Prajapati v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 761
•21 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Prajapati v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 761
File number(s): SYG 3336 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 21 August 2024 Catchwords: MIGRATION – Whether Tribunal erred in exercise of discretion to cancel visa – whether applicants denied procedural fairness Legislation: Migration Act 1958 (Cth) ss 137Q, 137T, 359AA
Migration Regulations1994 (Cth) reg 2.50AA
Cases cited: EQU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1168
Kaur v Minister for Immigration and Border Protection [2017] FCCA 2877
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
Singh v Minister for Immigration and Border Protection (2018) 330 FLR 318
Singh v Minister for Immigration and Border Protection (2018) 265 FCR 411
Su v Minister for Immigration and Border Protection [2016] FCCA 83
SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152
Zhang v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 656
Division: General Federal Law Number of paragraphs: 76 Date of hearing: 23 May 2024 Place: Sydney Applicants: In person Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 3336 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANDIPKUMAR GOVINDBHAI PRAJAPATI
First Applicant
HETALBEN SANDIPKUMAR PRAJAPATI
Second Applicant
SAANVI SANDIPKUMAR PRAJAPATI (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
21 AUGUST 2024
THE COURT ORDERS THAT:
1.The application made on 18 December 2019 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application filed on 18 December 2019, by which the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 November 2019, affirming a decision of a delegate of the first respondent (delegate) to cancel the Regional Sponsored Migration Scheme (Subclass 187) visa (visa) held by the first applicant (applicant).
In respect of the second, third and fourth applicants, the Tribunal consequently made a decision that it had no jurisdiction.
BACKGROUND
The background to this matter is derived primarily from the submissions of the first respondent and, unless otherwise indicated, does not appear to be in dispute.
The applicants are citizens of India.[1] The first and second applicants are husband and wife. The third and fourth applicants are their daughters, who were born in Australia and are 15 and 8 years old (respectively).
[1] The third applicant apparently became an Australian citizen by acquisition on 20 March 2019
On 12 May 2016, the applicant was granted the visa on the basis that he was offered the position of Fleet Manager at Mark’s Fuel Delivery Pty Ltd (sponsor) (Court Book (CB) 14). The remaining applicants were granted the visa as the applicant’s dependents.
On 24 January 2019, the Department issued the applicant a notice of proposed cancellation (Notice) under s 137Q of the Migration Act 1958 (Cth) (Act) (CB 14 to 17). The reason for the proposed cancellation was said to be that the applicant’s employment with the sponsor was terminated within the ‘required employment period’ of 2 years under s 137Q(2)(a)(ii) of the Act. The applicant was invited to provide a response within 28 days.
On 12 February 2019, the applicant provided his response to the Notice. In a statement dated 6 February 2019, the applicant said that his employment ended on 4 October 2016 because he was told that the position was no longer available in Queensland (CB 26). The applicant said the family moved back to Sydney in July 2017 after he discovered that his eldest daughter was being bullied at school (CB 27 to 28).
On 6 March 2019, the delegate made a decision to cancel the applicant’s visa pursuant to
s 137Q(2) of the Act (CB 97 to 113).
The delegate referred to a conversation he had with the nominating employer about the reasons behind the applicant’s termination, which was inconsistent with the applicant’s statements to the Department. The nominating employer reported that the applicant initiated the termination and had requested a separation certificate stating that his employment was terminated on the basis that the nominated position was no longer available (CB 106). By contrast, the applicant told the Department that his employment was terminated because the position was no longer available as a result of a downturn in business (CB 106).
The delegate was satisfied that a ground for cancellation existed and thereafter also exercised her discretion to cancel the visa. By reason of the cancellation decision, the visas held by the second, third and fourth applicants were automatically cancelled pursuant to s 137T(1) of the Act.
On 14 March 2019, the applicants applied to the Tribunal for review of the delegate’s decision and appointed their migration agent as their authorised recipient (CB 114 to 116). On 11 July 2019, the Tribunal invited the applicants (via their authorised recipient) to attend a hearing (CB 123 to 126).
On 22 August 2019, all the applicants attended a hearing before the Tribunal to give evidence and present arguments, with an interpreter in the Gujarati language (CB 130 to 131). The applicants’ migration agent was also present. On 27 August 2019, the Tribunal invited the applicants (via their authorised recipient) to a further hearing (CB 136 to 139). The applicants each attended the second hearing of the Tribunal which took place on 10 October 2019. An interpreter in the Gujarati language was also present, as was their migration agent (CB 140 to 141).
On 16 October 2019, the applicants provided post-hearing submissions (CB 142 to 147).
On 22 November 2019, the Tribunal affirmed the decision under review (CB 180 to 196).
Tribunal decision
In reaching its decision, the Tribunal (CB 180 to 196):
(a)set out the relevant background of the matter, the delegate’s decision and the evidence given at the Tribunal hearings (CB 181 to 188 at [1] to [52]);
(b)accepted the applicant attended an induction with the sponsor, however found that his evidence suggested that he had never commenced employment with the sponsor. As such, the Tribunal found that s 137Q(1) of the Act was satisfied (CB 188 to 190 at [53] to [65]);
(c)found that even if it was wrong about whether the applicant had commenced working for the sponsor, s 137Q(2) of the Act was also enlivened because the applicant’s employment ceased within 2 years of the visa grant (CB 190 at [66] to [70]);
(d)considered whether the applicant made a genuine effort to commence, or remain engaged in, the employment. The Tribunal accepted the applicant had relocated to Rockhampton, and noted the inconsistency between the evidence of the sponsor and the applicant regarding the cessation of his employment, but ultimately preferred the sponsor’s evidence that the applicant resigned from his employment (CB 190 to 191 at [71] to [74]);
(e)found that the applicant was not a witness of truth and was critical of the applicant for not notifying the Department about his change in circumstance (CB 192 at [76]); and
(f)noted that the applicant had told the Department on 22 August 2017 that he was still employed by the sponsor. The Tribunal found that this information was incorrect as the applicant had subsequently acknowledged that his employment with the sponsor ceased on 4 October 2016. The Tribunal noted the applicant’s explanation for the inconsistency, but was not satisfied by it. The Tribunal rejected the applicant’s evidence that he continued to engage with the sponsor in the hope of securing employment. As such, the Tribunal found the applicant had not made a genuine effort to commence or continue with his employment (CB 191 to 192 at [75] to [81]).
Having found that there were grounds for cancelling the visa under s 137Q(2) of the Act, the Tribunal considered whether it should exercise the discretion to cancel the visa.
The Tribunal noted there were no matters specified in the Act or the Migration Regulations1994 (Cth) (Regulations) to which it was mandated to have regard (CB 193 at [84]). However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal did have regard to the Department’s Procedure Advice Manual PAM3 ‘Regional sponsored employment visa cancellation’ (PAM3) (CB 193 at [84]).
The Tribunal found that the purpose of the applicant’s stay in Australia was to commence and maintain employment in the nominated role (CB 193 at [85]). It found there to be no compelling need for the applicant’s family to otherwise remain in Australia (CB 193 at [86] to [91]). The circumstances in which the cancellation arose were found to not be beyond the applicant’s control because he did not make a genuine effort to commence employment (CB 194 at [98] and [110]). Further, the applicant was found to have not complied with his visa conditions (CB 194 at [95]) and to have been untruthful in his dealings with the Department (CB 194 at [100] to [101]). The Tribunal found these factors weighed in favour of cancelling the visa.
The Tribunal placed neutral weight on the considerations that the applicant’s wife and children would have their visas cancelled if the Tribunal affirmed the decision under review (CB 194 at [102] to [103]), the fact that the applicant did not claim to be a person in respect of whom Australia has protection obligations (CB 195 at [104] to [105]) and that cancelling the visa could lead to the applicant becoming an unlawful non-citizen (CB 95 at [106] to [107]).
The Tribunal accepted that the visa cancellation would cause hardship to the applicant’s family, in particular accepting that it would have a negative impact on the mental health of the children, which weighed against cancelling the visa (CB 194 at [93]).
Ultimately however, the Tribunal found that the applicant’s visa should be cancelled, and it affirmed the decision under review.
As a result of the automatic cancellation of the second, third and fourth applicants’ visas by operation of s 137T(1) of the Act, the Tribunal found that it had no jurisdiction with respect to those applicants (CB 195 to 196 at [109] to [114]): see Singh v Minister for Immigration and Border Protection (2018) 265 FCR 411 at [50] to [52] per Greenwood ACJ, Charlesworth and O’Callaghan JJ.
APPLICATION TO THIS COURT
These proceedings were commenced by an application to show cause filed with the Court on 18 December 2019. At the time the proceedings were commenced, the matter was initially docketed to another Judge of the Court (first primary Judge). On 21 February 2020, the first primary Judge made orders, which included that the first respondent file a Court Book by 20 March 2020, with leave to the applicants to file an amended application by 1 May 2020. Orders were also made at the time appointing the first applicant as the litigation guardian for the third and fourth applicants, being his (minor) children. The proceedings were to be listed for a final hearing before the first primary Judge on a date to be notified administratively to the parties. The proceedings were later placed in the central migration docket.
On 24 August 2024, the proceedings were called over before a Registrar of the Court by telephone, on which occasion the first applicant appeared. The matters were adjourned at large to be listed for hearing.
On 22 March 2024, the proceedings were docketed to me and I made orders on that date which included leave to the applicants to amend the application on, or by, 25 April 2024. The applicants did not avail themselves of that opportunity.
The Court Book was filed for the first respondent again on 13 May 2024, in circumstances where (I was informed from the Bar table) an earlier version of the Court Book had been removed from the Court file because it contained material which ought to have been redacted but had not been. The solicitor who appeared for the first respondent at hearing told the Court that there had been no substantive changes to the contents of the Court Book between the versions, other than redaction.
The applicants appeared before me in person with the assistance of an interpreter in the Gujarati language. The first respondent was represented by a solicitor. When asked if the applicant was going to make submissions on behalf of all of the applicants, he indicated that he and his wife would each make submissions to the Court. The third and fourth applicants, who are still children, remained in the courtroom at that juncture.
Evidence
The Court Book was tendered for the first respondent and marked Exhibit “1R”. The first respondent filed written submissions, as ordered, in advance of the hearing.
Other than their originating documents, the applicants have not filed any other documents since the commencement of the proceedings. In support of the originating application, the applicants filed an Affidavit made by the applicant which was read as being an addendum to the grounds of review (December Affidavit). That is because, by the application, the applicants referred to the grounds of review as being in the December Affidavit, by which the applicants appear to raise one matter which generally overlaps with the ground of review in the originating application.
When identifying the documents before the Court, the applicants sought to tender a number of new documents. The Court adjourned briefly so that photocopies could be made for the Court and for the solicitor for the first respondent, and to enable the documents to be considered by that solicitor. The documents can be described thusly:
(a)a colour photocopy of an Australian citizenship certificate in respect of the third applicant issued on 27 February 2020, together with a colour photocopy of the photo page of the third applicant's Australian passport issued on 11 March 2020;
(b)medical documents, being a letter dated 18 August 2023 written in respect of all of the family members, and two documents from an organisation called “Medimind” dated 16 April 2024 and 22 May 2024 respectively. Each of the Medimind documents relate to the second applicant and the recent state of her mental health; and
(c)the decision record in an unrelated Tribunal matter, ‘1607420 [2016] AATA 4152’, being a decision made on 25 July 2016 in respect of a different applicant who, the applicants confirmed to me at hearing, is entirely unrelated to them.
When asked what relevance the citizenship and passport documents referred to at [30(a)] above have to the review proceeding, the first applicant said that during one of the Tribunal hearings, the applicants had submitted these documents. The first applicant went on to assert that, according to Australian law, if a child is born in Australia and attains the age of 10 years of age, they become an Australian citizen and therefore their parents are also Australian citizens.
In respect of the submission that these documents had been put before the Tribunal, I indicated to the applicants that I did not consider that to be so, based on the fact that the issue dates of each of the passport and the citizenship certificate post-dated the Tribunal's decision (22 November 2019). As such, the Court did not accept that the documents had been given to the Tribunal. While the applicants may have had the intention of furnishing proof of the third applicant’s Australian citizenship, it could not have been with these documents. The solicitor for the first respondent curiously indicated that the first respondent was content for the documents to be received, apparently in support of some allegation (which was not in fact being made) as to the veracity of the joinder of the third and fourth applicants to the proceedings. On the basis that the documents post-dated the Tribunal's decision the tender of those documents was rejected on the basis of relevance to the task of this Court.
In respect of the medical documents (see [30(b)] above), each of the Medimind documents relate to the second applicant and the recent state of her mental health. Those documents were sought to be submitted in support of an allegation that the Tribunal somehow failed to take into account the psychological hardship which might befall the applicants if they were not entitled to stay in Australia. In respect of the Medimind documents, the second respondent submitted that, at the time of the Tribunal hearing, her mental health was not particularly bad, but it later become much worse.
The solicitor for the first respondent objected to the tender of the medical documents on the basis that they:
(a)post-date the date of the Tribunal's decision; and
(b)do not relate to the assessment of the relevant visa criteria in this review.
The solicitor for the first respondent made submissions to the effect that to the extent the applicants were now suggesting that their mental health had been affected at the Tribunal hearing, no such allegation had been made by the originating application and, in any event, such and assertion would not meet the criteria set out in Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 per Keane CJ and Emmett and Perram JJ (see also Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 per Gray, Cooper and Selway JJ).
To the extent that the medical documents could otherwise be suggested to support an application to the effect that the second applicant was not fit to participate in the hearing, no such application was made. In any event, even accepting the content of the documents (to the effect that the second applicant's mental health has been adversely affected by stress and anxiety caused by the uncertainty of the applicant's migration status), it is understandable but does not now give rise to a jurisdictional error in the Tribunal’s decision. Further, and as recorded below at [38], I am not satisfied that this impacted the ability of the second applicant, nor the first applicant, to make submissions to the Court. Accordingly, the medical documents were rejected.
The last document the applicants sought to tender was another applicant’s Tribunal decision record (see [30(c)] above). While accepting that the visa under consideration in that particular decision was of the same kind as in this matter, and that the issue before the Tribunal in that case also turned upon satisfaction of s 137Q of the Act, I am otherwise not persuaded that the document was relevant to the case before the Court. There is no precedential value in respect of another applicant's matter before the Tribunal. Notwithstanding the fact the visa class might be the same, each case must turn on its own facts and circumstances. Further, the applicants concede that the applicant in question is not related to them or their case in any way. Accordingly, tender of that document was also rejected.
Prior to considering the grounds, I also record that at several points during the hearing, the second applicant became emotional while making submissions. On the first of these occasions, I adjourned briefly to allow her to recompose herself, and my Associate gave her some water. While the second applicant was clearly upset by the prospect of not being allowed to remain in Australia, to my observation this did not affect her ability to understand what was going on in the courtroom or engage with the Court. In fact, the second applicant made eloquent submissions. However, watching their mother upset appeared to cause distress to the children who had been brought along by their parents to observe. The Court made arrangements for a conference room to be made available to them outside the courtroom, and they availed themselves of the opportunity to not be in the courtroom for the balance of the hearing.
LEGISLATION
Section 137Q of the Act provides as follows:
137Q Cancellation of regional sponsored employment visas
Employment does not commence
(1) The Minister may cancel a regional sponsored employment visa held by a person if:
(a) the Minister is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations; and
(b) the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that period.
Employment terminates within 2 years
(2) The Minister may cancel a regional sponsored employment visa held by a person if:
(a) the Minister is satisfied that:
(i) the person commenced the employment referred to in the relevant employer nomination (whether or not within the period prescribed by the regulations); and
(ii) the employment terminated within the period (the required employment period) of 2 years starting on the day the person commenced that employment; and
(b) the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period.
Regional sponsored employment visa
(3) In this section:
regional sponsored employment visa means a visa of a kind that:
(a) is included in a class of visas that has the words “Employer Nomination” in its title; and
(b) is prescribed by the regulations for the purposes of this definition.
Regulation 2.50AA of the Regulations provides:
2.50AA Cancellation of regional sponsored employment visas
For section 137Q of the Act, each item in the table sets out:
(a) a kind of visa that is a regional sponsored employment visa; and
(b) the period within which a holder of a visa of that kind must commence the employment referred to in the employer nomination.
Item Visa Period 1 Subclass 119 (Regional Sponsored Migration Scheme) visa 6 months from the date the holder first entered Australia as the holder of the visa 2 Subclass 187 (Regional Sponsored Migration Scheme) visa If the holder was in Australia on the date of grant of the visa, 6 months from the date of grant of the visa
If the holder was not in Australia on the date of grant of the visa, 6 months from the date the holder first entered Australia as the holder of the visa3 Subclass 857 (Regional Sponsored Migration Scheme) visa 6 months from the date of grant of the visa GROUND OF REVIEW
By the single ground of review in the originating application, the applicants allege the following (errors in original):
Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue) as mentioned in affidavit attached here with.
In addition, the ground is expanded on in the December Affidavit as below (emphasis added, errors in original):
The delegate in this case cancel to grant the visas on the basis that the applicant did not satisfy the requirements of under section 137 Q Of Migration Act 1958. because the delegate was not satisfied that the applicant Assessment of whether the Minster is satisfied that the person commenced employment and the employment terminated within the required employment period (s137Q(2)(a)).but department also accepted that Assessment of whether the person satisfies the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period (s l 37Q(2)(b )).The visa holder submits he made genuine efforts to remain engaged in that employment with Mark's Fuel Delivery Pty Ltd, and submitted documents to immigration and AAT .
I think I am become a victim of a procedure fairness issue/matter here as Administrative Appeals Tribunal has an error in my decision. This is not fair work by any department while making a decision and department or Tribunal should be fair to make it decision and must look into all necessary aspects.
It is the above portion of the December Affidavit highlighted in bold above which is taken to raise matters which augment the ground of review.
By the ground of review in the originating application, the applicants allege that the Tribunal did not act in the best interest of the applicant as detailed in the December Affidavit.
When asked at hearing how it was that the Tribunal had not acted in the best interests of the applicant/s, the first and second applicants made various submissions all of which can be summarised, with respect, as being matters which went to the merits of the visa application and/or their personal circumstances. It can be readily accepted that in the period since the applicants have both arrived in Australia, but moreover since the time of the Tribunal's decision and the commencement of these proceedings, they have continued with their lives. The applicant's children attend schools in Australia, and the third applicant is reasonably advanced in her studies. No doubt, the uncertainty of the applicant's migration status is a matter of stress and anxiety to the family. So much can be accepted. However, absent jurisdictional error, there is no basis upon which this Court can remit the matter simply because of the existence of compassionate grounds, even if they were established. This was explained to the applicants during the hearing.
In relation to the suggestion that the Tribunal had not acted in the best interest of the first applicant, he made submissions to the effect that "best interest" meant that the Tribunal did not consider what he “said at the time”. The applicant made oral submissions to the Court to say that he provided genuine evidence. Specifically, he submitted that the “genuine documents” which he provided to “prove his genuineness” were not considered by the Tribunal.[2]
[2] Transcript of hearing 23 May 2024 at T14.21 to T14.45
At hearing the first applicant also submitted to the Court for the first time that the Tribunal had not considered the termination letter which he provided, the mental health of the applicants and any psychological hardship that might befall them if they were required to leave Australia. These matters are also addressed below.
Ground as alleged
If the Tribunal is satisfied that a ground for cancellation of a ‘regional sponsored employment visa’[3] exists under s 137Q of the Act, then the Tribunal must proceed to consider whether to exercise the discretion in s 137Q to cancel the visa.
[3]There is no basis to contend, if indeed the applicants do, that the Tribunal erred in finding that grounds for cancellation of the visa existed. Having so found, the Tribunal went on to exercise its discretion to cancel the visa.
The Tribunal may cancel the visa if it is satisfied that the applicant commenced the employment referred to in the relevant employer nomination (s 137Q(2)(a)(i)), the employment terminated within the required employment period of two years (s 137Q(2)(a)(ii)) and, if the applicant does not so satisfy the Tribunal, that he or she made a genuine effort to be engaged in that employment for two years (s 137Q(2)(b)).
The term ‘genuine effort’ is not defined in the Act, but has been construed to mean effort that is greater than ‘superficial or token’: see Kaur v Minister for Immigration and Border Protection [2017] FCCA 2877 at [21] per Judge Lucev and Zhang v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 656 at [55] to [56] per Judge Ladhams.
In all the circumstances of the present case, it was open to the Tribunal on the material before it to find that the applicant had failed to make a genuine effort to commence or continue his employment with the sponsor, consequent upon the finding that it was the applicant himself who terminated the employment (CB 191 at [74]). That conclusion followed from the following factual findings of the Tribunal that, in relation to s 137Q(1)(a) of the Act:
(a)the applicant had not commenced employment, because he had only attended a one-day induction course at Wetherill Park, NSW which did not constitute commencing employment with his employer at Mossman, Queensland (CB 190 at [64]); and
(b)that even if it were wrong, and the applicant had commenced employment, the employment had terminated within the required 2-year employment period.
In making its findings about s 137Q(2)(a), the Tribunal’s findings were based on:
(a)the applicant having been found not to have been truthful to the Department about his employment with the sponsor (CB 191 to 192 at [76] to [77]), and specifically when it had ceased (CB 191 at [75]);
(b)the applicant’s evidence, in addition to being internally inconsistent, was contradicted by the more reliable evidence of the applicant’s sponsor (CB 192 at [78]);
(c)the suggestion that the applicant had pursued alternative regional employment options with the sponsor could not be accepted (CB 192 at [79]); and
(d)the absence of any evidence of the applicant contacting the sponsor for further employment opportunities (CB 192 at [80]).
The applicant was required by reg 2.50AA of the Regulations to commence employment within six months of his having entered Australia holding his visa, for the purposes of s 137Q(1) of the Act. The Tribunal found that the applicant had not commenced the employment referred to in the relevant employer nomination within six months (CB 190 at [65]). The Tribunal also considered the criteria in s 137Q(2) of the Act in the alternative and found the requirement in s 137Q(2)(a) was satisfied (CB 190 at [70]).
The Tribunal balanced the factors that weighed in favour and against cancellation of the visa. Overall, I am satisfied that it was open to the Tribunal to find that those factors weighed in favour of the exercise of the discretion to cancel the visa (CB 195 at [108]): see Kaur v Minister for Immigration and Border Protection [2017] FCCA 2877 per Judge Lucev, Singh v Minister for Immigration and Border Protection (2018) 330 FLR 318 per Judge Nicholls and Su v Minister for Immigration and Border Protection [2016] FCCA 83 per Judge Jarrett.
In the present case, I am satisfied that the basis upon which the Tribunal exercised its discretion to cancel the visa was open on the material before it.
By his written submissions, the first respondent submitted that it was also open to the Tribunal to make an adverse credibility finding, flowing from the inconsistent evidence provided by the applicant and his sponsor about the cessation of the applicant’s employment. The Tribunal did not accept the applicant’s evidence of attempts to secure further employment with the sponsor. I also agree that these findings were open to the Tribunal.
Denial of procedural fairness and the December Affidavit
So far as the ground of review (and December Affidavit) alleges a denial of procedural fairness, the material before the Court demonstrates that the Tribunal complied with the requirements in Part 5, Division 5 of the Act.
The applicants appeared before the Tribunal to give evidence and present arguments relating to the matters in issue at two hearings. The applicants were on notice of the issues before the Tribunal by reason of the delegate’s decision. The Tribunal also observed the procedure in
s 359AA of the Act at [49] by putting to the first applicant information that was available on file in relation to a phone call from the Department to him on 22 August 2017, in respect of which he responded and gave evidence (CB 187 to 188 at [50] to [52]). The applicants appointed an authorised recipient, and all correspondence was duly sent to the recipient as required by the Act.
By the December Affidavit the applicants also appear to allege that the outcome of the Tribunal’s review was not fair. So much was also apparent from the substance of various submissions made to the Court during the hearing.
It is well established that what is required of the Tribunal is a fair process, and not a fair outcome: SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The statutory framework within which the decision-maker exercises statutory power is critical when it comes to consideration of what procedural fairness will require in a particular case, and will be tied to the facts of that case: see SZBEL (supra) at [26]. While it is understandable that the applicants are unhappy with the cancellation of the first applicant's visa, that is not indicative of a jurisdictional error constituted by a denial of procedural fairness.
The Tribunal’s ‘no jurisdiction’ decision in respect of the second, third and fourth applicants is not challenged, but also appears correct.
There is no substance in the ground of review as raised.
Matters raised at hearing
Termination letter
In respect of the submission made at hearing that the Tribunal had failed to consider the termination letter, a copy of that termination letter can be found at CB 30. The termination letter was clearly before both the delegate and the Tribunal and references to that can be found at CB 103 and CB 184 at [20] (being the third bullet point from the bottom of CB 184).
At [11] of its decision (CB 182) the Tribunal also found:
On 4 October 2016, the applicant submitted that his nominating employer contacted him to terminate his employment, due to the business downturn and therefore the Fleet Manager position was no longer required at the Mossman location. The applicant submitted that despite the termination, he made genuine efforts to remain engaged in that employment by enquiring whether his employer had any other vacancies for other positions at the business’ different regional sites. The applicant submitted that his employer advised him they only had a truck driving or warehouse position located in their Sydney office, however he declined these positions as they were not regionally based.
From the above, it is clear the Tribunal was both aware of the existence of the termination letter, and accepted the date upon which it was issued. Otherwise, I can see no relevance to the termination letter, in circumstances where the fact of the termination was accepted as having occurred. In any event, there is no basis to contend that the Tribunal failed to consider the termination letter.
Mental health
Lastly, during the hearing the first applicant suggested that the Tribunal had not considered the applicants’ respective mental health.
When asked to respond to the assertion made by the first applicant during his oral submissions, the solicitor for the first respondent appeared to be unfamiliar with the content of the Tribunal’s decision because she tacitly accepted the applicant’s statement (namely, that mental health was not considered by the Tribunal). Rather than taking the Court to the part of the Tribunal’s decision where it was addressed, the solicitor instead submitted that the Court should not believe the applicants had raised the issue before the Tribunal because the first applicant had made “a number of statements that are not true or backed by evidence”.[4]
[4] Transcript of hearing 23 May 2024 at T21.24 to T21.25
The Court sought to clarify this submission with the first respondent’s solicitor who reiterated that the first applicant was generally untruthful (based in part on the statement made about documents given to the Tribunal (see [31] to [32] above)) and, therefore, should not be believed when he made submissions from the Bar table about what had or hadn’t happened before the Tribunal. The Court adjourned to enable the solicitor for the first respondent to consider specific parts of the Tribunal’s decision, to speak with a supervisor and also take any necessary instructions. Following the adjournment, the solicitor withdrew the submissions in question. That withdrawal was appropriately made.
The difficulty for the applicants in relation to the allegation itself, is that it fails at a factual level.
At [93] to [94], the Tribunal said as follows:
In regard to the degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship) the Tribunal accepts that the applicant’s children have been born in Australia and the children would suffer hardship both emotional and psychological on return to India, especially as they do not speak the language and know nothing about India and its culture. Further, the Tribunal accepts that it will be difficult for the couple to find work as despite the applicant’s qualifications and experience as an assistant nurse he has only studied Diploma courses in Australia and it is hard to get a job. They do not have any properties there and they do not have the financial situation to buy a house in India.
The Tribunal weighs this factor against cancelling the visa.
While brief, the Tribunal expressly considered the very issue that the applicants say was not considered and, moreover, actually accepted that there would be emotional and psychological hardship to the children. Implicitly, the Tribunal also did not accept that this would extend to the first and second applicants. The Tribunal accepted that the considerations weighed against the cancellation of the visa.
As a result, I am not satisfied that the allegation made during the hearing in relation to the Tribunal’s consideration of the applicants’ mental health, gives rise to an error.
CONCLUSION
Overall, I am not satisfied that there is any error on the part of the Tribunal in relation to the exercise of its discretion that there were grounds for the cancellation of the visa, nor the subsequent exercise of the discretion to cancel the visa. Nor am I satisfied that the any other legal error has been established by the applicants in respect of procedural fairness or any other issue raised before the Court at hearing.
Absent a jurisdictional error, the decision is a privative clause decision and must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 21 August 2024
SCHEDULE OF PARTIES
SYG 3336 of 2019 Applicants
Fourth Applicant:
BHAVYABEN SANDIPKUMAR PRAJAPATI
‘Regional sponsored employment visa’ meant a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the Regulations for the purposes of the definition in
s 137Q(3). The visas prescribed by reg 2.50AA of the Regulations were at the time: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme); and Subclass 857 (Regional Sponsored Migration Scheme).
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