Puwar v Minister for Immigration
[2009] FMCA 1062
•12 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PUWAR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1062 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a business visa – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.116, 359A, 359B, 359C, 360 Migration Regulations 1994 (Cth) |
| Durzi v Minister for Immigration [2006] FCA 1767 Minister for Immigration v SGLB (2004) 207 ALR 12 Minister for Immigration v SZIAI [2009] HCA 39 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 NAYU v Minister for Immigration [2004] FCA 528 SGBB v Minister for Immigration (2003) 199 ALR 364 |
| First Applicant: | SURYA BAHADUR PUWAR |
| Second Applicant: | DURGA SHRESTHA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1268 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 28 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Newman Newman & Associates |
| Counsel for the Respondents: | Ms S Sirtes |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1268 of 2009
| SURYA BAHADUR PUWAR |
First Applicant
DURGA SHRESTHA
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was made on 29 April 2009. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicants’ Subclass 457 Business (Long Stay) visas.
The following statement of background facts is derived from the Minister’s initial written submissions filed on 3 August 2009 and the applicants’ outline of submissions filed on 5 August 2009.
On 9 October 2007, the applicants were granted Subclass 457 Business (Long Stay) visas. The first applicant’s visa was granted on the basis that he met the then applicable criteria set out at paragraphs 457.223(4)(f) and 457.223(4)(i) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”) as he was being paid at a level specified in the nomination and was sponsored by an approved sponsor: court book (“CB”) 7-16.
Delegate’s decision
On 8 July 2008, the delegate was advised by the first applicant’s sponsor that the first applicant had ceased employment with them on 4 July 2008: CB 17-20.
On 15 September 2008, the first applicant was sent a ‘notice of intention to consider cancellation’ on the basis that he no longer satisfied paragraphs 457.223(4)(f) and 457.223(4)(i). That letter requested information as to why the visa should not be cancelled pursuant to s.116(1)(a): CB 21-23. The delegate received no reply to the letter.
On 17 February 2009, the delegate cancelled the applicants’ visas pursuant to s.116(1)(a): CB 24-30. As the first applicant was no longer employed with the visa sponsor, he no longer satisfied 457.233(4)(f) in Schedule 2 of the Migration Regulations. Further, as the first applicant’s visa sponsor had been withdrawn, he no longer satisfied paragraph 457.223(4)(i). Accordingly the delegate cancelled the applicants’ visas on the basis that these circumstances which permitted the grant of the visa no longer existed: CB 28.
Application for review and Tribunal’s findings
On 9 March 2009, the applicants lodged an application with the Tribunal for review of the delegate’s decision: CB 31-37.
On 7 April 2009, the Tribunal sent the applicants a letter pursuant to s.359A of the Migration Act 1958 (Cth) (“the Migration Act”): CB 45-47. The invitation to comment:
a)gave particulars of the information and outlined why it was relevant to the review: s.359A(1)(b); and
b)specified the way in which the comments were to be given (in writing): s.359B(1)(b), and that the comments were to be provided within the prescribed period: clause 4.17(3).
The letter provided information as to the basis on which the delegate had cancelled the applicants’ visas and invited comment on whether the ground for cancellation existed, why the visa should not be cancelled, the degree of hardship that may be caused if the visa was cancelled, the extent of the applicants’ non compliance with any of the conditions to which the visa was subject and the circumstances in which the cancellation arose. The s.359A letter advised the applicants that these were possible outcomes should they fail to respond to the letter within the prescribed time.
The Tribunal received no response to its letter and proceeded to make a decision on the papers: CB 52[15]. The Tribunal proceeded on the basis that it was entitled to proceed as it did and to make its decision without taking any further action to obtain the additional information in accordance with s.359C(1). The applicants also lost their right to appear at a hearing: ss.360(2)(c) and 360(3).
The Tribunal was satisfied that the circumstances which permitted the grant of the visas no longer existed, as the first applicant was no longer employed by his nominated sponsor and paid a salary specified in the nomination as required by paragraph 457.223(4)(f). Accordingly, the Tribunal was satisfied that the ground for cancellation in s.116(1)(a) was met and went on to consider whether to exercise its discretion to cancel the applicants’ visas. The Tribunal noted that as the applicants had failed to respond to the Tribunal’s request to provide information the Tribunal was unable to consider the application of discretion in this case: CB 53[18]-[21].
Accordingly, the Tribunal concluded that the applicants visas should be cancelled: CB 54[22].
The application
The applicants rely upon a show cause application filed on 26 May 2009. That application asserts that the Tribunal found that at the time when the first applicant’s subclass 457 visa was cancelled a condition for its grant no longer existed and there was no question of hardship allowing for the exercise of discretion. This is said to be factually incorrect in that the first applicant had lost his job, he and his wife were impecunious and their dependant children were left without support.
At a directions hearing on 13 August 2009 I ordered that the requirement for a show cause hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) be dispensed with and made other procedural orders. I discussed with the parties’ representatives at that time what issues would need to be addressed at the final hearing of this matter. It was agreed that the matters that might be addressed included whether in fact the circumstances which permitted the grant of the first applicant’s visa no longer existed (in particular that the first applicant had ceased his employment with his sponsoring business, the Copperpot Indian Restaurant). Further, there was an issue of whether there might have been circumstances bearing on the exercise of discretion by the Tribunal which had not been taken into account. In particular, there was a suggestion that if the first applicant’s employment had terminated, that might have been due to illness.
The evidence
I received an affidavit from the applicants’ solicitor which annexed a medical certificate dated 29 April 2008 relating to the first applicant’s fitness to work for the period between 28 April 2008 and 4 May 2008 inclusive. I also received as evidence the court book filed on 26 June 2009.
Submissions
The applicants submit that the information provided purportedly on behalf of the first applicant’s employer was equivocal on the question of whether the first applicant had ceased employment. The applicants also submit that the letter purportedly sent on behalf of the Copperpot Restaurant was of doubtful provenance. The applicants submit that given the doubtful circumstances presented to the Tribunal, the Tribunal should have undertaken further enquiries and that it had simply adopted the findings of the Minister’s delegate without applying any independent reasoning. The solicitor for the applicants also made submissions on the question of the health of the first applicant and the impact that might have had on the exercise of discretion by the Tribunal.
The Minister submits that the medical report annexed to the affidavit of the applicants’ solicitor was never received by the Department and so could not have been taken into account and that it is, in any event, irrelevant as it relates to a time period well before the apparent resignation of the first applicant from his employment. The Minister also submits:
Despite not having been pleaded, the general tenor of the applicant’s written submissions dated 5 August 2009 suggests that there is a jurisdictional error manifest from the delegate having acted on the withdrawal of sponsorship at CB 17 without investigation.
However, this allegation is baseless given that the NOICC specifically endeavoured to seek information from the applicants regarding the alleged withdrawal of sponsorship. In express terms, the delegate indicates “there may be grounds for cancellation of your visa” (emphasis added), sets out the letter from the employer and asks the applicants to comment on why they think the ground of cancellation does or does not exist. If the applicant wished to indicate that the letter from the employer was not genuine, that was the time to do so. The applicants were entirely passive in the cancellation and review process other than the filing of the review application itself. At no time were any allegations made by them of the kind now made by their written submissions at [4] and [5].
The same must be said of the suggestion in (the second and final) paragraph [6] of the submissions in relation to the allegation that the Tribunal merely adopted the delegate’s findings. That is not so. However given that there was no reply to the NOICC, and then nothing other than a review application ever given to the Tribunal, it is hardly surprising that there is a degree of parity between the decisions based, as there were by reason of the applicant’s silence, on the same limited information.
At paragraph [13] of the first respondent’s primary submissions in this matter, reference was made to Durzi v MIMA [2006] FMCA 240 at [49] per Lander J.[1] In addition, the first respondent notes that in refusing special leave to appeal from the judgment of Lander J, their Honours Hayne and Crennan JJ found the following[2]:
The applicant would seek to argue in this Court that because the Tribunal had misapplied the Departmental Procedures Advice Manual it committed jurisdictional error. There is no reason to doubt the conclusion reached in both the Federal Magistrates Court and the Federal Court that the Tribunal's approach to the issues before it was consistent with the Procedures Advice Manual. No question about the significance of departure from such a document would fall for consideration if special leave were to be granted in this matter.
The first respondent respectfully submits that the ground of review does not demonstrate jurisdictional error and ought be dismissed, and the grounds sought to be agitated by the applicant’s written submissions should also be rejected for the reasons set out above.
[1] an appeal from Durzi v MIMA [2006] FMCA 240 per Driver FM
[2] Lawrence Durzi v Minister For Immigration and Citizenship & Anor [2008] HCASL 354 at [3]
Consideration
The court book discloses that on 7 July 2008 a person purportedly representing the Copperpot Indian Restaurant wrote to the Minister’s Department to advise of the resignation of the first applicant from his employment and the consequent withdrawal of the employer nomination: CB 17. Annexed to the letter is what purports to be a letter from the first applicant to the author of the letter from the Copperpot Indian Restaurant informing him of the first applicant’s wish to resign from his employment. Despite suggestions by the applicants’ solicitor that the letter from the Copperpot Indian Restaurant was of doubtful provenance and that the letter of resignation was vague, there is no evidence that the letters were not what they purported to be, namely notification of the cessation of employment of the first applicant.
On its face, the correspondence provided a proper basis for the Minister’s Department to put in train the process that led ultimately to the cancellation of the visa. The casenote reproduced at CB 19 provides evidence that the Department wished to check whether the first applicant had in fact ceased employment. On page 20 of the court book is what appears to be an e-mail from the author of the letter from the Copperpot Restaurant simply confirming the information already provided. There is, in my view, no doubt that that information supported the issuing of the Notice of Intention to Consider Cancellation under s.116 of the Migration Act which was dated 15 September 2008: CB 21-23. The applicants did not respond to that letter and there was and is no explanation for that non response. The cancellation under s.116 of the Migration Act and notification followed inevitably.
The applicants applied for review of the delegate’s decision to the Tribunal but provided no information whatsoever with that application to cast any doubt on the appropriateness of the visa cancellation.
On 7 April 2009 the Tribunal invited comment from the first applicant on information relevantly bearing upon the issue before the Tribunal: CB 45-47. The letter included a warning of the consequences of not responding to the invitation. No response was received. In its decision, the Tribunal referred to those circumstances in the following terms (CB 52-53):
The Tribunal wrote to the visa applicant on 7 April 2009 noting the grounds on which his visa had been cancelled by the delegate under section 116(1)(a) of the Migration Act due to the fact that a circumstance that permitted the grant of the visa no longer existed. The Tribunal noted that a cancellation of a visa under Section 116(1)(a) is a two step process and requires that the Tribunal at review stage is required to determine whether the grounds for cancellation exist and if that is answered in the affirmative the Tribunal then must go onto consider whether after consideration of all relevant circumstances it should exercise its discretion to set the visa cancellation aside. To this end the Tribunal invited the applicant to provide information addressing all of the relevant considerations as to why the visa should not remain cancelled.
A response to this letter was due on 27 April 2009 and as no response has been forthcoming within the requisite time period the Tribunal is able to proceed to decision.
The Tribunal might usefully have explained in its reasons not only that it was able to proceed to a decision without further enquiry but why it exercised that discretion. However, it is tolerably clear from the Tribunal decision that the Tribunal proceeded without further enquiry because the facts appeared clear and it was apparent that no further information would be forthcoming from the applicants. It is unsurprising that the subsequent reasoning of the Tribunal closely followed that of the delegate because the Tribunal had no further information which might have supported different reasoning or a different conclusion.
No error can arise as a result of the Tribunal’s application of PAM 3 given that the:
PAM3 is simply a document which brings a number of relevant facts to the attention of the decision maker to which the decision maker may or may not have regard .... It has no legislative effect .... A decision maker is not bound to have regard to it or if a decision maker has regard to it, the decision maker commits no error.[3]
[3] Durzi v Minister for Immigration [2006] FCA 1767 at para 49.
Moreover, the applicants failed to respond to the s.359A letter sent by the Tribunal and neither did they respond to the letter sent by the delegate. Therefore, there was no information before the Tribunal as to whether the applicants would suffer any hardship as a result of the visa cancellation. It is well established that the Tribunal is not obliged to deal with claims which are not articulated and which do not clearly arise from the material before it.[4] It was for the applicants to make out their case before the Tribunal. The applicants forfeited an opportunity to do so by their failure to respond to the s.359A letter. If the Tribunal could not be satisfied on the basis of the material presented as to the applicants case it was under no obligation to investigate[5] or to make further enquiries.[6] I see no error in the Tribunal’s approach.
[4] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [68]; SGBB v Minister for Immigration (2003) 199 ALR 364.
[5] NAYU v Minister for Immigration [2004] FCA 528 at [18] – [21]
[6] Minister for Immigration v SGLB (2004) 207 ALR 12
The notification of cessation of employment sent by the Copperpot Indian Restaurant purportedly enclosed a “medical letter” as well as the first applicant’s resignation letter. No “medical letter” was included in the court book. I gave the parties the opportunity to file evidence in relation to that matter and the affidavit from the applicants’ solicitor resulted. There was a question in my mind whether, if the first applicant’s resignation had been occasioned by some medical disability, the Tribunal had overlooked a relevant consideration. The medical certificate annexed to the solicitor’s affidavit relates to a time period about two months before the resignation of the first applicant. The medical condition to which the certificate relates is not stated. There is no evidence that that document was in fact provided to the Minister’s Department (and the Minister denies that his Department received it), and I find that it was not available for either the Department or the Tribunal to consider.
Even if it had been available, it is hard to see how it could have borne on the exercise of discretion. Having regard to the reference to a “medical letter” in the notification from the Copperpot Restaurant, the Tribunal might have made some enquiry of the employer as to whether there was a medical reason for the resignation of the first applicant. However, the High Court has recently confirmed in Minister for Immigration v SZIAI[7] that there is no general duty on the Tribunal to enquire and I do not consider that the circumstances of this case support a conclusion that the failure to enquire points to a jurisdictional error. The applicants themselves had been afforded two opportunities to explain the circumstances of the resignation of the first applicant and they did not take up that opportunity. When the Department attempted to check the circumstances with the employer, the employer simply restated the information already provided. There was no basis upon which the Tribunal should have expected that any further enquiry would be productive.
[7] [2009] HCA 39
I conclude that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will order that the application be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 November 2009
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