Salaria v Minister for Immigration

[2018] FCCA 779

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALARIA & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 779

Catchwords:
MIGRATION – Review of decision of Administrative Appeals Tribunal – cancellation of skilled visa – breach of condition attaching to visa – exercise of discretion relating to cancellation considerations – no jurisdictional error established.

Legislation:

Migration Act 1958, ss.5, 116

Cases cited:
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZFNK v Minister for Immigration & Multicultural Affairs [2006] FCA1601
SZNXA v Minister for Immigration & Citizenship [2010] FCA775
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
El Ess v Minister for Immigration & Indigenous Affairs (2004) 142 FCR 43

First Applicant: RAJESH SALARIA

Second Applicant: VARSHA SALARIA

Third Applicant: ANVI SALARIA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 444 of 2016

Judgment of: Judge Brown

Hearing date: 23 March 2018

Date of Last Submission: 23 March 2018

Delivered at: Adelaide

Delivered on: 6 April 2018

REPRESENTATION

Counsel for the First Applicant: In person

Counsel for the First Respondent: Mr Evans

Solicitors for the Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Submitting appearance

ORDERS

1. The application filed 1 December 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 444 of 2016

RAJESH SALARIA

First Applicant

VARSHA SALARIA
Second Applicant

ANVI SALARIA
Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant in these proceedings, Rajesh Salaria, seeks an order, in the nature of certiorari, to quash a decision of the Administrative Appeals Tribunal “the AAT” made on 1 December 2016.

2. On this date, the AAT affirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection[1] “the Minister” to cancel the applicant’s sub-class 457(temporary work (skilled)) visa, pursuant to the provisions of section 116 of the Migration Act 1958 “the Act”.

   [1]  As the Minister for Homeland Affairs was previously known.

3. The applicant has appeared on his own behalf throughout these proceedings and prepared his own application.  The grounds of the application are un-particularised and do not obviously provide any grounds for judicial review. 

4. Rather, after quoting verbatim portions of the Tribunal’s decision, the applicant has made various assertions of fact which, by necessary implication, he contends are indicative of error on the part of the Tribunal itself.  In particular, in both his application and the affidavit filed in support of it, the applicant has deposed as follows:

   “I have stated to tribunal officer that I started my work around 2:30 pm and finished around 3 – 3:30 Pm.  It takes around 1 hour to go to work from house.  I live in Norwood and my work is in Murray bridge.  I reach home at night and go to sleep.  In morning I spend time with my daughter, get some groceries if needed, have food and go to work.  There is no time for me to work anywhere else.  Member did not understand this.  There is no scope that I can work anywhere else.

   I had informed member that I have not shred my taxi pin with anyone.  This is true as I did not.  I told member that many times my pin renewal papers were kept in taxi and it is highly possible that drivers would have seen it.  This pin is not my bank pin its just a taxi pin.  Member had a different point of view in this scenario and misunderstood my statement.  Member made an error in his decision.” (errors as in the original)

5. The relevance of these assertions arises because of the nature of the visa granted to the applicant.  His visa was subject to the condition that he worked, as a cook, for a nominated employer, who operates a restaurant in Murray Bridge.  The delegate cancelled this visa on the basis of evidence, available to the Minister, which indicated that the applicant had been employed as a taxi driver, after the grant of the visa in question and in contravention of the central condition attaching to it.

6. On judicial review, the court is prevented from conducting a re-hearing of the merits of the particular application before the tribunal concerned.  The court’s sole function is to ascertain whether there is any jurisdictional error arising from the determination in question.  If there is such an error, it will lead to the vitiation of the decision concerned, because the relevant jurisdiction, conferred upon the Tribunal concerned, has not been properly exercised and therefore the resulting decision can be characterised as being no decision at all.

7. This function is fundamentally different in nature to a merits re-hearing of the case concerned, in which the appellant body is entitled to substitute its own findings for those of the original decision maker or exercise any discretion conferred on that decision maker in a different way.

8. I appreciate that Mr Salaria is not legally qualified.  His application does not delineate any specific ground of jurisdictional error.  Notwithstanding, the obvious difficulties under which Mr Salaria is labouring, it is not for this court to search out for some error through a close scrutiny of the reasons in question and inadvertently turn a judicial review into a reconsideration of the merits of the case concerned.[2]

   [2]  See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ

9. As Madgwick J indicated in SZFNK v Minister for Immigration & Multicultural Affairs[3] said:

   “There is no obligation on a court, that I am aware of, independently to consider for itself whether a self-represented litigant might, despite the inadequacies of presentation of his or her position, have a case for the court’s intervention … on an ordinary hearing it is for an applicant, self-represented or not, to make out his or her case.”

   [3]  See SZFNK v Minister for Immigration & Multicultural Affairs [2006] FCA1601 at [4]

10. Notwithstanding these comments and the lack of any particularised claim for judicial review,[4] I will summarise the factual circumstances, which bring the case before the court and the relevant statutory provisions relating to it.

    [4]  See SZNXA v Minister for Immigration & Citizenship [2010] FCA775 at [23]

Background

1. The applicant is a citizen of India, who was born in 1984.  He is married to Varsha Salaria and has a child, Anvi, born in Australia on 20 June 2014.  They are both dependent on the applicant and live with him in Australia.  Their entitlement to visas to remain in Australia depends on the applicant holding a valid visa under the Act.

2. The applicant first arrived in Australia in July 2007, pursuant to a student visa.  He studied community welfare, cookery and hospitality in this country.  Whilst he was a student, he drove taxis, on a part-time basis, to support himself and his family.

3. On 25 May 2015, the applicant was granted a sub-class 457 (temporary work (skilled)) visa, pursuant to the Migration Act 1958.  The visa in question was subject to condition – namely that the applicant could only work in the occupation listed in the visa for the employer, who was nominated to provide his employment in that occupation.  In the applicant’s case, his visa nominated him to work only as a cook for his sponsor, Trehan & Sharmas Pty Ltd, which operates a restaurant in Murray Bridge.

4. In July 2016, information came to the attention of a delegate of the Minister for Immigration & Border Protection that the applicant had been working as a taxi driver, in contravention of his visa condition.  The applicant’s wife and child are classified as secondary visa holders, whose entitlement to remain in Australia depends on the continuing grant of a visa to the applicant.

5. On 8 July 2016, the Minister’s delegate wrote to the applicant in the following terms:

   “The standard business sponsor who nominated you in the most recently approved nomination for the visa is TREHAN & SHARMAS PTY LTD (the sponsor) who nomination was approved on 25 May 2015 for you to work for them in the occupation of a Cook 351411.

   Reliable information received from the Department reveals that you have been driving a taxi since January 2015.  Driving a taxi or even holding a taxi license demonstrates that you have not only been performing the duties performed by a Cook 351411.

   Based on the information it appears that Rajesh SALARIA has not worked in the occupation listed in the most recently approved nomination for the visa.

   If this is correct, your visa may be cancelled under paragraph 116(1)(b) of the Migration Act 1958 because you have not complied with a condition of the visa.[5]”

   [5]  See casebook at page 18

6. Pursuant to the provisions of 116 of the Migration Act 1958, the Minister may cancel a visa, under the Act, if satisfied that an applicant has not complied with a condition pertaining to the grant of the visa in question.

7. Thereafter, Mr Salaria provided a statement to the Department in which he denied driving a taxi or otherwise utilising a taxi driver’s license at any time after 25 May 2015.  In support of this assertion, he provided a number of payslips from his employer Trehan & Sharmas Pty Ltd, who operated the restaurant in Murray Bridge, at which he had been employed as a cook. 

8. On 18 July 2016, the Minister’s delegate decided to cancel Mr Salaria’s 457 visa, pursuant to the provisions of section 116 of the Act. As a consequence, the applicant applied to the AAT for a review of this decision, on 25 July 2016. Thereafter, he was invited to appear before the Tribunal on 9 November 2016 to provide evidence and present any arguments relating to the visa cancellation.

9. The applicant attended the relevant hearing and was assisted by a Hindi interpreter.  In addition, he provided a written submission to the Tribunal, in which he again denied that he had breached his visa conditions by working in the taxi industry, after the grant of his 457 visa, on 25 May 2015.  The applicant’s submission can be summarised as follows:

   ·He drove taxis, on a part-time basis, whilst he was a student;

   ·After doing two trial shifts, he had been offered employment, as a chef, at an Indian restaurant in Murray Bridge;

   ·His working hours were usually from 2:30pm to 9:30pm;

   ·As he continued to live in Adelaide, it took him approximately sixty minutes to travel between his work in Murray Bridge and his home;

   ·In these circumstances, he did not have time to drive taxis and had not done so;

   ·As a consequence, he was being penalised for something he had not done.

10. In all of these circumstances, the applicant asserted as follows:

    “I have been living in Australia since 2007 and I am law abiding person.  my daughter was born here.  My daughter was born on 20/06/2014.  My family is settled well in Australia and It would destroy our lives if We donot get the visa back.  I don’t know why this is happening to me and I am being penalized for what I have not done.  I am very stressed and depressed and worried about future of myself and family.” (as in the original)

11. In this context, the applicant’s grounds of review appear to turn on to assertions, which impliedly suggest that the decision of the Tribunal is legally unreasonable in some way.  Firstly, the applicant did not have time to work a second job, as a taxi driver.  Secondly, some other person had utilised his taxi pin and this person’s employment, as a taxi driver, had been erroneously attributed to the applicant.

12. Essentially, it would appear to be the applicant’s position initially that it was illogical or unreasonable for the Tribunal to have concluded, from the evidence available to it, in the face of his denials, that he had, in fact, been employed as a taxi driver and therefore had breached the employment condition attached to his visa.  It is clear from the relevant decision of the AAT that the applicant maintained his position that he had not breached the terms of his visa during his evidence to that Tribunal. 

13. At the outset of the proceedings before me, with the assistance of a Hindi interpreter, I attempted to explain to the applicant the nature of a jurisdictional error and the fact that I was not conducting a re-hearing of his application, which would enable me to reconsider the evidence relevant to his familial situation and his assertion regarding the access of others to his taxi pin number, so that potentially there could be a different finding of fact made to that reached by the AAT.

14. In this context, Mr Salaria indicated to me that he had, in fact, been employed in driving taxis, after the grant of the visa in question, but only because financial necessity dictated that he should do so.  In this context, he alleged that his sponsoring employer had been underpaying him and this was a matter which had come to the notice of the Fair Work Ombudsman. 

15. The applicant has not provided any documentary evidence to support his assertions in this regard.  In particular, he has not provided any documentary evidence to support his allegation that his sponsor has been reported to the Fair Work Ombudsman or is otherwise under investigation for underpaying either the applicant or any other person.  In all of these circumstances, the applicant submitted that he wished the court to “give him another chance.”

16. Accordingly, the applicant has put his case on a different basis to that which was propounded by him before the AAT and delineated in his applicant for judicial review to this court.  In both instances, the applicant asserted there were factual errors or some aspect of illogicality, which resulted in the AAT’s determination being legally unreasonable in some way and therefore the resulting decision being rendered void.

17. It would now appear to be the applicant’s position that the Tribunal has unreasonably exercised its discretion, arising under section 116 of the Act, particularly in respect of the manner in which it has applied Departmental policy to that discretion, which has resulted in the cancellation of his visa, notwithstanding his otherwise good immigration record in Australia.

18. The applicant did not avail himself of the opportunity to provide the court and the first named respondent with any written submissions.  In addition, I appreciate that it is very difficult for the applicant to articulate the bases on which he asserts the AAT’s decision is lacking in jurisdictional integrity other than for him to tell the court he disagrees with it; believes it is unfair to him and his family; and therefore wishes for another outcome.

19. To some extent, it might be said that it is to the applicant’s credit that he has made clean breast of it and admitted his breach of the relevant visa condition.  However, his change of heart has taken the Minister by surprise.  In these circumstances, the Department is not in a position to evaluate the applicant’s assertions against any applicable policy considerations or ascertain the truth or otherwise of them. 

20. In addition, in my view, it is not the role of this court to conduct some form of re-hearing of the applicant’s re-formulated case, as this would, in effect, involve a re-hearing of the case, on its merits, which is not an outcome available on judicial review.

The Decision of the AAT

1. The Tribunal, in my view correctly, determined that its jurisdiction arose pursuant to section 116(1)(b) of the Migration Act, which reads as follows:

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

   b.its holder has not complied with a condition of the visa; or”

2. Accordingly, it is clear as a consequence of the utilisation of the word may in the section that the power to cancel as a consequence of non-compliance with a condition is discretionary. 

3. In these circumstances, the Tribunal characterised the jurisdiction conferred upon it, particularly what were the matters which it was required to consider and the questions it was required to answer, in the following terms:

   “Under s.116(1)(b) of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.[7]”

   [7]  See casebook at page 94 [6]

4. The Tribunal characterised the applicant’s oral evidence to it, in respect of the issue of whether he had breached the condition attaching to his visa, as being hesitant and evasive particularly in regards to the possibility that others might have used his taxi pin number.[8]  It noted that the applicant had been given the opportunity to provide documentary evidence to support his denial that he had not worked as a taxi driver after the grant of the visa but had not availed himself of it. 

   [8]  Ibid at page 95 [15]

5. As a consequence, the Tribunal, on balance, was satisfied that the applicant had breached the visa condition by working as a taxi driver after 25 May 2015.  In any event, the applicant has acknowledged to the court that he did, in fact, work as a taxi driver, after this date. 

6. Thereafter, the Tribunal considered whether it should exercise the discretion conferred upon it not to cancel the applicant’s visa.  In this context, the Tribunal correctly noted that there are no matters specifically mentioned in either the Act or the Migration Regulations 1994 pertaining to how this discretion is to be exercised.

7. However, it also noted that the Procedures Advice Manuel (referred to by the acronym PAM3) provides the relevant policy of the Department concerning visa cancellations arising from section 116 of the Act. The matters potentially relevant to such a decision include the following:

   ·the purpose of the visa holder’s travel to and stay in Australia;

   ·the extent of compliance with the visa condition;

   ·the degree of hardship that may be caused to the applicant and other family members;

   ·the circumstances in which the ground for cancellation arose;

   ·the applicant’s past and present behaviour towards the Department;

   ·other mandatory legal consequences of cancellation;

   ·Australia’s obligations under any relevant international agreement; and

   ·Any other relevant matter.

8. In his submissions to the Tribunal, the applicant clearly raised issues of great personal hardship arising to him and his family, if the visa in question was cancelled.  In particular, he stated that it would destroy his family and be particularly injurious to his child, who had the potential to suffer health problems, if returned to India.

9. In the context of the matters contained in the PAM3, the Tribunal found as follows:

   ·the applicant had some family support structures available to him in India;

   ·the applicant would not be subject to any form of persecution in India and would therefore be unlikely to seek protection in Australia as a refugee;

   ·the applicant had otherwise a good immigration history and was not known to have previously breached any visa conditions;

   ·he had been hitherto cooperative with the Department;

   ·there was nothing to indicate that the breach of visa had arisen for any matter beyond the applicant’s control; and

   ·Australia would not be in breach of any of its international obligations.

1. In terms of the obvious hardship, which would be occasioned to the applicant and his family, if they returned to India, the Tribunal found as follows:

   ·there would be a period of adjustment but some form of income support through the applicant’s family farm would be available, which would assist with reintegration into Indian society;

   ·the applicant had some training and skills available to him from his period of time in Australia;

   ·the applicant’s English skills were of a good standard;

   ·it was possible that the applicant could apply for a bridging visa, whilst he finalised his affairs in Australia;

   ·the applicant’s child would not be separated from either of her parents.

2. In all these circumstances, the Tribunal concluded as follows:

   “The concerns raised over the applicant’s credibility and change of evidence…do not mitigate the visa breach…

   Overall, the Tribunal considers that the evidence from the applicant in respect of the breach of condition 8107 attached to his visa does not mitigate the circumstances in his favour.  Having considered the available information and evidence before it and the relevant factors discussed above, the Tribunal considers that, on balance, the reasons for cancelling the visa do not outweigh the reasons to cancel the visa in this particular case.”[9]

   [9]  Ibid at page 98 [30] – [31]

3. The reason now advanced, by the applicant, for not cancelling the visa in question was not put by him to the Tribunal.  Nor, in my view, was it impliedly put.  Rather the applicant denied having breached the visa in any way whatsoever and was disbelieved in this regard by the Tribunal.  Accordingly, the Tribunal was not in a position to consider the currently asserted exculpatory factor of financial necessity, arising from alleged workplace exploitation, because it was not put.

Discussion

1. What an applicant for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it. 

2. An error, which goes to the jurisdiction of an administrative body, was described in these terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[10]

   “What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

   [10]  See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

3. In Minister for Immigration & Citizenship v Li[11] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker.  As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.

   [11]  Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76]

4. I am satisfied that the Tribunal correctly identified the jurisdiction which had been conferred upon it.  It was required, firstly, to consider whether there existed grounds to justify the cancellation of the applicant’s visa and, if so, secondly, whether the overall circumstances were such to justify this decision.  This latter discretion was to be informed by applicable Departmental policy.

5. In terms of the first issue, in my view, it is clear that the Tribunal correctly identified the question which it was required to determine in order to acquit the jurisdiction conferred upon it.  It rejected the applicant’s evidence that he had not breached the condition of his visa by engaging in a form of employment not authorised by it. 

6. In addition, in my view, this determination cannot be characterised as being legally unreasonable in the terms delineated in Li.  The reasons the Tribunal concluded that the applicant had been employed as a taxi driver are both intelligible and logical.  Clearly this was a decision within jurisdiction.  As such, it is not open to a court, on judicial review, to substitute its own findings of fact.

7. The difficulty arising in this case is that, on judicial review, the applicant has articulated a reason for the applicable discretion to be exercised in his favour, which he did not articulate before either the delegate or the AAT, namely that he had been employed by an unscrupulous employer, who did not pay him appropriately and this state of affairs drove him to breach his visa condition.

8. The review process is inquisitorial rather than adversarial in nature.  Nonetheless, the Tribunal is required only to deal with the material put before it by the applicant concerned.  Accordingly it is not the Tribunal’s responsibility to articulate a case for any applicant or to search out any other bases, not squarely put by the applicant concerned, which may cause it to exercise any discretion conferred upon it in a different way.[12]

   [12]  See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]

9. In NABE (No 2) the Full Court of the Federal Court said that a reviewer was required to consider all claims expressly appearing on the face of the material before him/her.  However this exercise was not to be performed in a creative manner.  This is because the failure of a reviewer to consider a claim raised by the evidence (whether or not articulated) amounts to a failure of procedural fairness and therefore a jurisdictional error.  However such a reviewer is “not obliged to deal with claims which are not articulated and which do not clearly arise from the material before it.”[13]

   [13] Ibid at [60]

10. In this context, the Full Court had regard to the following comments of Gleeson CJ (albeit in dissent) in S395 v Minister for Immigration and Multicultural Affairs:

    “Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process.  Even so, this court has insisted that, on judicial review, a decision must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.” [14]

    [14]  S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 quoted in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) ibid at [62]

11. In this case, the applicant elected to mislead both the delegate and then the Tribunal regarding the circumstances surrounding his breach of visa condition.  Thereafter, before this court, he has decided to put his case on a different tack in regards to his application, which he did not take before the Tribunal.  In my view, because this issue was not raised before the Tribunal, it cannot later be found to constitute a jurisdictional error.

12. In El Ess v Minister for Immigration & Indigenous Affairs[15] Gray J described the PAM3 as being not binding on a decision-maker under the Act as it was “intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations.”   As such, a failure to apply the guidelines provided by PAM3 may potentially have some significance in establishing error but is not indicative of jurisdictional error per se.

    [15]  El Ess v Minister for Immigration & Indigenous Affairs (2004) 142 FCR 43 at [45]

13. Again, in my view, no jurisdictional error can be gleaned from the manner in which the Tribunal chose to exercise the discretion conferred upon it in the sense envisaged either in Li or Yusuf.  The Tribunal made reference to the PAM3.  Although not strictly bound by it, it considered the matters set out in it relevant to the exercise of its discretion.

14. In addition, the Tribunal considered the matters advanced by the applicant and balanced the various factors identified – some favouring the applicant, others not – to reach the decision, which it did.  As such the decision cannot be characterised as lacking jurisdiction or to be legally unreasonably, in a procedural sense or lacking in overall intelligibility. 

15. The relevant decision of the AAT is characterised, under the Act, as being a privative clause decision.[16]  As such, pursuant to section 474, the decision is deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.

    [16]  See Migration Act at section 5

16. Accordingly, given the failure of the applicant to establish any jurisdictional error, his application must be dismissed.  The first respondent seeks costs in an amount of $6,000.00.  I will make an order for costs in this amount.

17. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:       6 April 2018

[6]  See case book at page 82