 6 – did the Tribunal have jurisdiction in relation to the second, third, fourth and fifth applicants?
The applicants appeared before this Court without legal representation via video link. At the hearing, the fourth applicant spoke on behalf of his family/the applicants, translating for his family and consulting with them when needed. He spoke to the Court without the assistance of the interpreter and communicated effectively and without issue. An interpreter in the Albanian and English languages was made available. Her services were called upon in Court as needed.
The Court confirmed with the fourth applicant that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicants were unrepresented, the Court gave the fourth applicant the opportunity to explain orally what he and his family thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the fourth applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the fourth applicant outlined the applicants’ main concerns, as follows:
(a)the Tribunal did not make any decision in relation to the second, third, fourth and fifth applicants;
(b)the Tribunal did not take into account “the circumstances faced by the applicants” (including issues arising from the COVID-19 pandemic);
(c)the applicants did not have enough time to respond to the NOICC;
(d)the applicants did not receive material they think they should have received (including a notice of termination of employment or documentation from the Department regarding the end of the first applicant’s sponsorship); and
(e)had the applicants been given more time, the first applicant could have obtained a new sponsor and now have one.
These concerns will be addressed by the Court below.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicants on 22 July 2021, a Court Book numbering 263 pages (referenced as Exhibit 1) and written submissions and a list of authorities filed by the Minister on 8 February 2022.
ORAL AMENDMENT TO THE APPLICATION FOR JUDICIAL REVIEW
In submissions filed by the Minister on 8 February 2022, the Minister noted that the applicants had “only sought relief by way of an order quashing the Tribunal’s decision” and that, “without seeking an order that the matter be remitted, or an injunction, this Court’s jurisdiction under s 476 of the Act is not properly invoked”.
In that regard, the Minister was agreeable to the applicants “orally amending the application to rectify the oversight”.
At the hearing, the Court explained this issue to the fourth applicant and, with his agreement, made an order amending the application for judicial review to include the seeking of a writ of mandamus.
CONSIDERATION
Ground 1
By ground 1, the applicants claim that they were not given a proper opportunity to respond to the NOICC. Similar concerns were raised at the hearing during oral submissions.
It is noted that the applicants allege that they were “misinformed” by their former representative – who, the applicants claim, did not advise them that they could provide information as to why the visa ought not to be cancelled (and instead sought an extension of time for the first applicant to find a new sponsor).
As submitted by the Minister (at [27] in written submissions filed on 8 February 2022), the flaw with the applicants’ argument in this regard is that it relates to the NOICC process and a review of the matter by the delegate. This Court has no jurisdiction to review the delegate’s decision: ss 476(2) and (4) of the Act. Further, any error in the delegate’s decision or processes (noting that, here, the applicants appear to be alleging a denial of an opportunity to respond to the NOICC via an argument that the ground of cancellation did not arise) is “cured” by the Tribunal’s decision: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
The Minister also argues (at [28] in written submissions filed on 8 February 2022) that the first applicant was given an opportunity to explain to the Tribunal why he considered that the ground of cancellation did not arise. The Court agrees and notes that the applicants’ representative provided lengthy written submissions to the Tribunal and appeared at the Tribunal hearing to assist the applicants.
There is no evidence before this Court to suggest that the applicants were not given a proper opportunity to present their case before the Tribunal.
No error arises in this regard.
To the extent that the applicants take issue with the conduct of their former representative, the Court notes that, in judicial review applications in this Court, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal as per SZFDE v Minister for Immigration & Citizenship [2007] HCA 35. Negligence, incompetence or bad advice (while unacceptable) do not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17. An applicant’s recourse for negligence, incompetence or bad advice is to the appropriate regulatory authority – the Office of the Migration Agents Registration Authority – or, in some circumstances, via a civil claim filed in a different court.
In effect, in order to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with Part 5 of the Act. That is, the fraud must have directly impacted the Tribunal’s decision-making process.
On the evidence before the Court, this is not what occurred in this matter. Here, the agent in question assisted the applicants whilst the matter was before the delegate. Accordingly, any actions on the part of the applicants’ original migration agent (who provided assistance whilst the matter was being considered by the Department and by a delegate of the Minister) could not have stultified the Tribunal’s decision-making processes.
No jurisdictional error arises in relation to ground 1.
Ground 2
The applicants claim that the Tribunal was incorrect in its determination that visa condition 8107(3)(b) had been breached. In effect, they contend that the Tribunal’s approach was legally unsound.
It is useful to first consider what is required by condition 8107(3)(b) which relevantly provides:
(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):
…
(b)if the holder ceases employment—the period during which the holder ceases employment must not exceed 60 consecutive days; and
In this regard, the Court notes the Minister’s written submissions as follows:
33.The applicants allege that the Tribunal made an error of law in finding that the first applicant had ceased employment for more than 60 days. The matters that the first applicant raises in his affidavit as to why he considers his employment had not ceased for more than 60 days (and therefore the Tribunal erred) are the same as those that he raised before, and which were considered by, the Tribunal. The applicant is seeking impermissible merits review and asking the Court to come to a different conclusion as to when the first applicant’s employment ceased. This argument should be dismissed on this basis alone.
The Court agrees.
The Minister continues:
34.Nevertheless, there was no error in the Tribunal’s conclusion that the first applicant had not been employed for a period of 60 days. When the first applicant’s employment ceased was a question for fact for the Tribunal to determine on the information before it. Condition 8107(3)(b) was enlivened by the first applicant’s cessation of employment for 60 days. Condition 8107 did not require the Tribunal to be positively satisfied that the first applicant was made aware that his employment had ceased, such as by way of a termination notice. The question was whether the Tribunal was satisfied that the employment had ceased.
35.In this regard, the Tribunal determined that the first applicant ceased his employment on 4 June 2020 as:
35.1.this was the date upon which the first applicant stated that he had last worked for the sponsor;
35.2.the first applicant did not follow up with the sponsor or speak to him about when he would resume his employment after this date (CB 259-260, at [38]);
35.3.the first applicant did not give clear answers to questions about his leave entitlements (CB 259-60, at [38]). The first applicant provided no evidence of ongoing employment such as payslips or payslips to show he had/had not been paid his leave entitlements;
35.4.it was unusual that the sponsor would not contact the first applicant for 6 months and for the first applicant to not know that his employment had been terminated (CB 260, at [39]); and
35.5.the first applicant gave oral evidence that was implausible and inconsistent with the case advanced before the delegate where it was stated he ceased employment and was looking for new sponsors (CB 260, at [40]). The Tribunal rejected the first applicant’s explanation that this was a ‘miscommunication’.
36.Each of the above provides a logical and rational basis for the Tribunal to be satisfied that the first applicant’s employment ceased on 4 January 2020. The Tribunal’s assessment was founded upon the first applicant’s own evidence and the inconsistencies and implausibility of such. There was nothing unreasonable about the Tribunal reasoning as it did.
37.The Minister notes that the first applicant’s affidavit also refers to a statement of the Tribunal at [42] as unfair and not being relevant. Paragraph [42] states:
In any event the matter is being determined by the Tribunal approximately 1 year after the event as the cessation of his employment was on the 4 June 2020.The applicant has not worked for an approved sponsor in excess of 60 days.
38.Contrary to the applicant’s submissions, the period of the applicant’s non-compliance with his visa conditions was plainly relevant to the Tribunal’s consideration of whether it ought to exercise its discretion to affirm the visa cancellation.
This Court agrees. There is no dispute that, on the first applicant’s own evidence, he had last worked for the sponsor on 4 June 2020. It was noted by the Tribunal that it is “unusual” for an employer not to contact an employee for a period of six months and for an employee not to know that their employment had been terminated.
There is nothing unusual in this approach. The comments made arise from the evidence and reflect a rational and objective engagement with that evidence. The first applicant made no attempts to contact the sponsor or to speak to his sponsor about his employment and when he might resume work duties. Further, no evidence had been provided by the first applicant to support his arguments about “continuing employment” (for example, by way of payslips or evidence of any correspondence between him and his sponsor).
The Tribunal’s reasoning in relation to the breach of condition 8107 was legally sound and entirely reasonable.
No error arises in relation to ground 2.
Ground 3
The applicants also claim that the Tribunal failed to consider the impact of the COVID-19 pandemic.
This argument fails on a factual level.
The Tribunal considered the effects of the pandemic at a number of points in its reasons, as follows:
30.The Tribunal does have empathy for the situation that the applicant finds himself in because the Pandemic has caused a decrease in the availability of work in his field. The fact remains that he was granted a Temporary work visa for the purpose of employment with an approved sponsor in a skilled occupation.
…
60.The Tribunal accepts that the applicant and his family may find it difficult to return to Albania due to the travel restrictions in place as a result of the COVID pandemic. The applicant and his family may be able to apply for a Bridging Visa E that will enable them to remain in Australia temporarily.
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62.The Tribunal accepts that the circumstances in which the ground for cancellation arose may have been beyond his control due to the pandemic. Nevertheless, it is the context of a temporary visa for a specific purpose, which has now ceased as there are difficulties in that there is a lack of work in his field in Australia.
…
64.The fact that the effects of the pandemic caused the work situation to be affected and resulted in a lack of work for the applicant is a matter that the Tribunal has considered and attached some weight in favour of the visa not being cancelled.
As can be seen from the above, the Tribunal accepted that the pandemic had led to the breach in the visa condition and that the circumstances surrounding the ground of cancellation (being the breach) were out of the first applicant’s control. The Tribunal was sympathetic and understood the situation the applicants faced but, importantly, noted that the relevant visa conditions still needed to be met.
As submitted by the Minister (at [39] in written submissions filed on 8 February 2022), pandemics do not exempt applicants from complying with visa condition 8107. Here, the Tribunal considered the COVID-19 pandemic’s impact on the applicants and the extent to which it affected the first applicant’s employment opportunities. However, this did not mean that the visa condition no longer applied to the first applicant.
A similar conclusion is drawn in relation to the applicants’ concern that the Tribunal failed to take into account their “personal circumstances”. In this regard, the Court notes the difficult financial toll caused by the applicants’ inability to work. Unfortunately, this is not an issue that the Tribunal was able to address. Again, the visa condition still applied to the applicants.
The Tribunal’s consideration and reasoning in this regard was sound.
No error arises in relation to ground 3.
Ground 4
The applicants claim that they were told by the Tribunal (at the hearing held on 10 June 2021) that a decision would be made in their matter “in approximately one month”. The Tribunal’s decision was made on 22 June 2021 (approximately two weeks after the Tribunal hearing).
The applicants stress that it was “unfair” for the Tribunal to make its decision when it did in circumstances where the first applicant had a new employer who was willing to sponsor him.
The Court again notes the Minister’s written submissions in this regard as follows:
41. The Minister submits no jurisdictional error arises in circumstances where:
41.1.The applicants have not provided any evidence to support their claim that they were advised by the Tribunal that a decision would be made in approximately 1 month. On a factual level, this ground cannot be established.
41.2.There is nothing in the decision record to indicate that the applicants requested an adjournment for a new sponsor to lodge an application. In any event, the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) would have precluded such occurring. No new sponsorship nominations for the first applicant’s visa were accepted after 18 March 2018.
41.3.It appears that the applicants intended a new sponsor to lodge an application for sponsorship for an entirely different visa – a subclass 482 visa (CB 152). It is unclear how such an event would have bearing upon whether the ground for cancellation arose in the current case.
41.4.The applicants have not produced any evidence to indicate why the Tribunal making the decision 2 weeks earlier deprived them of a successful outcome (for example, documents or other material that they intended to provide to the Tribunal to consider as part of its decision-making process).
The Court agrees.
On 18 March 2018, the Regulations were amended by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (the “Amendment Regulations”) which removed Subclass 457 visas. From that date, no new nominations could be lodged with the Department. It was thus no longer possible for the first applicant to obtain an approved nomination from another sponsoring employer at the time of the Tribunal’s decision. This would be the case at any point after the introduction of the Amendment Regulations and regardless of when the Tribunal delivered its decision.
Further, the applicants have not provided any evidence to substantiate this ground, either to support their claim that the Tribunal suggested a decision would be made in one month or that the applicants were prejudiced in any way by the Tribunal delivering its decision two weeks earlier. As outlined above, any suggestion that a new application to become a new sponsor was going to be lodged by the first applicant’s prospective employer would not have changed the outcome before the Tribunal.
No error arises in relation to ground 4.
Ground 5
By ground 5, the applicants appear to suggest that the Tribunal erred in taking into account the first applicant’s visa expiry date in its consideration.
In its consideration of the “purpose of the [first applicant’s] travel and stay in Australia”, the Tribunal makes reference to the first applicant’s visa expiring as follows:
51.The Tribunal further finds that the Subclass 457 Visa would have ceased on the 8 June 2021 in any case. It follows that it is no longer possible to reinstate his visa.
The Minister submits (and the Court agrees) that the Tribunal correctly identified that, in circumstances where the first applicant’s visa had expired, it was no longer possible for that visa to be reinstated.
This Court considered this issue in Samah v Minister for Immigration [2020] FCCA 2868 (“Samah”) and notes the Minister’s submissions (with which the Court agrees) as follows in this regard:
44.The Tribunal was undoubtedly correct when it stated that it was no longer possible to reinstate the visa: Samah v Minister for Immigration [2020] FCCA 2868 at [81]-[86]. That is not to say that the Tribunal finding in favour of the first applicant (and setting aside the cancellation) would be futile. Setting aside the decision would mean that the s 48 bar did not apply and PIC 4013 did not limit the first applicant from reapplying for certain visas for 3 years.
45.Once again, the Tribunal’s decision must be read in context. It is not the case that the Tribunal stated that because the visa had expired then setting aside the decision would serve no purpose. Rather, when considered in light of the heading under which it is placed ‘the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel of remain in Australia’, the paragraph can be understood as the Tribunal stating that the purpose for which the visa was granted is no longer present. Put another way, the purpose for which the visa was granted, being to enable the first applicant to fill a skilled position, had lapsed because the visa had expired. The first applicant could no longer fulfil that purpose.
As was the case in Samah, none of the circumstances set out in ss 37A, 133 and 134D of the Act (which would allow the Minister to extend the period in which a visa is in effect) apply here. It therefore follows that, even if the matter were remitted, the visa has expired and, in circumstances where the period of the visa cannot be extended, the Tribunal would be unable to re-instate the first applicant’s visa.
The Court also notes that the expiry date for the relevant visa is but one matter considered by the Tribunal here. That consideration, contextually, is valid. The Tribunal discusses the issue of the visa expiry date in the context of the purpose of the first applicant’s stay in Australia. In circumstances where the visa (which was granted to enable the first applicant to work temporarily in Australia) had expired (and could not be extended or re-instated) and where the first applicant was not working (and had not been for a period of one year), the purpose for which that visa was granted no longer existed.
That reasoning was open to the Tribunal on the information before it.
No error arises in relation to Ground 5.
Ground 6
The issue raised in ground 6 is whether the Tribunal was correct when finding that it had no jurisdiction to review the cancellations of the second, third, fourth and fifth applicants’ visas.
These visas were statutorily cancelled pursuant to s 140(1) of the Act, which relevantly provides:
140 Cancellation of visa results in other cancellation
(1)If a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.
…
Here, there was no “migration decision” made in relation to the second, third, fourth and fifth applicants’ visas. Rather, the visas were instead “automatically” cancelled as a consequence of the cancellation of the first applicant’s visa: s 140(1) of the Act.
The Tribunal’s jurisdiction under s 348 of the Act is restricted to “Part-5 reviewable decisions” as follows:
348 Tribunal to review Part 5‑reviewable decisions
(1)Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5‑reviewable decision, the Tribunal must review the decision.
(2)The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.
In circumstances where there was no decision made with respect to the cancellation of the second, third, fourth and fifth applicants’ visas, the Tribunal does not have jurisdiction to conduct a review.
No error arises in relation to ground 6.
MINISTERIAL DISCRETION
These are difficult times and this is a most unfortunate case.
Before this Court, the fourth applicant explained that, because of the impacts of the COVID-19 pandemic, the first applicant had difficulties finding a new sponsor but was ultimately able to do so. The fourth applicant told the Court that, at the time of the Tribunal’s decision, they had all of the paperwork and documentation to obtain sponsorship from another party but had not been able to do so prior to the Tribunal making its decision. Whilst the fourth applicant acknowledged that the visa the first applicant had applied for no longer exists, he is of the view that he would be eligible for a similar skilled visa type.
The COVID-19 pandemic has dramatically altered the way in which applicants for migration visas seek to gain access to Australia’s migration system. While this Court makes no determination as to the first applicant’s prospects of ultimately receiving the visa he says he can now access, the Court does note that the situation he describes is arguably the result of an unprecedented global health crisis.
In that context, while the Court cannot assist the applicants (as no issue of jurisdictional arises here), the Court draws the applicants’ attention to the Minister’s discretionary powers. Where, as is the case here, the Tribunal has affirmed a decision cancelling the first applicant’s visa because of a breach of a condition of that visa, and that decision has been upheld on review, the Minister has a statutory discretion pursuant to s 351(1) of the Act to substitute a more favourable decision.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicants on 22 July 2021 have failed to identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 24 February 2022
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