Patel v Minister for Immigration

[2015] FCCA 2893

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2893

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – application for a Subclass 457 (Temporary Work (Skilled)) visa – sponsor’s fraud – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 116(1)(g), 116(3), 140, 140(1), 140M, 140M(1)(a), 140M(1)(d), 348

Migration Regulations 1994 (Cth), regs.2.43(1)(o), 2.43(1)(l)(iv), 2.90

First Applicant: MANISHABEN AMRUTLAL PATEL

Second Applicant: RAJNISH NATVARLAL PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1846 of 2014

Judgment of: Judge Hartnett

Hearing date: 8 October 2015

Delivered at: Melbourne

Delivered on: 8 October 2015

REPRESENTATION

The Applicants: The First Applicant

Counsel for the respondents: Mr Priest

Solicitors for the respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The Application filed on 11 November 2014 is dismissed.

3. The Applicants pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1846 of 2014

MANISHABEN AMRUTLAL PATEL

First Applicant

RAJNISH NATVARLAL PATEL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. Before the Court is an Application filed on 11 September 2014 for judicial review of a decision made by the Second Respondent (formerly the Migration Review Tribunal) (‘the Tribunal’) on 22 August 2014 to affirm a decision by a Delegate of the First Respondent (‘the Delegate’) to cancel the First Applicant’s (‘the Applicant’) Subclass 457 (Temporary Work (Skilled)) visa (‘the visa’) under the Migration Act 1958 (Cth) (‘the Act’).

2. The grounds of application are as follows:-

   “1. I applied for TEMPORARY WORK VISA 457 it was granted and then cancelled.

   2. Then I applied to MRT for review of that decision.

   3. I think MRT and department of immigration did not look at my document evidence at time of application.”

3. The First Respondent filed a Response dated 22 October 2014 wherein it sought dismissal of the application. 

4. The matter proceeded before Registrar Allaway on 3 December 2014.  On that date, Orders were made by consent, which included:-

   “2. On or before 27 February 2015, the applicants file and serve:

   a. any amended application including any additional grounds of review with complete particulars of each ground; and

   b. any affidavits.

   …

   5. Evidence of the contents of any sound recording be presented as a transcript verified by affidavit.

   6. The applicants file and serve written submissions and list of authorities 14 days before the final hearing.”

5. The applicants did not file any amended application in this proceeding, nor have the applicants filed any written submissions.  The First Applicant indicated on the hearing of the matter this day, that she preferred to make oral submissions to the Court. She did so with the assistance of an interpreter in the Gujarati and English languages.

6. The First Respondent relies upon the First Respondent’s Written Submissions filed on 14 September 2015.  In addition, there is before the Court the evidence as contained in the Court Book.  There is also before the Court, the documents as contained in the Supplementary Court Book filed on 14 September 2015.

7. The matter was first listed for hearing on 22 September 2015 but the applicants sought, and obtained, an adjournment of that date with the consent of the First Respondent.  The matter was thereafter listed for hearing this day. 

8. The Applicant raises only one substantial ground of review, that being that the Tribunal did not look at the documentary evidence provided by her.  That ground cannot be made out when looking to the Decision Record of the Tribunal dated 22 August 2014 (‘the Decision Record’).  Further, I note there is no particularisation of that ground and it is not for this Court to create a ground, not obvious in the Decision Record itself, for the Applicant.  The Court will dismiss the application and make a consequential costs order upon such dismissal, as sought by the First Respondent.  The reasons for so doing are that there is no jurisdictional error on the part of the Tribunal attending the decision, as elaborated upon hereafter.

Legislative framework

1. The Tribunal considered the Applicant’s application for review of the Delegate’s decision, that decision being dated 14 March 2014, which was to cancel the Applicant’s visa under s.116(1) of the Act. The Tribunal, in its Decision Record, set out the relevant law together with the relevant government policy guidelines.

2. Under s.116(1) of the Act, the First Respondent may cancel a visa if satisfied that certain specific grounds are made out. Those grounds include grounds, prescribed in the Migration Regulations 1994 (Cth) (‘the Regulations’) applicable to the holder of the visa.[1]

   [1] Migration Act 1958 (Cth), s.116(1)(g).

3. At the time of the visa cancellation, prescribed grounds for cancelling a visa pursuant to s.116(1)(g) of the Act were set out in reg.2.43 of the Regulations.

4. Section 116 of the Act is as follows:-

   “(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   (a) any circumstances which permitted the grant of the visa no longer exist; or

   (b) its holder has not complied with a condition of the visa; or

   (c) another person required to comply with a condition of the visa has not complied with that condition; or

   (d) if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

   (e) the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or

   (f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

   (fa) in the case of a student visa:

   (i) its holder is not, or is likely not to be, a genuine student; or

   (ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

   (g) a prescribed ground for cancelling a visa applies to the holder.

   (1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.

   (2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

   (3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.”

5. The prescribed ground that exists in this case is that defined at reg.2.43(1)(o) of the Regulations:-

   “that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person;”

6. The Tribunal further informed the Applicant that reg.2.43(1)(l)(iv) of the Regulations prescribed as a separate ground for cancellation, the sponsor’s cancellation and barring under s.140M of the Act. That regulation is as follows:-

   “(l)  in the case of the 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 or party to a labour agreement (the sponsor)—that:

   …

   (iv) the sponsor has been cancelled or barred under section 140M of the Act;”

History

1. The Applicant was born on 6 June 1983 in India.  She is a citizen of India.  The Applicant first arrived in Australia in November 2008 as the holder of a student visa.  She subsequently completed her education. The visa, the subject of this application, was granted on 8 January 2013.  She claimed, on that date, to have commenced full-time employment at the hairdressing salon of her sponsor, being paid $51,500 per year. 

2. The standard business sponsor in the approved nomination for the visa, approved on 10 December 2012, was Golden Eyes Pty Ltd (‘the Sponsor’).

3. On 10 January 2014, the Sponsor was barred and its approval as a standard business sponsor cancelled, under sub-ss.140M(1)(a) and 140M(1)(d) of the Act for breach of reg.2.90 of the Regulations, in the Sponsor’s provision of false or misleading information.

4. The Sponsor was on the departmental record stating that the Applicant had not worked for the Sponsor’s hairdressing business and had been paying her own salary to the Sponsor.

5. On 24 January 2014, a Notice of Intention to Consider Cancellation Under s.116 of the Migration Act 1958 was emailed to the Applicant.  It stated that on 21 August 2013, the Applicant’s sponsor had advised the Department of Immigration and Border Protection (‘the Department’) that he had been approached to facilitate sponsorships, including the Applicant’s, which were not to fill legitimate skill shortages.  Accordingly, this resulted in nomination and visa applications based on the provision of false or misleading information.

6. On 10 February 2014, in response to that notice, the Applicant’s migration agent provided a Statutory Declaration from the Applicant claiming that her sponsored position as a hairdresser filled a genuine skills shortage and that she genuinely worked for her sponsor. She denied that she had paid any money to her sponsor to obtain a visa.  That Statutory Declaration was made by the Applicant on 10 February 2014.  To support the Applicant’s claims, the migration agent of the Applicant provided payslips, an undated employment reference from the sponsor, and copies of bank statements.

7. On 4 March 2014, the Department wrote to the Applicant inviting her to comment on adverse information that on 21 August 2013, the sponsor stated that sponsorships were not to fill a genuine skill shortage; that sponsored persons paid him $22,500 with that money being used to make fortnightly deposits into their bank accounts.  Further, the invitation to comment letter stated that all the payslips provided by the Applicant show the date 4 February 2014, indicating they might not be genuine.

8. In response, on 13 March 2014, the Applicant emailed a further Statutory Declaration dated 12 March 2014 stating that she was not aware of any fraudulent behaviour by her sponsor, and that she did not pay him to make a fortnightly deposit into her account. 

9. On 14 March 2014, the Delegate cancelled the Applicant’s visa on the basis that he was satisfied there were grounds for cancellation under s.116(1)(g) of the Act because a prescribed ground for cancellation as defined in reg.2.43(1)(o) of the Regulations existed. The Delegate’s Decision Record indicated that on 19 February 2014, the Delegate had spoken to the Sponsor, who confirmed that information previously provided to departmental officers by him was correct and that he had provided the undated employment reference, because he “felt bad” for the Applicant.

10. The Delegate noted in his Decision Record that, on 21 August 2013, Mr Firas Ali (the Sponsor) stated that all his hairdressers were paid commission and he could not, and would not, pay them $51,000 a year.  The Delegate noted the company was not registered for goods and services tax, meaning its turnover was less than $75,000 per year.  Mr Ali also stated that the sponsorships were not to fill a genuine skill shortage.  He said he was paid $22,500 to sponsor each visa holder, and that visa holders would come in regularly to pay him cash, so he could use that money to make a fortnightly deposit to their bank account that looked like a regular wage.  This was supported by information provided to the Department by an independent third party some months prior to the Department’s investigation of Golden Eyes Pty Ltd and International Beauty Salon.  In her Statutory Declaration dated 10 February 2014, the Applicant maintained that she worked in a genuine full-time and paid position for Mr Ali.

The Tribunal proceeding

1. On 21 March 2014, the Applicant applied to the Tribunal for review of the Delegate’s decision.  On 14 May 2014, the Applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in her case. 

2. On 3 June 2014, the Department provided the Tribunal with a copy of the Applicant’s employment agreement with the Sponsor.  On 6 June 2014, further employment documents and a copy of the Sponsor’s business nomination visa application were also provided to the Tribunal. 

3. On 10 June 2014, the Applicant appeared at the Tribunal hearing assisted by an interpreter in the Gujarati and English languages.   At the conclusion of the hearing, the Tribunal indicated that it would take into account any further documentary evidence and submissions submitted to it prior to making its decision, and that, considering the Applicant’s then late pregnancy, the Tribunal would not make a decision until the end of July 2014.

4. On 28 July 2014, the Applicant submitted to the Tribunal statements from the Applicant’s National Australia Bank account from 21 August 2013 to 3 April 2014, and a statement from the Applicant’s superannuation account, indicating that the total contributions made by the Sponsor as of 30 June 2013 was $713.80 (one payment of $713.80 made on 8 April 2013).

5. In its Decision Record, the Tribunal noted, in paragraph 7 therein, that for the purposes of its jurisdiction under s.348 of the Act, the only decision that was before the Tribunal was the decision with respect to the Applicant. The Second Applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision, but by force of the operation of s.140(1) of the Act which made the cancellation of the Second Applicant’s visa self-executing on the cancellation of the Applicant’s visa. As no decision was involved in the visa cancellation under s.140(1) of the Act, the Tribunal had no jurisdiction with respect to the Second Applicant.

6. The Tribunal had before it, the Department’s file relating to the Applicant.  It also had regard to the material referred to in the Delegate’s decision and the material put before it by the Applicant.

7. The Tribunal put matters of concern to it to the Applicant, including adverse information, and sought her response.  As set out in paragraphs 20 and 30 of the Decision Record, the Tribunal explained to the Applicant that, if satisfied that the ground for cancellation was made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy. The Tribunal invited the Applicant to state reasons why the visa should not be cancelled.

8. As generally set out in the First Respondent’s Written Submissions filed on 14 September 2015, the Tribunal’s findings and reasons were as follows:-

   a)based on evidence before it, the Tribunal reasonably suspected that the visa had been obtained as a result of fraudulent conduct of the Sponsor, who had admitted that the sponsorships were fake. Further, there was information that the sponsoring employer had been barred under s.140M of the Act from making future applications for approval as a standard business sponsor. As a result, the Tribunal was satisfied that grounds for cancellation in s.116(1)(g) of the Act existed. As that ground did not require mandatory cancellation under s.116(3) of the Act, the Tribunal noted that it was required to consider whether the power to cancel the visa should be exercised;

   b)in considering whether to exercise its discretion to cancel the visa, the Tribunal had regard to a range of matters, including those identified in the Department’s policy guidelines, Procedures Advise Manual 3.  It noted at paragraph 42 of the Decision Record that, although it may be guided by policy, it was not bound to follow it;

   c)the Tribunal noted that the visa was cancelled for reasons beyond the Applicant’s control and weighed this against the fact that she had ample time to find a new sponsoring employer to nominate her.  At paragraph 4 of the Decision Record, the Tribunal said:-

   “The purpose of the applicant’s stay in Australia had been to work for the sponsor as a Hairdresser and to reside in Australia temporarily for that purpose.  The sponsorship was cancelled in January 2014, and according to the applicant’s own evidence, no new sponsorship or nomination was secured from another business despite her claims that she is [a] qualified hairdresser and that she will be able to obtain new sponsorship and employment in Australia. The review applicant’s visa was cancelled for reasons beyond her control, and the cancellation is therefore an unfortunate one.  The Tribunal has weighed this against the fact that the review applicant had ample time to find a new sponsoring employer to nominate her.”

   d)the Tribunal found that the degree of hardship that would be suffered by the Applicant from the “premature cessation” of her visa was not a significant factor, as the Applicant was aware from the time of the visa grant that she would be allowed to work in Australia for a limited time;

   e)the Tribunal gave limited weight to the Applicant’s claim that her parents did not approve of her marriage, as the Applicant and her husband had lived in Australia for six years without being supported by their respective parents.  It also noted the birth of the Applicant’s first child and found that it was in the best interests of the child to remain with his parents;

   f)the Tribunal also consider the Applicant’s claims that she genuinely worked for the sponsoring business and was not aware of her sponsor’s fraudulent actions.  It had regard to the superannuation statement provided by the Applicant, after the hearing and showing only one payment on 8 April 2013, and pay slips provided by the Applicant.  It noted that all pay slips provided were dated 4 February 2014 and contained a fortnightly payment of only $178.28, not regular fortnightly payments of $1,900 as claimed in her evidence by the Applicant;

   g)the Tribunal gave little weight to the undated employment reference provided by the Sponsor, as it contradicted his previous statements.  The Tribunal also said that, even if it accepted that the Applicant worked for the sponsoring business, it was not satisfied she worked in accordance with the employment agreement signed on 30 November 2012; and

   h)the Tribunal considered that, in all the circumstances, the Applicant’s visa should remain cancelled.

9. In oral submissions given before the Court this day, the Applicant submitted that she received correspondence from the Department advising her that she was unable to seek out employment.  She indicated that she had received two letters, the first giving her 90 days to seek other employment and the second, which arrived some five days after the first, telling her that she was required to leave Australia within 28 days and could not look for, or secure, employment. The Applicant was unable to provide either of those alleged pieces of correspondence for examination by the Court and Counsel for the First Respondent.  When asked whether such correspondence to her prior to the Tribunal hearing was put before the Tribunal by her, her response was “no”.  When asked whether she had made any submissions or produced any other evidence as to her alleged inability to find a new sponsoring employer, she responded in the negative.  I am satisfied that no such evidence was placed before the Tribunal and that, on the evidence before it, the Tribunal made the only finding open to it.

1. In further oral submissions made this day, the Applicant stated that the Delegate and Tribunal should not have accepted the evidence of her former employer, over her own.  That was a matter for the Tribunal and is not open to review by this Court.  Findings of fact and preferring the evidence of one witness over another, are matters for the Tribunal and not this Court. The Applicant seeks to dispute the findings of fact of the Tribunal.  There is no error going to jurisdiction in the factual findings of the Tribunal. 

2. There is no evidence of illogicality or unreasonableness in the Tribunal’s decision. The relevant findings made were open to the Tribunal on the evidence before it, and it was entitled to exercise its discretion as it did. The Tribunal considered all of the material put before it by the Applicant. It referred to those documents that it considered material to its decision in its Decision Record. No jurisdictional error attends the decision. The Tribunal was able to be satisfied that the grounds prescribed at regs.2.43(1)(l)(iv) and 2.43(1)(o) of the Regulations existed.

3. The application must be dismissed and costs shall follow the event. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  27 October 2015