Power v Minister for Home Affairs

[2018] FCCA 2359

FEDERAL CIRCUIT COURT OF AUSTRALIA

POWER v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2359

Catchwords:
MIGRATION – visa cancellation – 457 visa – where applicant no longer in de facto relationship with primary applicant – whether tribunal failed to take into account relevant considerations – medical reports – no error established.

Legislation:

Migration Act 1958 (Cth), s.116

Cases cited:

Applicant WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 236 FCR 593

Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123

Applicant: DANIEL POWER

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 592 of 2018

Judgment of: Judge Baird

Hearing date: 13 August 2018

Date of Last Submission: 13 August 2018

Delivered at: Sydney

Delivered on: 13 August 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms C Hillary of DLA Piper

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,900.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 592 of 2018

DANIEL POWER

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore, revised from transcript)

1. This is an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 13 February 2018, which affirmed the decision of the Delegate of the First Respondent, the Minister for Home Affairs, made on 3 May 2017 to cancel Mr Power’s sub-class 457 Temporary Work (Skilled) Visa under s.116 of the Migration Act 1958 (Cth). The Delegate cancelled Mr Power’s Visa under s.116(1)(a), on the basis that Mr Power was no longer in a relationship with his former partner who was the primary applicant for the sub-class 457 Visa.

2. Section 116(1)(a) of the Act provides in part that:

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

   (a)the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; …

   (2)The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) 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), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

Background

1. Mr Power does not disagree with the fact that he is no longer in a relationship with his former partner who was the primary visa holder.  He did not dispute that fact before the Tribunal or the Delegate.

2. Mr Power is a citizen of the United Kingdom. He first arrived in Australia in May 2013 on a holiday visa.  He met his former partner in Australia in August 2014, left Australia and returned to Australia on a tourist visa, and has held some other visas since then. 

3. On 14 March 2016 Mr Power was granted a sub-class 457 Visa as a dependent on the basis of his de facto relationship with the primary applicant of that application. 

4. On about 12 April 2017, Mr Power wrote to the Department for Immigration and Border Protection informing the Department that through no choice of his own, his relationship was at an end and through no choice of his own. He asked for the Department’s consideration to allow him the opportunity to stay in Australia, and be with his sister, and watch his niece grow up. 

5. On 19 April 2017 the Delegate informed Mr Power of the Minister’s intention to cancel his Visa on the basis that the decision to originally grant the Visa had been based wholly or partly on a particular fact or circumstance that is no longer the case, or that no longer exists.  That is, put simply, that it appeared that Mr Power was no longer a member of his former partner’s family unit. 

6. On 23 April 2017, Mr Power provided a response to the Delegate, confirming that his relationship had ceased, and provided some following claims:

   (a)his de facto partner had broken up with him as she wanted an open relationship;

   (b)he subsequently lost his house and was left financially broke;

   (c)his parents were hoping to settle in Australia but would be unable to do so if he was not granted permanent  residency; 

   (d)he had nowhere to live in the UK, no job prospects, and no close family there; and 

   (e)he had a great employer in Australia who was willing to sponsor him as a carpenter. 

7. On 3 May 2017, the Delegate cancelled Mr Power’s Visa under s.116(1)(a) of the Act.

8. On 10 May 2017, Mr Power lodged an application for review of the Delegate’s decision with the Tribunal, and on 8 January 2018 Mr Power’s migration services adviser provided submissions to the Tribunal addressing why the Visa should not be cancelled.  In those submissions, and documents supporting those submissions, the migration agent submitted that Mr Power was suffering from severe anxiety and depression and provided letters from Mr Power’s treating doctor. 

9. On 9 January 2018, Mr Power’s migration representative provided further documents in relation to Mr Power’s employment, specifically a reference from his current employer. 

10. The Tribunal conducted a hearing on 10 January 2018, which Mr Power attended with the assistance of his then migration agent. Mr Power’s mother, father, and sister also attended and each gave evidence (as I note from [21], [22], [23], and [24].

11. After the hearing, Mr Power’s representative provided further information in relation to Mr Power’s employment and qualification, specifically, a more comprehensive current employment reference, a certificate from a recognised entity recognised within the Australian qualifications framework that Mr Power had fulfilled the requirements for a Certificate III in carpentry, and a record of results specifying units of competency dated 29 January 2018. 

12. As I have said, on 13 February 2018 the Tribunal affirmed the decision under review.  On 6 March 2018 Mr Power applied to this Court seeking judicial review of the Tribunal’s decision.

Tribunal’s findings

1. The Tribunal had a two-fold task. Its first task was to assess whether there were grounds for the cancellation of the Visa under s.116 of the Act. The Tribunal noted in that regard that Mr Power acknowledged he was no longer the de facto partner of the primary applicant, and therefore no longer a member of her family unit. The Tribunal found that the Visa was granted to Mr Power on the basis that he was such a de facto partner. As this was no longer the case then the Tribunal was satisfied that the ground for cancellation under s.116(1)(a) of the Act existed: at [31] of the Tribunal’s decision.

2. The Tribunal’s second task was to consider whether to exercise its discretion to cancel the Visa. In that regard it noted that there were no matters specified in the legislation that it must consider in relation to the exercise of discretion.  The Tribunal noted that it had considered the relevant circumstances, including but not limited to government policy guidelines, known as PAM3: at [33] of the Tribunal’s decision.

3. The Tribunal then noted a number of matters and I list them as follows in the following paragraphs.

Basis for grant of visa

1. First, at [34] that the basis of the grant of the visa to Mr Power had been that he was a member of a family unit of the primary applicant and there was no information before the Tribunal that Mr Power would meet the criteria for the grant of any other visa at the time, or at any other time that he held that Visa on the basis of being a member of the family unit of the primary applicant. 

Desire to remain in Australia

1. Secondly, at [35] that Mr Power has a desire to be able to remain living in Australia.  His sister lives here and his parents, as at the date of the Tribunal decision, were in Australia on visitors visas and have stated that it is their intention to apply for a contributory parent visa, but would require Mr Power to be in Australia to meet the balance of the family test to satisfy the criterion of that visa, and his parents had no right to reside permanently in Australia. 

Breakdown of relationship not his fault

1. Thirdly, at [36], that although Mr Power claimed that the breakdown of his relationship with the primary applicant was not his fault, it was the fact that the only reason he was granted the Visa, or had the right to reside in Australia, was because of that relationship.  For whatever reason that relationship has come to an end, and the basis for which Mr Power had the right to reside in Australia had ceased.  The Tribunal noted that there was no information – in the double negative – that there was no information that Mr Power had not complied with all visas which had previously been granted to him. 

2. The Tribunal did note, however, that Mr Power did not advise the Department of the breakdown of his relationship until he was contacted by the Department itself as to this issue.  At [39] the Tribunal accepted that Mr Power was likely to suffer some hardship if his Visa was cancelled, and the Tribunal referred to Mr Power’s wish to remain in Australia and his sisters and parents currently being in Australia.  And as I have said, that his parents would only meet the balance of family test if Mr Power were a permanent resident in Australia.

No information before the Tribunal

1. Fourthly, at [39] the Tribunal stated that there was no information before it that Mr Power would meet the criteria for the grant of the Visa giving him permanent residence in Australia at this time. 

Applicant able to support himself

1. Fifthly, at [40] the Tribunal found that Mr Power did not have any significant financial resources in Australia, and that if he were required to return to the United Kingdom he would face some difficulties in immediately obtaining employment, but noted that in the past he had been able to support himself, living in London.  It noted that the Applicant has recently commenced work as a carpenter, and noted previous work history and qualifications.  The Tribunal stated that Mr Power has shown himself to be able to find accommodation for himself in Australia, as well as find employment, and that:

   He has received the support of his parents in the past and there is nothing to indicate that he would not continue to receive this support from his parents if he were required to return to the United Kingdom.

Applicant’s anxiety and medical reports

1. I set out [41], [42], and [43] of the Tribunal’s decision in full, as they have been referred to during oral submissions today: 

   [41]  It is claimed that the applicant suffers from severe anxiety, depression and panic attacks. A mental health plan was prepared by Dr Barry on 3 January 2018. It is noted that in the documents provided from Dr Barry there was no past history of any condition recorded and the applicant was not shown to be receiving any current medications. This was inconsistent with the information provided by the applicant which was that he had consulted a doctor about the time of his relationship breakdown in February 2017 and had been prescribed medication, but that he did not continue taking the medication for more than a week. The applicant claimed that he had consulted a doctor about six years prior to the hearing in the United Kingdom in relation to depression.

   [42] Throughout the time that the applicant has claimed to have suffered depression, he has been able to arrange his affairs, including arranging accommodation, obtaining employment and claiming to have continued studies in Australia. Although the applicant may be suffering from some degree of depression and suffering a mental illness arising from the breakdown of his relationship and the cancellation of his visa, he has been able to continue functioning as a productive member of society despite any condition he may be suffering. The reference provided by the applicant’s employer described him as ‘a great employee’ and someone who ‘has always been willing to go that extra mile’. This does not indicate a person who is suffering from a mental illness to such an extent that he could not care for himself or it would provide a reason not to cancel his visa.

   [43] The applicant has previously obtained medical assistance in the United Kingdom in relation to depression. There is nothing to indicate that the applicant would not be able to access any appropriate assistance or medication he may require due to any mental illness he may suffer from if he were to return to the United Kingdom.

Circumstances in which cancellation arose

1. At [44]–[49] the Tribunal described the circumstances in which the ground for cancellation of the Visa arose and the position that Mr Power communicated with the Department advising of the ending of that relationship when prompted by the Department. 

2. At [49] the Tribunal stated:

   It is a responsibility of all visa holders to advise the Department of any change in their circumstances which affects the basis for which they were granted a visa. Even though the applicant was granted the visa as a secondary applicant of [the primary applicant], the Tribunal does not accept that the applicant would not have been aware of his responsibility to advise the Department of any change in circumstances which would have affected the validity of the visa granted to him. The fact that the applicant failed to advise the Department of the end of his relationship with [the primary applicant] does him no merit.

3. The Tribunal expressed some disapproval of the fact that Mr Power failed to advise the Department of the end of his relationship unprompted. 

4. The Tribunal then, at [50], recorded that Mr Power has otherwise communicated promptly with the Department and with the Tribunal.

5. In concluding my overview of the Tribunal’s decision, I note that the Tribunal at [53] referred to Mr Power recently commencing employment as a carpenter, and that the only evidence from an employer that he had been employed was the reference from the company that was his then employer, which stated that he had worked for them since September 2017. 

6. At [54] the Tribunal referred to Mr Power’s statement in April 2017 that he was looking to go to TAFE in May to continue his education and become a fully certified carpenter, but said that there was nothing before the Tribunal to indicate that Mr Power had enrolled in TAFE or any other recognised educational institution to undertake any training or education to obtain qualifications as a carpenter. 

7. At [55], however, the Tribunal expressly referred to the Certificate III in carpentry awarded to Mr Power by Train N Trade dated 29 January 2018, and to the record of results which indicated that all units of competency had been granted to Mr Power based on recognised prior learning.  The Tribunal recorded that it did not have any information for the basis of the prior learning that Mr Power was assessed as possessing. 

8. At [56] the Tribunal noted that there was no information before it that Mr Power’s current employer had been approved as a sponsor by the Department.  The Tribunal noted that Mr Power was not subject to a current nomination application, and that there was no information before it that would indicate that Mr Power would meet the criteria for the grant of that visa, being (the equivalent of) a 457 visa, if sponsored by his then current employer. 

9. The Tribunal recorded at [57] that the claim that Mr Power would be applying for a 457 visa in Australia if the Visa were not cancelled is merely speculative, and that there was nothing to stop Mr Power, should he meet the criteria for the grant of a visa, from applying for a visa offshore.

10. The Tribunal considered all the circumstances of the application, and the evidence before it, and weighing the circumstances up as a whole concluded that the Visa should be cancelled. 

11. I have set out the above of the Tribunal’s decision in some detail because Mr Power’s grounds of review take issue with many of the findings of the Tribunal. 

Grounds of judicial review

1. Mr Power, in his application, set out 7 grounds of review as follows (without alteration):

   1.Tribunal Member challenged statement by a specialized witness (Australian Registered Psychologist) on basis that Applicant was employed full time and therefore may not have been suffering from a Mental Illness.

   2.Tribunal Member challenged claims made by the applicants Mental Illness, by inferring that Applicant must not have been suffering a Mental Illness as he was not prescribed or had not taken prescription medication relating to such an Illness.

   3.Tribunal Member by conduct unlawfully assessed the Applicant's psychological state of mind and illness without required qualifications, experience or specialized knowledge in the field.

   4.The Tribunal failed to refer applicant to an independent Psychologist or provide an opportunity for further health assessment.

   5.Tribunal Member made the assumption that the mother and father of the applicant could support the applicant, the applicant being a 31 year old independent male.

   6.The Tribunal Member did not take into account the applicants qualifications and skills as a Carpenter in Australia, as well the need for Carpenters in Australia.

   7.The Tribunal failed to provide sufficient weight to the Applicants employment and the affect on an Australian Business.

2. In support of those grounds Mr Power provided a short affidavit dated 6 March 2018, the substantive 2 paragraphs of which read:

   1.Reasons for visa cancellation was unfair.

   2.The Tribunal member challenged the statement by a specialised witness despite lack of knowledge and expertise.

The proceedings in this Court

1. Before me today Mr Power has appeared unrepresented and has made oral submissions.  I informed him of the cost consequences of proceeding with his application before this Court, and he confirmed that he sought to rely on the 7 grounds in his application, and that he did not have any additional evidence.

2. Mr Power made submissions, which tracked the grounds of his ground of his application to the Court.  He indicated to me that he has a bridging visa whilst his application for review is on foot, and said that he has been given an opportunity by a building company to be sponsored. I infer that is for a skilled visa. 

3. I explained that the role of this Court is not to review other applications for visas, but to review the decision of the Tribunal in relation to its cancellation of his Visa, and that the Court does not have jurisdiction generally to engage in a reconsideration of the facts, but is concerned to see whether there were legal problems in the way that the Tribunal has undertaken its task.

4. In relation to grounds 1 to 4 of his grounds of review, Mr Power submitted, and I accept, that many people suffer from mental illness and nonetheless function successfully in society.  Mr Power gave the example of Kate Spade who was both highly successful, and recently committed suicide.  He submitted that the Tribunal made an assumption that he was not suffering from a mental illness because he was holding down a job and had somewhere to stay (which was his sister’s place).  He also submitted that the Tribunal assumed that just because he was not taking his medication, or because it assumed that he was not truthful, that he didn’t suffer from depression.   

5. In relation to ground 5, he made submissions about his father giving evidence, but accepted that his father did say what is set out at [22] of the Tribunal’s decision. 

6. In relation to ground 6, Mr Power made submissions in relation to his qualifications with Train N Trade, and his further learning, and his still current plans to attend TAFE.  

1. He submitted, and the Tribunal’s decision records, that Mr Power has never breached any visa requirements of any valid visa he was holding.  He also submitted that he was happy to apply for a visa offshore and could go offshore for a short time, that he had been unable to get clarity from various advisers, and his personal circumstances regarding his sister’s upcoming marriage in February next year.  Those matters, however, are beyond the jurisdiction of this Court to consider.  This Court’s role is confined to a consideration of the Tribunal’s decision, and how the Tribunal came to that decision. 

2. Ms Hillary, solicitor for the Minister, provided written submissions and made oral submissions.  In my consideration of Mr Power’s grounds of review, I incorporate Ms Hillary’s submissions where relevant. 

Consideration

1. As I have already said, the Tribunal faced a double task.  Its first task was to see whether there was a ground for cancellation of the Visa, and it found properly that there was such a ground, namely, that Mr Power’s relationship with his former partner, the primary applicant had ended. 

2. In relation to grounds 1 to 4, these can be grouped together as all making complaints about the Tribunal’s findings in respect of Mr Power’s mental health.  It is incorrect to say, as grounds 1 and 2 do, that the Tribunal found that Mr Power may not be suffering from a mental illness.  At [41] – [42] the Tribunal addresses the medical evidence submitted to it on behalf of Mr Power.  At [42], the Tribunal expressly stated that although Mr Power may be suffering from some degree of depression and suffering a mental illness arising from the breakdown of his relationship and the cancellation of his Visa, he has been able to continue functioning as a productive member of society despite any condition he may be suffering.

3. It is clear, and I so find, that in [42] of its decision, the Tribunal accepts that Mr Power has been suffering.  It notes that Mr Power has been a productive member of society despite his mental illness.  The Tribunal concluded that the information before it did not suggest that Mr Power was suffering from his mental illness to such an extent that he could not care for himself, or that it would provide a reason not to cancel his Visa. 

4. At [41] the Tribunal refers to the doctor’s report, and the mental health plan prepared by Mr Power’s doctor in January 2018.  The Tribunal notes that the documents provided from that doctor disclosed that there was no past history of any condition recorded.  The report itself was blank as to any past history.  Mr Power was not shown to be receiving any current medications.  

5. The Tribunal noted an inconsistency between that doctor’s report, and the evidence of Mr Power himself.  But that is not a challenge of a statement of a specialised witness.  The Tribunal accepted that Mr Power may be suffering a mental illness, but noted that the doctor’s report did not identify that he was taking any current medication.  The Tribunal did not make an assessment of Mr Power’s psychological state of mind and illness, but, rather, found on the evidence before it that that Mr Power’s mental illness was not a reason not to cancel his Visa.  I find that these findings were open to the Tribunal on the evidence before it.

6. In relation specifically to ground 4, that the Tribunal failed to refer Mr Power to an independent psychologist or provide an opportunity for further health assessment, as Ms Hillary for the Minister submits, the Tribunal has no general duty to inquire.   Ms Hillary refers to the High Court decision in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123. It is for an applicant to put before the Tribunal the facts and circumstances on which they rely in support of their application. There was no obligation on the Tribunal to refer Mr Power to an independent psychologist. It is also apparent from the hearing record and from the post-hearing correspondence that Mr Power did not request a further opportunity to provide additional information in relation to his mental health.

7. It is apparent that Mr Power’s migration agent did request, and was provided, an opportunity to submit post-hearing information, and that Mr Power’s migration agent was given an extension of time to 8 February 2018 in which to provide information.  The information that Mr Power’s migration representative provided was, as I have already said, a more comprehensive employment reference, the Certificate III in carpentry, and a transcript of results. 

8. Thus I find that, there not being any evidence of any request for a further opportunity to provide additional information in relation to his mental health, the Tribunal could not have erred by not considering a request that was not made.  It follows that in relation to grounds 1 to 4 of the grounds of review are not made out.

9. I turn to ground 5, which is an allegation that the Tribunal member made an assumption that Mr Power’s parents could support him, he being a 31 year old independent male.  At [40] in its decision the Tribunal noted that Mr Power had received the support of his parents in the past, and that there was nothing to indicate that he would not continue to receive that support. 

10. I refer to [22] of the Tribunal’s decision in which the Tribunal outlines Mr Power’s father’s belief that he and his wife would return to England to help support their son in the United Kingdom.  There does not appear to have been anything to indicate that Mr Power would not continue to receive the support of his parents.  I note also the Tribunal’s reference at [58] included reference to a likelihood of some emotional and financial support Mr Power’s parents in the future if required. 

11. In the circumstances of the evidence before the Tribunal I find that it was open to the Tribunal to make the observations it did at [40] and [58] and to reach its findings on the likelihood of parental support.  In such circumstances as are set out at [22] of its decision, it could not be said that the Tribunal was assuming parental support, but rather made a finding based on the evidence orally given at the hearing by Mr Power’s father.  No error is established.

12. As to ground 6, that the Tribunal did not take into account Mr Power’s qualifications and skills as a carpenter, the Tribunal expressly considered Mr Power’s qualifications at [25]–[27], and [55]. It is apparent on the face of the decision record that Mr Power’s qualifications were considered and taken into account. The Tribunal did not expressly refer to the need for carpenters which was submitted in Mr Power’s representative’s submissions of 8 January 2018 (described at [9]), but at [56] of the Tribunal decision, noted that there was no information before it to suggest that Mr Power would meet the criteria for the grant of a 457 visa, noting that Mr Power was not the subject of a current nomination application.

13. There is nothing to suggest that the non-cancellation of Mr Power’s Visa would have any effect on any claimed need for carpenters in Australia.  Further as submitted by the Minister’s solicitor, by reference to Applicant WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 236 FCR 593 at [47], the reasons are otherwise comprehensive, and this claim is subsumed by findings of greater generality. I find that the Tribunal has not fallen into jurisdictional error, and ground 6 is not made out.

14. Ground 7 is that the Tribunal failed to provide sufficient weight to Mr Power’s employment and the effect on an Australian business.  Ms Hillary has submitted, and I accept, that this ground goes no higher than to seek a merits review, which is impermissible in this Court.  The Court has no jurisdiction, and the ground does not reveal any error by the Tribunal. 

Conclusion

1. The Tribunal made findings that were open to it on the evidence before it, and in exercising its discretion it weighed up that evidence.  I find that it did not fall into any jurisdictional error in so finding and concluding.  It follows that the application should be dismissed and that Mr Power should be ordered to pay the Minister’s costs in a fixed amount.  I will so order. 

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date: 31 August 2018