Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FCA 772
•18 July 2024
FEDERAL COURT OF AUSTRALIA
Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 772
Appeal from: Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2146 File number: NSD 693 of 2021 Judgment of: NICHOLAS J Date of judgment: 18 July 2024 Catchwords: MIGRATION – appeal from judgment of primary judge dismissing application for judicial review – whether appellants should be permitted to rely on grounds of appeal raising arguments not raised below – whether new grounds have any legal merit – leave to rely on new grounds refused Legislation: Migration Act 1958 (Cth) ss 52, 101, 103, 109, 140(1), 360, 362A, 424A
Migration Regulations 1994 (Cth) reg 2.55
Cases cited: Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525
Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 35 Date of hearing: 26 October 2023 Counsel for the Appellants: Mr R Chia (on a direct access basis) Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: MinterEllison Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 693 of 2021 BETWEEN: SUSHIL KUMAR SHARMA
First Appellant
RINKU SHARMA
Second Appellant
SHAKSHAM SHARMA
Third Appellant
MUSKAN SHARMA
Fourth AppellantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
18 JULY 2024
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The first and second appellants pay the first respondent’s costs of the appeal as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J:
Introduction
Before the Court is an appeal from a judgment of the Federal Circuit Court of Australia (as it then was) dated 17 June 2021 dismissing the appellants’ application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 25 May 2017 affirming a decision of the Delegate of first respondent (“the Minister”) to cancel the first appellant’s Subclass 175 (Skilled – Independent visa) (“the visa”).
The second, third and fourth appellants are the first appellant’s wife and children. The Tribunal found that it had no jurisdiction in respect of the applications for review filed by the first appellant’s family members. The cancellation of their visas occurred automatically upon cancellation of the first appellant’s visa. For convenience I will refer to the first appellant as the appellant.
It is not necessary to refer to the judgment of the primary judge in any detail because it is accepted by the appellant that neither of the two arguments he seeks to advance in support of his appeal were raised below. He also accepts that leave is required to raise those two arguments in this Court.
Factual background
The appellant is a citizen of Nepal. On 30 June 2009 he applied for the visa nominating his occupation as “cook” and stating that he had worked as a cook in the Momotarou Restaurant in Nepal from 1 February 2003 to 29 June 2009. He was granted his visa on 17 March 2014. He and his family arrived in Australia the following month.
By notice dated 12 August 2016 the Delegate informed the appellant that consideration was being given to the cancellation of his visa pursuant to s 109 of the Migration Act 1958 (Cth) (“the Act”) due to the appellant having provided an incorrect answer in his visa application. The appellant says that he did not respond to the 12 August 2016 notice because it was never received by him. There is evidence to show that the letter enclosing the notice was returned to Australia Post as “uncollected”.
On 8 September 2016, the Delegate cancelled the appellant’s visa under s 109 of the Act, finding in short that the appellant had provided “incorrect answers” and a “bogus document”, and that there was therefore non-compliance with ss 101 and 103 of the Act. The visas of the appellant’s wife and children were cancelled automatically pursuant to s 140(1) of the Act.
On 23 September 2016, the appellant and his family applied to the Tribunal for merits review of the Delegate’s decision.
On 6 February 2017, the appellant requested access to written material before the Tribunal under s 362A of the Act. On 8 February 2017 the Tribunal sent the appellant’s representative documents which included an unredacted copy of the departmental file.
On 15 February 2017, the appellant’s representative provided to the Tribunal various statutory declarations made by the appellant, his wife, and other persons with whom the appellant had worked in Nepal.
On 17 February 2017, the appellant attended a hearing before the Tribunal with his family and representative. One of the appellant’s witnesses, Mr Puran Chaudhary, gave evidence by telephone. Mr Raj Kishor Mahato, who was also nominated by the appellant as a witness, was not able to be contacted during the hearing.
On 16 March 2017, the Tribunal wrote to the appellant, inviting him to comment on and respond to information that it considered would be the reason or part of the reason for affirming the Delegate’s decision. The invitation referred to a letter dated 3 September 2010 from Mr Keshav Devkota, an accountant at Asian Pharmaceuticals, as well as “further investigations” conducted by the department’s overseas post which included telephone conversations with Mr Chaudhary and other staff at the Momotarou Restaurant.
On 27 March 2017, the Tribunal emailed the appellant’s representative and asked him to delete the documents sent to him on 8 February 2017. In its email the Tribunal stated:
I am writing in relation to the above application before the Migration and Refugee Division of the AAT.
The Tribunal has become aware that on 8 February 2017, [an officer] emailed you a response to your request for access to documents and, due to an oversight, provided full access to departmental file BCC2014/2394891 which contained personal information relating to a number of third parties.
You are kindly requested to permanently delete the departmental file attached to [the] email from your inbox and deleted items folder. If you forwarded the email to your clients, the Tribunal kindly asks you to request your clients to do the same. In addition, can you please send any hard copies of the departmental file that you or your clients may have printed from the email back to me at the following address - GPO Box 9955, Sydney NSW 2001. Once you have done this please confirm in writing by return email.
The Tribunal is currently preparing an edited version of the departmental file, removing the third party personal information, and will send that to you in due course.
Please note that you or your clients should not use or disclose any third party's personal information you may have received from the departmental file.
The tribunal sincerely apologises for this error and any inconvenience that it has caused you.
On 30 March 2017, the appellant’s representative requested an extension of time to respond to the 16 March 2017 invitation. The request was in these terms:
We represent Mr Sushil Kumar Sharma.
We received an invitation dated 16/3/17 to comment on certain adverse information received against our client which among others include information based on an enquiry conducted by an officer in Nepal. Subsequently on 27/3/17 we received an email stating that some classified information were sent to us pursuant to our request to get a copy of the records held by the Tribunal and asking us to delete that email and a new email will sent in due course.
In view of the above we request you to grant us time till 21/4/17 to reply to the invitation to comment on the adverse information.
Your early response will be appreciated.
On 31 March 2017 the Tribunal granted an extension of time until 18 April 2017.
The Tribunal’s decision records that the appellant’s representative was sent a redacted copy of the departmental file on 20 April 2017, but this file was not successfully delivered. The file was again sent to the representative on 9 May 2017, and the representative was (according to the Tribunal) telephoned by a Tribunal officer the following day to inform him that the file was been sent.
On 20 April 2017, the appellant’s representative responded to the 16 March 2017 invitation. At point (7) of the email, the appellant’s representative stated:
The actual recording the conversation [sic] between the outpost officer and the colleagues of the applicant was never provided to the review applicant, even the emails provided in relation to the above were asked to be deleted by the AAT. In view of the above it is submitted that full particulars as required under Sec 424A was [sic] not provided.
I note the grounds of appeal relied on by the appellant (set out below) make no reference to s 424A nor do they include any assertion that the Tribunal failed to comply with that provision.
On 25 May 2017, the Tribunal affirmed the Delegate’s decision to cancel the appellant’s visa. The Tribunal found at [79] that the appellant had not worked in the position of “cook” at the Momotarou Restaurant from February 2003 to June 2009 and that he had provided “incorrect answers” in his visa application. On that basis the Tribunal found that there had been non-compliance with s 101(b) of the.
The grounds of appeal
The two grounds of appeal specified in the appellant’s supplementary notice of appeal are as follows:
1.The second respondent denied the first appellant a fair hearing in material breach of sections 362A and 360 of the Migration Act 1958 (Act).
2.Further or in the alternative, the power to cancel the first appellant’s visa under section 109 of the Act did not arise or was not exercised reasonably in circumstances where the first appellant had not been “given” a “notice about the non-compliance”.
Each of the grounds of appeal was developed in written and oral submissions by counsel for the appellant.
Ground 1
Section 362A of the Act provides:
362A Applicant entitled to have access to written material before Tribunal
(1)Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.
(2)This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.
(3)This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).
The appellant submitted that the Tribunal denied him a real and meaningful opportunity to present evidence and arguments because it asked the appellant’s representative to delete the unredacted copy of the departmental file it had earlier provided and then only provided a redacted copy of the material after the time for responding to the 16 March 2017 invitation to comment had passed. It was further submitted that it could be inferred, as a matter of reasonable conjecture, that if the appellant had been granted access to the redacted file at the time of responding to the 16 March 2017 invitation, he could have provided a different response which would have given rise to a realistic possibility that the Tribunal’s ultimate decision would have been different.
In support of his submissions the appellant referred to Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525 (“Dhillon”). That was a case in which the Full Court found that a failure to disclose to Mr Dhillon certain material redacted from the departmental file that was provided to him resulted in a breach of s 360 and s 362A of the Act: see Dhillon at [25].
In his submissions counsel for the appellant made clear that the appellant did not contend that there was anything redacted by the Tribunal that should not have been redacted. Rather, the appellant’s case was that he had effectively been given nothing, or should be taken to have been given nothing, from the departmental file because on 27 March 2017 his representative was asked by the Tribunal to delete the unredacted file sent to him on 8 February 2017.
A fundamental difficulty with the appellant’s submission is that there is no basis for inferring that the delay in providing the appellant’s representative with a copy of the redacted file prevented the appellant from making any submission or providing any other relevant material to the Tribunal in response to the 16 March 2017 invitation. In particular, there is no evidence from the appellant or his representative indicating what use had been made of the unredacted file or whether it had been deleted prior to preparing and sending the 20 April 2017 email responding to the 16 March 2017 invitation. Moreover, there is no evidence which explains why the appellant’s representative did not or could not communicate with the Tribunal again after receiving the redacted copy of the file to request a further extension of time to respond, or further respond, to the 16 March 2017 invitation. In short, there is no evidence to show what impact (if any) any delay in obtaining access to the unredacted file had on the ability of the appellant to respond to the 16 March 2017 invitation. In the absence of any such evidence, the submission that the appellant was denied a real and meaningful opportunity to present evidence and arguments is untenable.
The Minister did not submit that he would suffer any prejudice in the event the appellant was granted leave to rely on ground 1. I also note that the appellant was self-represented before the primary judge. However, if a ground of appeal which raises a point not taken below lacks any legal merit then leave to rely on it will usually be refused: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 at [48] and Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 at [88]-[92].
I do not consider ground 1 has any merit. Leave to rely on ground 1 is refused on that basis.
Ground 2
Subsection 109(1) of the Act provides as follows:
(1) The Minister, after:
(a)deciding under section 108 that there was non-compliance by the holder of a visa; and
(b)considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c)having regard to any prescribed circumstances;
may cancel the visa.
Regulation 2.55 of the Migration Regulations 1994 (Cth) (“Regulations”), prior to amendment, relevantly provided:
(1) This regulation applies to:
(a)the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; …
…
(3)… for a document mentioned in paragraph (1)(a) … the Minister must give the document in one of the following ways:
…
(c) by dating it, and then dispatching it:
(i)within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person's last residential address, business address or post box address known to the Minister;
…
The appellant’s argument is that the address to which the 12 August 2016 notice was sent was not the “last residential address … known to the Minister” within reg 2.55(3)(c) of the Regulations.
The 12 August 2016 notice was sent by pre-paid post to the address “6/22A Maquarie Road [sic], Auburn NSW 2144 Australia” (“the Auburn address”). This was the address given on the appellant’s incoming passenger card dated 19 April 2014. The appellant submitted that this address could not have been the appellant’s “last residential address … known to the Minister” because it was the appellant’s “intended” address in Australia and the Minister should have known that the appellant had no residential address in Australia because the appellant would be arriving in Australia for the first time after being granted the visa. It was submitted that the Auburn address had never in fact been an address of the appellant. I should note that there does not appear to be any evidence of that asserted fact.
Section 52 of the Act relevantly provides:
…
(3A)A visa applicant must tell the Minister the address at which the applicant intends to live while the application is being dealt with.
(3B)If the applicant proposes to change the address at which he or she intends to live for a period of 14 days or more, the applicant must tell the Minister the address and the period of proposed residence.
…
The Auburn address was the only address communicated to the Minister in accordance with s 52(3A). The appellant did not communicate any change to his intended address as required by s 52(3B). It was open to the Minister in those circumstances to infer that the address at which the appellant stated he intended to live was the address at which the appellant later lived. That the appellant may not have ever lived at that address is beside the point. In this case, the Minister was told upon the appellant’s entry into Australia that the appellant intended to reside at the Auburn address but was never told that the appellant’s intentions changed. To the best of the Minister’s knowledge as at 12 August 2016 the appellant resided at the Auburn address.
Ground 2 is devoid of merit. Leave to rely on ground 2 is therefore refused.
Disposition
The appeal will be dismissed. The first and second appellants must pay the Minister’s costs of the appeal.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 18 July 2024
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