Patoliya v Minister for Home Affairs

[2018] FCCA 3529

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATOLIYA & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3529

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of an employment visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error – observations on the adverse consequences of abuse of the class 457 visa program.

Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.351, 359A, 360, 360A, 379A, 379C

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v Jia Legeng (2001) 205 CLR 507

SZRUI v Minister for Immigration [2013] FCAFC 80

Webb v R (1994) 181 CLR 41

First Applicant: RIKHIKUMAR BATUKBHAI PATOLIYA

Second Applicant: URVASHI RIKHIKUMAR PATOLIYA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 341 of 2018

Judgment of: Judge Driver

Hearing date: 30 November 2018

Delivered at: Sydney

Delivered on: 30 November 2018

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Mr K Eskerie of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 341 of 2018

RIKHIKUMAR BATUKBHAI PATOLIYA

First Applicant

URVASHI RIKHIKUMAR PATOLIYA

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicants, Mr Patoliya and his wife, seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), made on 12 January 2018.  The Tribunal affirmed decisions of a delegate of the Minister (delegate) not to grant the applicants’ Employer Nomination (Permanent) (Class EN) visas.  These are commonly known as 457 visas. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions, filed on 23 November 2018. 

3. The applicants, who are citizens of India, applied for the visas on 12 May 2016.[1]  Mr Patoliya is the primary applicant, and Ms Patoliya is his wife.[2]  On 27 September 2016, the delegate refused to grant the visas on the basis that the nomination application by Mr Patoliya’s employer, a company that owned 7-Eleven stores (company), was not approved.[3]

   [1] Court Book (CB) 1

   [2] CB 4

   [3] CB 35

4. On 13 October 2016, the applicants applied to the Tribunal for review of the delegate’s decision.[4] On 21 July 2017, the Tribunal wrote to the applicants pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act) inviting them to comment on or respond to information that the company had withdrawn its nomination, which had been refused by the delegate, and was then pending review by the Tribunal.[5]  On 4 August 2017, Mr Patoliya responded to that letter.[6]  On 30 August 2017, the applicants appeared at the Tribunal hearing with the assistance of a Gujarati interpreter.[7]

   [4] CB 39

   [5] CB 77

   [6] CB 79

   [7] CB 175

5. On 12 January 2018, the Tribunal affirmed the decision under review, but made a request for the matter to be referred to the Minister pursuant to s.351 of the Migration Act.[8]  On 29 January 2018, a delegate of the Minister determined that the request for Ministerial intervention did not meet the guidelines for referral to the Minister (MI referral determination).[9]

   [8] CB 352, 361

   [9] CB 363

Tribunal decision

1. The Tribunal identified that the issue in the present case was whether the Minister had approved the relevant nomination by the company for the purposes of clause 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[10] Clause 186.223 required that the position to which the application related must have been the subject of an application for approval of a nominated position, and that the nomination had been approved and not subsequently withdrawn.[11]

   [10] CB 354, [9]

   [11] CB 354, [10]

2. The Tribunal noted that the application for approval of the nominated position made by the company was refused by a delegate of the Minister on 15 August 2016.  The company sought review of that delegate’s refusal,[12] but on 14 July 2017, the Tribunal received notice from the company that the nomination review application had been withdrawn.[13]

   [12] CB 354, [11]

   [13] CB 354, [12]

3. The Tribunal had regard to Mr Patoliya’s response to the s.359A letter, which claimed that he had been the victim of abuse, bullying, underpayment and threats to cancel his visa by the company. When Mr Patoliya asked the company to pay him in accordance with his contract of employment, he was told that his visa application would be withdrawn. Mr Patoliya requested additional time in which to find a new employer.[14]  He had lodged an official complaint and engaged a lawyer to proceed with a claim to the Fair Work Ombudsman.[15]

   [14] CB 355, [14]

   [15] CB 355, [15]

4. At the hearing, the applicants’ representative informed the Tribunal that the applicants were aware that the company’s nomination had been withdrawn, and as a result, the visa application could not be successful.  He stated that the purpose of pressing the application before the Tribunal was “to access the Minister’s power to personally intervene”.[16]  Mr Patoliya confirmed that he understood that withdrawal of the company’s nomination meant that the Tribunal must affirm the decision of the delegate, and requested that the Tribunal refer the matter to the Minister “for the sake of justice”.[17]

   [16] CB 355, [16]

   [17] CB 355, [17]

5. The Tribunal proceeded to affirm the decision under review, noting that both Mr Patoliya and his representative had acknowledged that the company had withdrawn its nomination review application.[18] The Tribunal was satisfied that, on the evidence before it, the company’s nomination application had been withdrawn, and that accordingly, Mr Patoliya did not meet clause 186.223 of the Regulations.[19]  Accordingly, the Tribunal affirmed the decision under review.[20]

   [18] CB 355, [19]

   [19] CB 356, [22]

   [20] CB 356, [23]

6. However, the Tribunal considered that the applicants’ situation may involve exceptional circumstances and that it was appropriate for it to request that the case be brought to the attention of the Minister under s.351 of the Migration Act.[21]

   [21] CB 356, [26]-[35]

The present proceedings

1. These proceedings began with a show cause application filed on 9 February 2018.  The applicants continue to rely upon that application.  There are seven grounds in it: 

   1.Administrative Appeals Tribunal (Second Respondent) breached their common law duty by not acting with procedural fairness while making its decision in affirming the decision of the Department.

   2.Tribunal by making their decision with a predetermined mind to affirm department's decision to not to grant visa to applicant denied the applicant a fair hearing.

   3.Tribunal in its decision has emphasised that company originally employing the applicant has withdrawn their nomination application.

   4.Tribunal has considered irrelevant information as the nomination for 186 application was still current and not withdrawn by the employer at the time of the hearing.

   5.Tribunal also made error of law by failing to identify whether the nomination application was assessed by department.

   6.Tribunal affirmed its decision only after receiving the decision of refusal by department of the new nomination application, as it was based on assumption that new nomination was refused which looks like a predetermined decision by the tribunal without considering material evidence at the time of hearing.

   7.Tribunal informed the applicant at the time of hearing that his nomination was withdrawn by the sponsor, his application for review will most likely be refused. However, new nomination application was refused by the department of home affairs after the hearing at the tribunal. Therefore, this creates jurisdictional error.

   (errors in original)

2. The application is supported by an affidavit filed with it, which I received as a submission.  I have before me as evidence the court book filed on 4 April 2018. 

3. I invited oral submissions this afternoon from Mr Patoliya.  He is understandably furious at what has occurred.  On his own account, he is a victim of abuse of the 457 visa program.  As explained to me, he was over a long period not paid his entitlements.  Even worse, he asserts tax fraud.  He has raised that issue with the Australian Taxation Office.  Mr Patoliya has been told that he will be part of a process of making good the underpayment of his employee entitlements.  He has not to date, however, received any money.  As I said to him in oral argument, it would be open to him to make a complaint to the Fair Work Ombudsman.[22]  To the extent that provisions of the Fair Work Act 2009 (Cth) have been breached, the Fair Work Ombudsman is the appropriate authority to deal with that breach.

   [22] He has not yet followed through on his expressed intention to make that complaint, apparently because he was asked not to by the company

4. The case discloses what appears to be a fatal flaw in the 457 visa program. That is the employer nomination requirement. In this case that was, so Mr Patoliya submits, used as a weapon to keep him silent. Moreover, he believes the nomination assessment process was artificially drawn out to deprive him of a permanent migration outcome. No doubt in view of these matters, which Mr Patoliya also explained to the Tribunal, the Tribunal properly referred the matter to the Minister for consideration under s.351 of the Migration Act. The Minister’s Department, however, took the view that the case did not meet the guidelines for referral to the Minister.

5. It is important that the Commonwealth support employees who are victims of abuse of the 457 visa program.  It is particularly important that those adversely affected by abuse of the program are not prematurely removed from Australia in order to sweep that abuse under the carpet. 

6. All of these issues, while at the forefront of Mr Patoliya’s mind, are extraneous to these proceedings.  These proceedings concern the validity or otherwise of the Tribunal decision.  Unfortunately for Mr Patoliya, the issues raised in his application are not arguable.  Because the employer nomination was withdrawn, an essential criterion for the grant of the visa could not be met.  Because of that missing element, the Tribunal had no option but to affirm the decision of the delegate. 

7. The Minister’s submissions deal appropriately with the legal issues arising out of the grounds of review. 

8. Ground 1 asserts that the Tribunal “breached their common law duty by not acting with procedural fairness while making its decision”.

9. On the face of the decision record and the material before the Court, this contention is without merit. As set out above, the Tribunal wrote to the applicants pursuant to s.359A of the Migration Act, advising them that the company had withdrawn its nomination, informing them that it was a requirement for their visa application that the nomination had been approved, and inviting them to respond in writing. That letter provided clear particulars of information the Tribunal considered would be the reason, or part of a reason, for affirming the decision under review. The Tribunal also wrote to the applicants inviting them to a hearing, pursuant to s.360 of the Migration Act, and in doing so complied with the requirements set out in s.360A. Both letters were sent as required under s.379A and s.379C. No arguable breach of the Tribunal’s procedural fairness obligations is established.

10. Grounds 2 and 6 allege bias, in that the Tribunal reached its decision with a “predetermined mind”.  The applicants have not filed any evidence in support of the allegation, which is serious and must be firmly and distinctly made and clearly proven.[23]  The Tribunal put to Mr Patoliya that if he was not subject to an approved nomination that had not subsequently been withdrawn it would be obliged to affirm the delegate’s decision.  However, the issue before the Tribunal was a narrow one and this does not suggest that the Tribunal entered the review other than with a mind open to persuasion.[24]  Further, it is not apparent that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on the decision.[25]  Accordingly, these allegations do not advance an arguable case for the relief sought.

    [23] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 531

    [24] Jia Legeng at [69], [71]-[72], [127]

    [25] Webb v R (1994) 181 CLR 41 at 70-71; SZRUI v Minister for Immigration [2013] FCAFC 80

11. Grounds 3, 4 and 5 relate to the manner in which the Tribunal dealt with the withdrawn nomination review application:

    a)ground 3 contends that the Tribunal “in its decision has emphasised that company originally employing the applicant has withdrawn their nomination application”;

    b)ground 4 is a contention that the Tribunal considered irrelevant information, “as the nomination for 186 application was still current and not withdrawn by the employer at the time of the hearing”; and

    c)ground 5 asserts that the Tribunal made an error of law by “failing to identify whether the nomination application was assessed by department”.

12. The argument that the applicants seek to advance by these grounds is not entirely clear, but they appear to proceed on the basis that the nomination application was current and not withdrawn at the time of hearing.  Plainly, this was not the case; both Mr Patoliya and his representative acknowledged at the Tribunal hearing that the company had withdrawn its nomination review application.[26]  The basis on which Mr Patoliya now resiles from this position is not apparent.  In any event, these grounds of review fail factually and as such are incapable of establishing any jurisdictional error. 

    [26] CB 355, [16]

13. By Ground 7, the applicants contend that the fact that a new nomination application was refused following the hearing has created a jurisdictional error.  There is no evidence before the Court of any nomination application other than that which was withdrawn by the company.  No arguable jurisdictional error is identified by this ground. 

Conclusion

1. I conclude that Mr and Ms Patoliya are unable to advance an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application filed on 9 February 2018 be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  Mr Patoliya raised a number of matters concerning his general circumstances, but did not wish to be heard on costs. 

3. I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       4 December 2018