Patel v Minister for Immigration - [2020] FCCA 2314

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2314

Catchwords:
MIGRATION – Continuing sponsored employment a condition of 457 visa – cancellation of sponsorship in 2014 – continued employment with a non-approved sponsor – residence in Australia by first applicant since 2008 – 457 visa to be of temporary effect based upon need – cancellation of visa - no jurisdictional error on the part of the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116(1), 116(1)(g), 140(1).

Migration Regulations 1994 (Cth), r.2.43(1)(l)(iv), Sch. 8, cl. 8107(1), cl.

8107(3)(b).

Cases cited:

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 10.

DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

First Applicant:

PAYALBEN SEJALKUMAR PATEL

First Applicant:

SEJALKUMAR GANESHBHAI PATEL

First Applicant:

AAYUSHI PATEL

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 519 of 2017

Judgment of:

Judge Egan

Hearing date:

20 August 2020

Date of Last Submission:

20 August 2020

Delivered at:

Brisbane

Delivered on:

21 August 2020

REPRESENTATION

First Applicant:

In person

Second Applicant:

In person

Solicitors for the First Respondent:

Mills Oakley Lawyers

Second Respondent:

Submitting appearance save as to costs

ORDERS

The name of the first respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The application for review filed on 15 March 2017 be dismissed.
The First Applicant and the Second Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 519 of 2017

PAYALBEN SEJALKUMAR PATEL

First Applicant

SEJALKUMAR GANESHBHAI PATEL

Second Applicant

AAYUSHI PATEL

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The first applicant is a citizen of India who has resided in Australia since November 2008. The second and third applicants are her husband and daughter respectively.
The first applicant was granted a Temporary Business Entry (Class UC) (Subclass 457) visa on 27 May 2014. Her employment was that of a customer service manager and her sponsor was Global Traffic Management Pty Ltd.
A condition of the grant to the first applicant of the visa was compliance with Condition 8107 to Schedule 8 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Condition 8107(1) and (3)(b) of Schedule 8 relevantly provided as follows:
“8107
(1) If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not:
(a) cease to be employed by the employer in relation to which the visa was granted; or
(b) work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
(c) engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.
…
(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):
…
(b) if the holder ceases employment—the period during which the holder ceases employment must not exceed 90 consecutive days; and”
The sponsor ceased to carry on business, and as a result, the first applicant’s sponsorship agreement with the sponsor was cancelled on 29 August 2014.
On 12 August 2016, the first applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of the visa because it was considered that the first applicant had breached the provisions of Condition 8107(3)(b), in that she had ceased employment with the sponsor for a period exceeding 90 days. The NOICC also noted that the first applicant’s nominated application was not one specified in IMMI 13/067 for the purposes of Condition 8107(3A) so as to exempt the first applicant from compliance with the requirements of Condition 8107(1)(a).
On 22 August 2016, a delegate to the Minister cancelled the first applicant’s visa pursuant to the provisions of s. 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’). [1] Section 116(1)(b) provided as follows:
[1] Court Book (CB) pp. 27 – 31 inclusive – Delegate’s decision to cancel visa.
“Section 116 – Power to cancel
(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”
On 29 August 2016, the first applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.
On 6 January 2017, the Tribunal wrote to the first applicant inviting her to give oral evidence and present arguments at a review hearing scheduled for 22 February 2017. On 20 February 2017, the first applicant caused submissions, a statement and supporting documentation to be provided to the Tribunal. The first and second applicants appeared before the Tribunal on 22 February 2017 at which time they were represented by a registered migration agent.
On 24 February 2017, the Tribunal affirmed the decision of the delegate to cancel the first applicant’s visa. The Tribunal found that it did not have jurisdiction in respect of the second and third applicants because their visas had been automatically cancelled by reason of the provisions of s. 140(1) of the Act.
On 15 March 2017 the first applicant filed an Originating Application for Review of the decision of the Tribunal. The grounds for review of such application were as follows:
“Grounds of application
1. The Tribunal took account of irrelevant considerations and failed to take account of relevant considerations.
Particulars
·The Tribunal failed to properly exercise its discretion not to cancel the applicant’s visa and failed to have regard to the fact that any breach of condition 8107(3)(b) was not of the applicant’s making. The Tribunal failed to give proper weight to the fact that it was the applicant’s employer that led to the breach of condition 8107(3)(b) and that the applicant was not aware that her employer had changed their company structure and its ABN.
·The Tribunal accepted that the applicant was not aware until August 2016 that her employer sponsorship agreement was cancelled by the Department, but inappropriately determined that the applicant’s failure to commence employment with a new business sponsor between August 2016 and 22 February the date of the tribunal hearing, constituted a significant breach of condition 8107. In so determining, the tribunal failed to give any consideration to the fact that the applicants visa had been cancelled on 22 August 2016 and that it was therefore impossible for her to find alternative employment and an alternative sponsor.
·The Tribunal failed to properly consider the hardship that would be caused to the applicant and her family as a result of the cancelation of her visa, particularly given that the Tribunal accepted that the applicant had been living with her family in Australia since November 2008 and she did not voluntarily cease her employment and any breach of condition 8107 was not of the applicant’s making.”
On the question of the status of the first applicant’s employment nomination and of the identity of her employer as at the date of the review hearing, the Tribunal at [14] – [23] of its reasons summarised the position as follows:
“[14] Upon arriving in Australia, the applicant completed Certificate Ill and IV in Pastry. She continued her studies and by late 2013, she successfully completed both Diploma and an Advanced Diploma in Business Management. Her husband is and has been employed in Australia for more than 6 years (hospitality and factory work).
[15] The applicant confirmed that she was granted a subclass 457 visa on 27 May 2014; that she received the visa grant letter from the department explaining the conditions imposed on her subclass 457 visa; that her sponsor was Global Traffic Management Pty Ltd and that her nominated occupation was Customer Services Manager. She commenced her employment at the sponsoring business on 1 July 2014. The main office of Global Traffic Management Pty Ltd was in Shepparton and she worked at a depot located at Hoppers Crossing. From January 2016, the business had only one depot for the State of Victoria and the applicant was relocated to Nunawading. Her annual salary was $54,900 including superannuation. Her wages were paid weekly by direct deposit into her Commonwealth Bank account.
[16] I noted that she has submitted PAYG statements to the tribunal with her review application. According to PAYG certificate for the period from 1 July 2015 to 15 November 2015, her employer was stated to be Global Traffic VIC Pty Ltd. I inquired whether the applicant made any inquiries with her employer upon realising that her wages are now paid by different legal entity (Global Traffic VIC Pty Ltd and not Global Traffic Management Pty Ltd). She stated that her employer told her that they already notified the department of changes in a business structure.
[17] The applicant confirmed that she submitted her written statement which she adopted by inserting her signature and date. She reiterated that she only become aware of sponsorship cancellation for Global Traffic Management Pty Ltd in August 2016, after receiving the NOICC from the department.
[18] I noted that with her submissions, she provided a copy letter from Global Traffic (VIC) Pty Ltd dated 29 July 2014 as evidence that the business owner informed the department of changes in the business structure. I observed that in the same letter, the business owner informed the department that employees were advised of change of ABN number as of 1 July 2014 and have completed new Tax Declaration Forms. The applicant confirmed that she was informed of the change of ABN number and that she completed new Tax Declaration Form at the time. She explained that her employer told her that everything else will remain the same and that she will continue to work at the same position.
[19] She confirmed in her evidence that in August 2016 she saw the letter from Global Traffic (VIC) Pty dated 29 July 2014 that was sent to the Department. She confirmed that in August 2016 she become aware that Global Traffic Management Pty Ltd ceased operating in August 2014 and three new companies were set up. She continued to be employed by Global Traffic (Vic) Pty Ltd at a depot located in Nunawading.
[20] I inquired and the applicant stated that her current employer, Global Traffic (Vic) Pty Ltd, never sponsored or nominated her to work as a Customer Services Manager. I inquired if she ever asked her current employer to sponsor and nominate her for a position of a Customer Services Manager and she stated that she did not.
[21] I inquired what she did after August 2016, after she become aware that Global Traffic Management Pty Ltd sponsorship was cancelled, to find alternative employer willing to sponsor and nominate her for the position within their business. I noted that she had more than 6 months to find alternative Australian business that is approved sponsor and that is willing to nominate her for the job. She stated that she is still looking for a company that will sponsor and nominate her for the job.
[22] I observed that her last sponsor, Global Traffic Management Pty Ltd, who successfully nominated her for the position within their business ceased operating in August 2014 and that the Department proceeded to cancel her visa in August 2016.
[23] I asked and the applicant answered that, as of the day of the tribunal hearing, she is not sponsored or nominated by any Australian business. She reiterated that she is still looking for a company that will sponsor and nominate her.”
At [35] – [37] inclusive of its reasons, the Tribunal:
a)found that the first applicant had not complied with Condition 8107(3)(b);
b)found that a ground for cancellation under s. 116(1)(g) of the Act existed, that being a prescribed ground under r. 2.43(1)(l)(iv) of the Regulations;
c)recorded that it then considered whether or not it should exercise its discretion to affirm the decision of the delegate to cancel the first applicant’s visa, including those matters as set out in the department’s Procedures Advice Manual (PAM 3).
When considering whether it should exercise its discretion to affirm the decision of the delegate or not, the Tribunal found at [41] that the purpose of the first applicant’s stay in Australia was to work as a customer services manager for the sponsor on a temporary basis. At [44] of its reasons, the Tribunal noted that the first applicant had claimed in her evidence that though she was looking for a company that was willing to sponsor her and nominate her for a job, there was no evidence that she had received any job offers or any written commitment from an Australian business that was prepared to sponsor and nominate her. At [45] of its reasons, the Tribunal noted that her company employer at the time of the review hearing had not sponsored or nominated her to work for its business. At [47] of its reasons, the Tribunal noted that though the first applicant had been granted work rights by the department in September 2016, shortly after the cancellation of her visa, the first applicant had not obtained an approved standard business sponsor who had successfully nominated the first applicant with a business despite her having had a reasonable opportunity to do so. It was also noted by the Tribunal it had taken into consideration the fact that the first applicant’s visa would have ceased on 27 May 2018 in any event had it not been earlier cancelled.
At [49] of its reasons, it was found by the Tribunal that the purpose of granting a Subclass 457 visa was to enable a business to sponsor a skilled worker if it could not find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. It also found that a Subclass 457 visa was a temporary visa of limited duration related to working for a particular sponsor, in a skilled occupation, and that such purpose no longer existed as a result of the first applicant having ceased work with the sponsor in August 2014.
At [53] of its reasons, the Tribunal noted that since the cancellation of the visa, the first applicant had already worked for more than a 2 year period without an appropriate sponsorship nomination having been in place. At [54] of its reasons, the Tribunal found that such continued employment after the termination of employment with the sponsor was a significant breach of Condition 8107. At [55] of its reasons, the Tribunal found that though the circumstances in which the ground for cancellation arose were not within the first applicant’s control, such breach of the condition had nonetheless occurred in the context of a temporary visa for a specific purpose which had ceased.
At [56] – [62] of its reasons, the Tribunal considered factors which might militate against the cancellation of the visa. At [59] – [60] of its reasons, the Tribunal said as follows:
“[59] Balanced against any potential hardship to the applicant and his wife that may result from the visa cancellation is the fact that the applicant was granted a temporary visa which create no expectation of remaining in Australia permanently. The premature cessation of her visa may result in the applicant being unable to take full advantage of the opportunity to work in Australia on a temporary basis, and possibly dashed her plans for obtaining permanent residence in Australia. I do not regard the degree of hardship to the applicant and her family to be a significant factor as she was aware from the time of 457 visa grant that she will be allowed to work in Australia for a limited time.
[60] In any event, the applicant is not prevented from re-applying for 457 visa once she finds the new employer who is approved as a standard business sponsor and has the approved business nomination in relation to the applicant.”
At [61] of its reasons, the Tribunal noted that the fact that the first applicant was on a bridging visa at the time of the review hearing did not mean that the first applicant, or the other members of her family, would be placed into detention as a necessary consequence of the cancellation. It noted that that would only occur if they refused to leave Australia after any appeal process had been unsuccessfully exhausted.
At [65] of its reasons, the Tribunal noted that Australia would not be in breach of any convention obligation (including an obligation in relation to non-refoulement) should the decision of the delegate be affirmed. The Tribunal found that the reasons for cancellation of the visa outweighed the reasons for not cancelling the visa.
As to the ground for review, such ground asserted that the Tribunal took account of irrelevant considerations and failed to take into account relevant considerations. There is no merit to such ground.
The Tribunal carefully considered the claims the subject of the ground for review. It addressed each of them in its reasons for decision. The findings of the Tribunal were open to it based on all of the evidence before it. The first applicant disagreed with the findings of the Tribunal, and in effect seeks a merits review of its decision, something which this Court is not entitled to do. As was said by Gray, Tamberlin and Lander JJ in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]:
“[10] In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
Further, the decision of the Tribunal was not legally unreasonable. As was held by Kenny, Kerr and Perry JJ in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30]:
“[30] The relevant principles can be summarised as follows.
(1) While findings as to credit are generally matters for the administrative decision-maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (in a passage approved in CQG15 at [60]) that:
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny …
(Citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].”

The Tribunal clearly engaged upon a consideration of the applicant’s claims and found against the first applicant. It has long been accepted that different minds might legitimately reach different conclusions. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:
“[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
The first applicant has failed to establish jurisdictional error on the part of the Tribunal.
The application for review is without merit and is dismissed.
The Court will hear the parties as to costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 21 August 2020