Patel v Minister for Immigration and Border Protection
[2016] FCA 165
•23 February 2016
FEDERAL COURT OF AUSTRALIA
Patel v Minister for Immigration and Border Protection [2016] FCA 165
Appeal from: Patel v Minister for Immigration and Border Protection [2015] FCCA 2893 File number: VID 657 of 2015 Judge: BROMBERG J Date of judgment: 23 February 2016 Catchwords: MIGRATION – whether leave should be granted to advance new argument that Tribunal erred in failing to give appellant opportunity to comment on adverse information, inconsistently with s 359A of the Migration Act – argument without merit – leave not granted – no other error – appeal dismissed. Legislation: Migration Act 1958 (Cth) ss 116(1)(g), 140M, 359A
Migration Regulations 1994 (Cth) regs 2.43(1)(l)(iv), 2.43(1)(o)
Cases cited: Patel v Minister for Immigration and Border Protection [2015] FCCA 2893 Date of hearing: 23 February 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the Appellants: The first appellant appeared on behalf of herself and the second appellant, assisted by an interpreter Counsel for the First Respondent: Mr TC Smyth Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs
ORDERS
VID 657 of 2015 BETWEEN: MANISHHABEN AMRUTLAL PATEL
First Appellant
RAJNISH NATVARLAL PATEL
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
23 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellants pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
This is an appeal from a judgment of the Federal Circuit Court published as Patel v Minister for Immigration and Border Protection [2015] FCCA 2893. The primary judge dismissed Ms Patel’s application for judicial review of a decision made by the Migration Review Tribunal (as the Second Respondent was then called) (Tribunal) on 22 August 2014. By its decision, the Tribunal affirmed a decision made by a delegate of the first respondent (Minister) to cancel Ms Patel’s subclass 457 (Temporary Work (Skilled)) Visa (Visa). The task of the primary judge in dealing with the judicial review proceeding brought by Ms Patel was to determine whether the Tribunal’s decision was affected by jurisdictional error. The task of this Court on the appeal brought by Ms Patel is quite limited. My task is to determine whether the judgment of the primary judge is affected by appelable error.
Applicable legal Framework
To explain my reasoning it is necessary to set out some of the applicable legal framework. Ms Patel’s Visa was cancelled under the power given by s 116(1) of the Migration Act 1958 (Cth) (the Act). Relevantly, s 116(1)(g) provides:
Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(g) a prescribed ground for cancelling a visa applies to the holder.
Regulation 2.43(1) of the Migration Regulations 1994 (Cth) (the Regulations) sets out prescribed grounds. Of particular relevance are regs 2.43(1)(l)(iv) and (o), which are as follows:
2.43 Grounds for cancellation of visa (Act, s 116)]
(1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:
…
(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; or
…
(o)that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person; …
Also of some relevance is s 359A of the Act which addresses information that, in the circumstances there disclosed, the Tribunal may be obliged to provide to an applicant. Section 359A provides:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
Background
Ms Patel was granted her Visa on 8 January 2013. Her nominated sponsor was Golden Eyes Pty Ltd (Golden Eyes). The reason why the Visa came to be cancelled are set out in the reasons of the Tribunal. I will give a brief outline of what occurred.
A delegate of the Minister cancelled the Visa on 14 March 2014. In cancelling the Visa under s 116(1)(g), the delegate was satisfied that the ground prescribed in reg 2.43(1)(o) of the Regulations applied to Ms Patel’s Visa in that the Visa had been obtained “as a result of the fraudulent conduct of any person”. A business nomination application by Golden Eyes was approved by the Minister’s Department on 10 December 2012. As a result of monitoring site visits and interviews conducted by the Department in August 2013, Golden Eyes was barred as a business sponsor and its sponsorship cancelled under s 140M of the Act on 10 January 2014. That occurred after the “owner” of Golden Eyes, Mr Firas Ali, admitted to officers of the Department’s Program Integrity Unit Victoria that visa applications associated with business sponsorships and nominations made by Golden Eyes were not to fill legitimate skills shortages, that Ms Patel did not work for the sponsoring business, and that she had paid her own salary to Golden Eyes.
In cancelling the visa, the delegate also relied on an ASIC business register search that indicated that Golden Eyes was not registered for GST. According to that information, the annual turnover of the business appeared to be less than $75,000. That was regarded by the delegate as supporting the statement of Mr Ali that he was unable to pay each of his hairdressers an annual of salary of $51,000. The Tribunal’s record further records that Mr Ali stated that 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 make fortnightly deposits to their bank accounts that looked like the payment of a regular wage.
The primary decision record provided to the Tribunal also included reference to admissions made by Mr Ali that he had provided a work reference for Ms Patel in early February 2014 because she did work for him sometimes and because he felt bad that Ms Patel had lost her job. Mr Ali confirmed that the information provided to the departmental officers in August 2013 was correct and that sponsorships were “fake”.
As the reasons of the Tribunal set out at [13] and [14], on 4 March 2014 the Department wrote to Ms Patel inviting her to comment on the following adverse information (the following is a quote from the Tribunal’s decision, not the Department’s letter):
On 21 August 2013, Mr Firas [sic] stated that all hairdressers were paid commissions as he could not and would not pay them $51,000 per year; that each sponsored person paid him $22,500 and that money was used to make fortnightly deposits to their bank accounts; and
That each payslip provided as evidence of her employment at Golden Eyes Pty Ltd Ltd [sic] shows a payment date of 4 February 2014.
Ms Patel, as the Tribunal notes, responded to that invitation to comment and submitted a statement dated 12 March 2014 reiterating that she genuinely worked at the business, that she was not aware of any fraudulent behaviour by Mr Ali and that she did not pay Mr Ali any money to obtain a “fake sponsorship”.
Ms Patel applied to the Tribunal on 21 March 2014 for a review of the delegate’s decision to cancel her Visa. Ms Patel appeared before the Tribunal on 10 June 2014 to give evidence and present her arguments. She was, according to the Tribunal’s reasons, informed at the hearing that there was a further prescribed ground for cancellation of her Visa. That further ground was that the status of Golden Eyes as a sponsor had been cancelled and that it had been barred as a sponsor as from 10 January 2014 under s 140M of the Act. The Tribunal explained to Ms Patel that reg 2.43(1)(l)(iv) of the Regulations prescribed that circumstance as a separate ground for cancellation.
Ms Patel told the Tribunal that Golden Eyes had paid her wages fortnightly by direct deposit to her bank account. She stated that the fortnightly amount paid was $1,900. She also stated that she had a superannuation account and that her sponsor had paid superannuation contributions into that account. She said that she received payslips from her employer and the Tribunal requested that they be provided. Ms Patel reiterated that she genuinely worked as a full-time hairdresser for the business operated by Golden Eyes, that she was not aware of any fraudulent behaviour of Mr Ali and that she did not pay Mr Ali any money to obtain a “fake sponsorship”.
In post-hearing correspondence, Ms Patel provided to the Tribunal various bank statements and also statements from her superannuation account indicating that contributions had been made by Golden Eyes.
The dispositive reasoning of the Tribunal is set out at [35] to [39] of the Tribunal’s reasons.
Does the ground for cancellation exist?
[35]A visa may be cancelled under s 116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the grounds in r.2.43(1)(o) and 2.43(1)(l)(IV) are relevant
[36]Information in the delegate’s decision record, which was submitted by the review applicant to the tribunal, indicates that the applicant’s sponsoring employer in the most recently approved nomination for the visa, Golden Eyes Pty Ltd, had its approval as a Standard Business sponsor cancelled on 10 January 2014 under section 140M(1)(a). This was acknowledged by the applicant during the Tribunal hearing. In addition, there is information indicating that the sponsoring employer has been barred under section 140M(1) from making future applications for approval as a Standard Business Sponsor.
[37]Accordingly, a ground prescribed in r.2.43(1)(l)(IV) of the Migration Regulations 1994 for cancelling the visa applies to the visa holder.
[38]In addition, based on the evidence before it, the Tribunal reasonably suspects that the visa has been obtained as a result of a fraudulent conduct of Mr Ali Firaz, the owner of Golden Eyes Pty Ltd who admitted to the Department that the sponsorships were ‘fake’ and that resulting visa applications were not to fill legitimate skills shortages. Accordingly, a ground prescribed in r.2.43(1)(o) of the Migration Regulations 1994 for cancelling the visa applies to the visa holder.
[39]For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
Having satisfied itself that grounds for cancellation existed, the Tribunal proceeded to consider whether, in the exercise of its discretion, the power to cancel the Visa should be exercised. It is not necessary to refer to the matters that the Tribunal considered. The Tribunal concluded that, in the circumstances, the preferable decision was that Ms Patel’s Visa should remain cancelled. Accordingly, the Tribunal affirmed the decision to cancel Ms Patel’s Visa.
Consideration
It is not necessary, in the circumstances, that I outline the reasons for judgment of the primary judge. Ms Patel has not filed written submissions, but she did appear and made submissions orally today. Neither her Notice of Appeal filed in this Court nor the submissions made by Ms Patel today seek to suggest any error made by the primary judge. Instead, what the Notice of Appeal seeks to do is to raise a new ground not agitated before the primary judge. That ground (as expressed in the Notice of Appeal) is as follows (bold text as in original):
1The FM failed to find that the tribunal’s decision was in breach of s 359A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error.
(a)There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 359A
2.I arrive in Australia in February 2008 on a student visa. Then I have applied for 457 visa. Previously immigration department never found problem with my 457 visa application I think department and MRT tribunal misunderstood my document.
Ms Patel sought the Court’s leave to agitate a ground not raised before the primary judge. Her application for leave was resisted by the Minister. By reference to authority, the Minister correctly contended that there are three criteria that I need to consider on the question of whether leave should be granted. First, whether or not there is merit in the new ground. Second, whether the Minister would be prejudiced if Ms Patel was allowed to raise the new ground. Third, whether any adequate explanation is given for the failure to raise the new ground before the primary judge.
As to prejudice, the Minister points to none. As to whether or not any adequate explanation had been provided, Ms Patel stated that she forgot to raise the point before the primary judge. Whilst the explanation given does little to justify the omission, in the circumstances, including that Ms Patel is not legally represented, I would not regard that consideration as dispositive. I do, however, refuse the grant of leave on the basis that, for the reasons I will now explain, there is no merit in the ground sought to be agitated by Ms Patel.
Ms Patel’s ground of appeal does not identify what adverse information used by the Tribunal to affirm its decision was not disclosed to Ms Patel in breach of s 359A of the Act. When pressed as to what information she says was not disclosed to her, Ms Patel essentially said that she should have been informed that the owner of Golden Eyes had alleged that she had provided Golden Eyes with money in order for Golden Eyes to pay her wages. It seems apparent from the Tribunal’s reasoning that, at least to some extent, the Tribunal relied on that information. However, the allegation made by Mr Ali was the subject of correspondence to Ms Patel being the Department’s letter of 4 March 2014 to which I earlier referred. That correspondence invited Ms Patel to comment on the information contained in the letter, including that each sponsored person had paid Mr Ali $22,500 to sponsor him or her, and that money had been paid by visa-holders to Mr Ali in cash, which he used to make fortnightly deposits into visa-holders’ bank accounts so as to give the appearance that the deposits were wages.
The reasons of the Tribunal indicate that Ms Patel was provided with an opportunity to deal with that information and, in fact, did so. She did that by her statement of 12 March 2014 denying any fraudulent behaviour and denying that she paid Mr Ali any money to obtain a fake sponsorship. She reiterated those statements to the Tribunal and again expressly denied providing Mr Ali with any money to obtain a fake sponsorship.
In my view, as the information in question was disclosed to Ms Patel including during the course of the hearing before the Tribunal, no arguable basis has been established by Ms Patel for the contention that the requirements of s 359A were engaged (see s 359A(3)).
There is, perhaps, a second ground in the ground of appeal relied upon by Ms Patel. At the end of what is numbered as subparagraph (2), Ms Patel’s ground states, “I think department and MRT tribunal misunderstood my document”. Ms Patel explained that, in this respect, she was raising a complaint that the Tribunal had misunderstood the documents that she had provided to the Department on 12 March 2014 in response to the Department’s letter of 4 March 2014, inviting her comment on the adverse information which I have earlier outlined. What it seems to me Ms Patel is really raising here, and what it is that Ms Patel raised on several occasions separately during her oral submissions, is a complaint that she was not believed by the Tribunal when she should have been believed.
It is necessary to identify two matters in relation to that complaint. First, reg 2.43(1)(o) justified the cancellation of Ms Patel’s Visa in circumstances where the Tribunal “reasonably suspects that the visa had been obtained as a result of the fraudulent conduct of any person”. In other words, it was not necessary for the Tribunal to have been satisfied that Mr Ali and Golden Eyes had been involved in fraudulent conduct. It was sufficient for the Tribunal to have come to the view, which it did, that it reasonably suspected that the Visa had been obtained as a result of fraud. Second, the question as to whether or not Ms Patel should have been believed was a question for the Tribunal. In so far as the Tribunal disbelieved Ms Patel, there was evidence supportive of that disbelief that the Tribunal was entitled to rely upon. It was open to the Tribunal to come to the view that Ms Patel’s evidence ought not be preferred to the admissions made by Mr Ali. There is no basis for thinking that the Tribunal’s non-acceptance of Ms Patel’s evidence was affected by jurisdictional error.
There was a further contention agitated by Ms Patel this morning, to the effect that the Tribunal should have given her one more chance to find a sponsor or, in other words, that the Tribunal should have given her more time to find an alternative sponsor. It is not clear to me why Ms Patel says that she was not given an appropriate amount of time to find an alternative sponsor. But, in any event, Ms Patel does not point to any statutory obligation upon the Tribunal which would support a contention that, in denying her an opportunity to find another sponsor, the Tribunal’s decision was affected by jurisdictional error.
For those reasons, I decline to grant Ms Patel leave to raise her new ground of appeal and I dismiss the appeal. I will also order that the Minister’s costs be paid by Ms Patel.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 7 March 2016
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