Rokolati v Minister for Immigration
[2006] FMCA 898
•31 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROKOLATI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 898 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a business visa – asserted breach of visa condition prohibiting a change of employer without departmental permission – whether MRT breached s.359A of the Migration Act 1958 (Cth) considered – MRT took into account financial records accompanying a fee waiver application – whether the MRT overlooked a relevant consideration considered – failure by the MRT to take into account the impact of the visa cancellation on the applicants’ permanent residence aspirations. |
| Migration Act 1958 (Cth), ss.116, 359A Migration Regulations |
| Craig v State of South Australia (1994) 184 CLR 163 Htun v Minister for Immigration (2001) 194 ALR 244 Minister for Immigration v Al Shamry (2001) 110 FCR 27 |
| First Applicant: | PAULA ROKOLATI |
| Second Applicant: | ALUMITA ADITAUYAVI ROKOLATI |
| Third Applicant: | SEINI KACESI QOLATABUA |
| Fourth Applicant: | PAULA KEITH ROKOLATI |
| Fifth Applicant: | TEVITA TORA ROKOLATI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1548 of 2005 |
| Judgment of: | Driver FM |
| Hearing dates: | 22 June, 10 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal made on 12 March 2004.
A writ of mandamus shall issue, requiring the Migration Review Tribunal to redetermine the review application before it according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1548 of 2005
| PAULA ROKOLATI |
First Applicant
ALUMITA ADITAUYAVI
Second Applicant
SEINE KACESI QOLATABUA
Third Applicant
PAULA KEITH ROKOLATI
Fourth Applicant
TEVITA TORA ROKOLATI
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
Mr Paula Rokolati is an honest man. That is his misfortune. His honesty led him to report to the Minister’s Department the fact that he had become unemployed and to seek the Department’s approval to find a new employer. He was rewarded for his honesty by having his visa cancelled. That cancellation, which was affirmed by the Migration Review Tribunal (“the MRT”) has led to this present proceeding.
I adopt as background information the following material taken from written submissions filed on behalf of the applicants on 9 June 2006.
On 2 March 2001 Mr Rokolati was granted a sub class 457 visa (court book, page 1). This is a four year business visa to which was attached a condition (condition 8107) that he must not change his employer without written permission of the Secretary of the Department of Immigration. His employer and sponsor was Profab Industries Pty Ltd ACN 001 825 163. His spouse and child were secondary applicants to that application, and they arrived in Australia on 25 February 2002 (court book, page 9.7).
Mr Rokolati worked at Profab Industries as a boilermaker from 13 December 2000[1]. His employment was terminated because of lack of work on 1 March 2002. This was less than a week after his family arrived in Australia.
[1] He was, apparently, permitted to take up this position at the date of his application.
Mr Rokolati wrote to the Department on 12 March 2002 advising of his position (court book, page 4). He later said, in a letter in response to the notice of intention to consider cancellation of his visa because of failure to comply with condition 8107 (court book, pages 5-6) that the officer whom he saw at the Department’s offices at Parramatta took this letter and told him that he could find new work, and that he thought that he was complying with the conditions of his visa (court book, page 8.8).
This representation did not avail him. The visa was cancelled under s.116(1)(b) Migration Act 1958 (Cth) (“the Migration Act”) on 19 November 2003 (court book, pages 11-15). That section relevantly states:
116(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)any circumstances which permitted the grant of the visa no longer exist; or
(b)its holder has not complied with a condition of the visa; or …
The power to cancel under s.116(1) is discretionary. Sub sections 116(2) and 116(3) are not relevant to the cancellation of this applicant’s visa.
The visas of the spouse and son were cancelled under s.140, as a consequence of the cancellation of Mr Rokolati’s visa (court book, pages 18-19). An appeal to the second respondent (the RRT) was lodged on 25 November 2003 (court book, pages 20-26). Mr Rokolati sought to have the fees for lodgement of this application waived (see annexure to Mr Rokolati’s affidavit, folios 34-43). To this application he attached voluminous financial documents. This application appears to have been successful (annexure to Mr Rokolati’s affidavit, folios 56).
On 31 December 2003 the RRT wrote a s.359A letter (court book, pages 28-29) to Mr Rokolati inviting him to comment on information that he had ceased work with Profab Industries Pty Ltd. This was said to be relevant because his sub class 457 visa was cancelled because he, “…had not complied with condition 8107 (not change work)”. Mr Rokolati replied at length (court book, pages 30-32).
A hearing was held by the MRT on 20 February 2004 (transcript annexed to the affidavit of Nigel Dobbie, sworn on 30 March 2006). At that hearing Mr Rokolati gave evidence, that amongst other things:
a)he was told, when he attended the Department’s offices at Parramatta, that he could look for another job (transcript p. 3.4);
b)he has worked on a casual basis for five companies since then (transcript p. 3.7);
c)he did not realise that he would have to contact Immigration again (transcript p. 5.7).
Mrs Rokolati gave evidence of the hardships the family would suffer if the MRT did not exercise its discretion in their favour:
a)their children’s future would suffer (transcript p. 9.4);
b)they have sold their house in Fiji to get the money to fly to Australia (transcript 11.4);
c)they have lost their jobs in Fiji (transcript 9.5);
d)they would not be able to find new jobs (9.5);
e)the family wished to apply for permanent residence, and this was upset because of circumstances (transcript 7.8; cf CB 31-2).
The MRT decision
The MRT found on the basis of both the oral evidence and documents that Mr Rokolati had supplied with his fee waiver application that he had breached condition 8107 (court book, page 52). It turned to the issue of discretion.
In that respect the MRT reiterated that Mr Rokolati had breached a condition of his visa. It also recorded that (at court book, page 53):
The review applicant indicated that he and his family would suffer hardship if he had to leave Australia; that his family are well settled here; and have nothing to return to in Fiji. There are four children in the family and they have been doing well in school. However, the applicant’s were on visas that permitted temporary stays until March 2005 only, on the basis of the approved sponsorship by Profab Industries Pty Ltd.
Although he is presently unemployed, the review applicant does not presently have an approved business sponsor, and has not had an approved business sponsor since March 2002. It does not appear that the review applicant has sought to be employed by an approved sponsor since he ceased employment with Profab Industries Pty Ltd.
The application
These proceedings commenced with a judicial review application filed on 15 June 2005. The application has been amended several times since then. The applicants ultimately relied upon a further amended application filed on 7 July 2006. That application raises five grounds but only two were pressed. Those grounds are:
1.The MRT failed to comply with s.359A of the Act
Particulars
i)The MRT failed to notify the First Applicant that the reason or part of the reason for affirming the decision under review was that he had changed employer in Australia without permission in writing of the Secretary of DIMIA.
ii)The MRT failed to notify the First Applicant that documents that he provided in relation to an application for a waiver of the application for review fee would be a reason, or part of the reason, for affirming the decision under review, those documents being used to show that the First Applicant had not complied with Condition 8107 and being considered adversely in relation to the MRT’s decision:
a)An ATO notice of assessment for 2002-2003, showing the First Applicant’s taxable income as $43,153. (CB52)
b)Bank statements for 2003 that showed a salary from Margle Pty Ltd, Office Overload and Waycon Management was deposited on various dates. (CB52)
c)A payroll advice for Waycon Management Pty Ltd dated 3 October 2003 and 16 November 2003. (CB52)
2. The MRT failed to determine and or consider material claims made by the First Applicant, which were relevant to the exercise of discretion.
Particulars
i)That after he notified DIMIA in writing that he had ceased to be employed by his sponsor, an officer of DIMIA told him that it was “OK for [him] to go and find work” (as opposed to finding a sponsor employer).
ii)That the cancellation of the visa would prevent him and his family from applying for permanent residence in Australia.
iii)That his talents and skills benefited and or would continue to benefit Australia.
iv)That as Australia had benefited from his talents and skills, his wife and children should also benefit from it.
The evidence
In addition to the court book filed on 19 July 2005 I have the following evidence before me:
a)the affidavit of Nigel James Dobbie filed on 4 April 2006 to which is annexed a transcript of the hearing conducted by the MRT;
b)the affidavit of Paula Rokolati filed on 19 May 2006 to which are annexed documents said to be relevant to the waiver application made by Mr Rokolati;
c)a further affidavit by Mr Rokolati filed on 21 June 2006 deposing as to matters relevant to the issue of delay in bringing the present proceeding (which issue is no longer pressed by the Minister); and
d)the affidavit of Kate McNamara filed on 17 May 2006 deposing as to document omitted from the court book and annexing those documents.
Submissions
Both the applicants and the Minister made written and oral submissions through their counsel.
The applicants assert that the s.359A letter sent to them was inadequate. The letter only invited comment on the information that Mr Rokolati had ceased work with his sponsor, not that he was working for other employers without the permission from the Secretary of the Minister’s Department. Further, the applicants assert that the MRT took into account information that Mr Rokolati had supplied in connection with his fee waiver application in order to find that he had breached condition 8107. The applicants assert that this was not information provided by Mr Rokolati for the purposes of his review application and hence the MRT was required to invite comment on that information pursuant to s.359A.
Secondly, the applicants assert that the exercise of power by the MRT miscarried in considering the hardship that Mr Rokolati and his family would suffer if the visa cancellation were affirmed. They assert that the MRT failed to consider an element or integer of their claims, namely that they were seeking to migrate to Australia permanently, and that the cancellation of the visa would prevent Mr Rokolati and his family from applying for permanent residence.
The Minister disputes that the MRT was obliged by s.359A to notify Mr Rokolati that a reason or part of the reason for its decision might be that he had worked for employers who were not approved by the Department or were not approved sponsors. First, the Minister asserts that at least part of the reason for decision was that there was no evidence before the MRT that the subsequent employers of Mr Rokolati sponsored him[2]. The MRT also found that Mr Rokolati was not given permission in writing by the Minister’s Department to change employers. The Minister submits that the MRT decision rested upon the fact that Mr Rokoloati did not have an approved business sponsor and had not had an approved business sponsor since March 2002[3]. The Minister relies upon VAF v Minister for Immigration (2004) 206 ALR 471 at [24], followed in SZEEU v Minister for Immigration [2006] FCAFC 2 in relation to the distinction between information and a lack of evidence on a particular point.
[2] see paragraph 35 of the MRT decision at court book, pages 52-53
[3] see paragraph 38 of the MRT decision at court book, page 53
Secondly, the Minister submits that the “information” in issue was provided by the applicant with his application for review to the MRT and hence was information given to the MRT by the applicant “in chief” for the purposes of the review application. The Minister submits that, at least in the circumstances of this matter, no material distinction can be drawn between information provided in support of a fee waiver application and information provided in support of a review application. The Minister submits that the relevant information was all given at the same time and physically together and for the purpose of the review application. The Minister notes that the validity of the review application depended relevantly upon the fee waiver application being made within the prescribed period and being granted[4] or the fee being paid.
[4] see Braganza v Minister for Immigration (2001) 109 FCR 364 at [51]
Thirdly, the Minister submits that, even if the relevant information was not provided by the applicant for the purposes of his review application, it merely provided the starting point from which the applicant was questioned by the presiding member about his employment history at the hearing conducted by the MRT. Mr Johnson, for the Minister, took me to various portions of the transcript in which Mr Rokolati was questioned by the presiding member about his employment history. The Minister submits that it was the information provided by Mr Rokolati at the hearing which provided the basis for the findings made by the MRT that Mr Rokolati had changed employers without the permission of the Secretary and had thereby breached the condition on his visa.
The Minister also denies any failure to consider an element or integer of the applicants’ claim in relation to the hardship issue. Mr Johnson’s written submissions on this issue are as follows:
All of the authorities cited in paragraph 16 of the applicant’s submissions refer to jurisdictional error occurring where the Refugee Review Tribunal fails to consider a “claim’. As Allsop J makes clear in Htun v MIMA (2001) 194 ALR 244 at [42] (Spender J agreeing at [1]), failure to consider a claim is not established merely by “a failure to attend to evidence, even probative evidence, and by such route to commit a factual error”. Nor is such an error established by the rejection of a claim, or the fact that it does not satisfy the Tribunal.
The applicant submits (in paragraph 15) that the Tribunal did not consider the applicant’s claim in regard to hardship because “that case included the fact that they wished to use the 457 visa as a springboard for permanent residency, as they are legally entitled to”.
The same paragraph, however, complains about a statement by the Tribunal in its reasons that “the section 457 visa only permitted the family to remain in Australia until March 2005”. Plainly, any “springboard” aspirations of the applicant were not seen by the Tribunal as grounding the exercise of discretion in his favour. In other words, any “springboard” argument was in fact rejected. No “claim”, however, is identified with reference to the evidence.
Moreover, it is plain from ([37] and [39] at CB53) that the Tribunal appreciated that the applicant claimed that he and his family would suffer hardship if they returned to Fiji, that they had nothing to return to and were well-settled here and (at least impliedly) that they wished to remain – but it is equally clear from those paragraphs that the Tribunal saw those factors as outweighed by the considerations favouring cancellation of the visa.
In any event, the integer of hardship was considered and if (as is not conceded) the Tribunal made any error in identifying that hardship, that was no more than an error of non-jurisdictional error of fact. The Tribunal was not jurisdictionally obliged to consider as a separate integer in the exercise of its discretion – or to expressly deal with – any wish of the applicant for his visa to become a “springboard” for another.
The legislation
Section 359A of the Migration provides:
(1) Subject to subsection (2), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies–by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non‑disclosable information.
Regulation 4.13 of the Migration Regulations (“the Migration Regulations”) provides:
(1)Subject to this regulation, the fee for an application for review of a decision by the Tribunal is $1,400.
(2)No fee is payable on the following:
(a)an application for review by the Tribunal of a primary decision of a kind referred to in subsection 338 (4) of the Act;
(b)an application, made by a non‑citizen who is in immigration detention, for review by the Tribunal of a decision to which paragraph 4.02 (4) (f) applies.
(3)If a person combines 2 or more applications for review by the Tribunal in accordance with regulation 4.12, an application fee is payable in respect of only 1 of those applications.
(4)The Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, may determine that the fee on an application for review by the Tribunal of a decision should not be paid if he or she is satisfied that payment of the fee has caused, or is likely to cause, severe financial hardship to the review applicant.
Reasoning
The manner in which these applicants were treated by the Minister’s Department is disappointing. It would have been easy for Mr Rokolati to have changed employers and to have not disclosed that fact to the Department. He appears to have been penalised for his honesty and openness. I am troubled by the fact that the delegate cancelled Mr Rokolati’s visa when there was no evidence that he had changed employers. There was only evidence that he had ceased to be employed by his approved sponsor. I am also troubled by the fact that the visa was cancelled when Mr Rokolati had sought approval to obtain a new sponsoring employer and that request had apparently not been dealt with. Those considerations are, however, beyond the scope of this proceeding and the applicants have, through their counsel, expressly disavowed reliance upon grounds related to those circumstances. The issues to be resolved in this case are restricted to the issue of compliance with s.359A of the Migration Act and the question of whether an element or integer of the applicants’ claims was overlooked by the MRT.
The section 359A issue
I accept that a fee waiver application is a separate application from a review application for the purposes of the Migration Act and Regulations. There is a separate form for a fee waiver application and the form completed by Mr Rokolati is in evidence before me. The application serves a particular purpose pursuant to the Regulations. I also accept that a fee waiver application is related to a review application in that, unless the prescribed fee for the review application is paid, or a waiver is obtained, the review application is invalid. I am prepared to accept, from the affidavit of Ms McNamara, that the fee waiver application and the review application were made at the same time. Among other things, the applications were received by the MRT on the same day. I draw no particular conclusions from the affidavits of Mr Rokolati and Ms McNamara as to the precise order in which documents were presented. Rather, conclusions can be drawn from the nature of the relevant documents themselves as to what they related to. At paragraph 29 of its reasons (court book, page 52) the MRT dealt with the documents it regarded as most significant in the following manner:
The review applicant provided documents to the Tribunal that showed he had been employed after 1 March 2002:
· An ATO notice of assessment for 2002-03 that showed his taxable income was $41,153.
· Bank statements for 2003 that showed a salary from Margle Pty Ltd, Office Overload and Waycon Management was deposited on various dates.
· A payroll advice for Waycon Management Pty Ltd dated 3 October 2003 and 16 November 2003.
These were all documents evidencing Mr Rokolati’s income. They were plainly relevant to his application for a fee waiver and I find that they were provided in support of that application.
It is clear from the reasons for the decision that the MRT regarded these documents as significant in establishing that Mr Rokolati had worked for employers other than his approved sponsor. Mr Rokolati is an honest man. He may also be somewhat naïve. I do not take him, however, as a complete fool. It is, in my view, inconceivable that he would provide those documents in support of his review application when, not only was that information unavailable to the delegate, but was also clearly adverse information as it tended to support a conclusion that he had breached the condition attaching to his visa. I find that the three documents referred to by the MRT were provided by Mr Rokolati in support of his fee waiver application and not his review application.
The fact that the validity of a review application may depend upon the granting of a fee waiver application establishes that the two are related. It does not establish that they are the same thing. Section 359A is a statutory expression of an obligation of disclosure. Paragraph 4(b) is an exception to the general obligation of disclosure and should be construed narrowly[5]. The “application” referred to in the paragraph is the review application and no other. There is a good policy reason for that limitation. In seeking a fee waiver applicants may have to make disclosures that are contrary to their interests on the review application. That is precisely what happened here. If a review tribunal wishes to use such adverse information in order to affirm a decision under review, the obligation of disclosure in s.359A(1) must be met.
[5] Minister for Immigration v Al Shamry (2001) 110 FCR 27 at [20] per Ryan and Conti JJ
The question of whether particular information is used to affirm the decision under review is to be answered by reference to the reasons for the MRT decision, not the transcript of the MRT hearing. The information contained in the documents referred to in paragraph 29 of the MRT reasons was information which in part supported the decision by the MRT to affirm the decision of the delegate. Critically, that information established that the applicant had been working for employers other than his approved sponsor. Mr Rokolati confirmed that at the hearing conducted by the MRT and, with commendable frankness, provided additional information. The information provided by Mr Rokolati at the hearing also supported the decision by the MRT to affirm the delegate’s decision, but not exclusively so. The information in the documents was also material to the outcome. If the presiding member did not think they were material he would not have referred to them as showing that Mr Rokolati had been employed after 1 March 2002, when it was known that he had ceased employment with his approved sponsor.
The invitation to comment issued by the MRT on 31 December 2003 (court book, pages 28-29) was inadequate in that it made no reference to the important information in the documents ultimately relied upon by the MRT. There was no compliance with the obligation on the MRT to disclose the information in those documents. The failure on the part of the MRT to comply with its obligation under s.359A(1) is a jurisdictional error and the applicants are entitled to relief in the form of constitutional writs.
Although it is not strictly necessary to do so, I also find that the MRT erred in considering the reasons for not cancelling the visa. It is clear from the transcript[6] that both Mr Rokolati and his wife were concerned that the cancellation of their visas would prevent them from applying for permanent residency in Australia. At paragraph 37 of his reasons, the presiding member considered the issue of hardship in general terms but said nothing on that issue. I reject the Minister’s contention that the presiding member dealt with that issue by noting that the applicants’ visas only entitled them to remain in Australia until March 2005. That deadline was a year off at the time of the MRT decision. There was plenty of time available for the applicants to seek a change of status.
[6] see pages 9 and 10 of the transcript
I accept that there is a distinction between elements and integers of a claim and particular items of evidence. This was, in my view, more an item of evidence. It was an issue of fundamental importance to the applicants because the achievement of permanent residence was their ultimate objective. The cancellation of their visas frustrated the achievement of that objective. The issue was raised by Mr and Mrs Rokolati as an appeal to the presiding member not to affirm the cancellation. In substance, the applicants were asserting that the reasons for not cancelling outweighed the reasons for cancelling. They could have said a lot more. They could have referred to the honesty and integrity of Mr Rokolati in drawing his circumstances to the attention of the Minister’s Department and in being frank and open with the MRT. They could have drawn attention to the fact that Mr Rokolati had sought the approval of the Minister’s Department to obtain a new employer and that request had apparently not been dealt with. Those were all matters within the knowledge of the presiding member or within his knowledge should he have wished to make some further enquiry. He could at least have dealt with the serious concern raised by the applicants about their inability to apply for permanent residence. He did not do so and in doing so he overlooked a relevant consideration. That is also a jurisdictional error[7].
[7] Htun v Minister for Immigration (2001) 194 ALR 244; Craig v State of South Australia (1994) 184 CLR 163
I will order that the applicants receive relief in the form of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 31 August 2006
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