SHRESTHA v Minister for Immigration

[2020] FCCA 234

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 234

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Subclass 457 (Temporary Work (Skilled)) visa – whether the Tribunal complied with ss.359A, 359C and 359G of the Migration Act 1958 (Cth) – whether the Tribunal had jurisdiction in relation to the second applicant – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 140, 348, 359A, 360, 379G, 476

First Applicant: RANJIT SHRESTHA

Second Applicant: RADHIKA SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1393 of 2019

Judgment of: Judge Street

Hearing date: 6 February 2020

Date of Last Submission: 6 February 2020

Delivered at: Sydney

Delivered on: 6 February 2020

REPRESENTATION

The First Applicant and the Second Applicant appeared in person.

Counsel for the First Respondent: Mr G Johnson

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The first applicant and the second applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 6 February 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1393 of 2019

RANJIT SHRESTHA

First Applicant

RADHIKA SHRESTHA

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 May 2019 affirming a decision of the delegate (“the Delegate”) to cancel the first applicant’s Subclass 457 (Temporary Work (Skilled) (Subclass 457) visa and holding that the Tribunal had no jurisdiction in respect of the second applicant. 

2. The applicants are citizens of Nepal.

3. On 31 March 2015, the first applicant was granted a Subclass 457 visa in the occupation of cook, sponsored by The Coast Bar and Restaurant Pty Limited (“the sponsor”) located on the Central Coast in New South Wales, pursuant to a sponsorship agreement made under an approved nomination.

4. It was a condition of the applicant’s Subclass 457 visa that “the holder must only work for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination” pursuant to cl 8107(3)(a)(i) of the applicant’s visa.

5. It was also a condition of the Subclass 457 visa that “if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days” pursuant to cl 81.07(3)(b). 

6. On 28 June 2018, the sponsor advised the Department of Immigration and Citizenship (“the Department”) that the first applicant was on “unpaid leave” from 22 January 2018 until 1 July 2018. On 4 July 2018, the sponsor notified the Department that the first applicant had ceased working with the sponsor on 1 July 2018. 

7. On 19 November 2018, the Delegate sent to the first applicant a notice of intention to cancel the Subclass 457 visa under s 116(1) of the Act on the basis that the first applicant had not complied with a condition of his visa, being condition 8107(3)(b).

8. On 23 November 2018, the first applicant responded to the Delegate. The first applicant referred to there being a dispute with his employer causing him not to work for a period but that he resumed his employment with the sponsor until 15 September 2018. The first applicant also referred to having located a new employer.

9. On 27 November 2018, the first applicant sent the Department a letter, apparently from the sponsor, stating that the first applicant continued to work through to 15 September 2018.

10. On 18 December 2018, the Delegate decided to exercise its discretion to cancel the first applicant’s Subclass 457 visa pursuant to s 116(1) of the Act. The Delegate found that the first applicant’s visa should be cancelled by operation of s 140 of the Act.

11. On 21 December 2018, the first applicant applied to the Tribunal for a review of the Delegate’s decision and included the second applicant in the application. The application for review expressly appointed a migration agent and provided the migration agent’s email details for the purpose of the application for review. 

12. By email dated 28 March 2019, consistent with the statutory obligation under s 379G of the Act, the Tribunal wrote to the applicants’ migration agent inviting the applicants to comment on information and requiring the comments and the information to be provided by 11 April 2019. The letter dated 28 March 2019 also identified that, in the absence of a response, the applicants may lose any entitlement to appear before the Tribunal.

13. There is no dispute on the evidence before the Court that the applicants appointed the migration agent for the purpose of the review. It is apparent on the face of the review application that there was such an appointment.

14. In these circumstances, that applicants did not respond by 11 April 2019 to the invitation to comment letter dated 28 March 2019. The Tribunal proceeded to make a decision pursuant to s 360(2) of the Act, as it was entitled to do, having found that the applicants had lost their right to appear pursuant to s 360(2) of the Act, and that the invitation letter dated 28 March 2019 was taken to have been received by the applicants.   

15. The Tribunal, in its reasons, identified the background to the first applicant’s visa application.

16. The Tribunal identified that the only decision the subject of the Tribunal’s jurisdiction pursuant to s 348 of the Act was that concerning the first applicant. The Tribunal identified that the second applicant had no matter before the Tribunal the subject of review because of the operation of law being an automatic cancellation under s 140(1) of the Act. The Tribunal was correct to hold that it had no jurisdiction in relation to the second applicant. 

17. The Tribunal identified the sending of the request provided under s359A of the Act and the absence of a response from the first applicant in that regard. The Tribunal noted that the applicants were represented by a migration agent. The Tribunal found that, in those circumstances, the applicants, lost their right to appear before the Tribunal.

18. The Tribunal considered whether the grounds for cancellation specified under s 116(1)(b) of the Act had been made out.

19. The Tribunal was satisfied that the first applicant had the opportunity to explain the circumstances with his sponsor both as to the commencement of his employment and the termination. Given the unsatisfactory nature of the first applicant’s response, the Tribunal was satisfied and gave weight to the information provided by the sponsor that the first applicant’s employment was terminated on 1 July 2018.

20. In these circumstances, the Tribunal was satisfied that more than 90 days had elapsed without the first applicant resuming his employment with the sponsor. 

21. In these circumstances, the Tribunal was satisfied that the ground for cancellation under s 116(1)(b) of the Act existed. 

22. The Tribunal turned to the issue of the exercise of discretion and identified the factors taken into account for this purpose.

23. Having considered all the information before the Tribunal, the Tribunal found that there were no matters or circumstances upon which the Tribunal might rely to exercise a discretion in favour of the first applicant not to cancel the Subclass 457 visa.

24. The Tribunal found that, on the weight of the evidence before it, the first applicant’s Subclass 457 visa should be cancelled. Accordingly, the Tribunal affirmed the decision under review. 

Before the Court

1. These proceedings were commenced on 6 June 2019. On 26 June 2019, the Court made orders providing the applicants an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to both applicants the nature of the hearing and both applicants confirmed that they understood the nature of the hearing as explained by the Court. 

3. From the bar table, the applicants referred to having made a complaint in relation to the migration agent, that was appointed on their behalf and identified in the review application, as not having forwarded to the applicants the letter from the Tribunal dated 28 March 2019 inviting the applicants to comment .

4. Negligence by the migration agent in not complying with the obligations of the migration agent to make communications to the applicants does not give rise to intentional dishonesty. There is no basis to find that the migration agent was acting in pursuit of a fraud of his own that had operative effect upon the Tribunal. On the face of the material before the Court, it is apparent that the notification of the decision was conveyed to the migration agent in accordance with s 379G of the Act and that the applicants pursued these proceedings as a result of that notification within time.

5. The applicants’ appointment and authorisation of the migration agent to receive communications was effected by the application for review. The applicants’ assertions that they did not sign a document appointing a migration agent do not identify any basis upon which the Court could find that the application for review that was lodged was outside the actual authority of the migration agent. It is clear that the applicants have sought to take the benefit of the application for review that was lodged on their behalf by the migration agent. The Court does not accept that the circumstances in which the migration agent failed to pass on the communication give rise to any basis upon which relevant error can be said to be made up by the Tribunal.

6. While the Court accepts that there is a power pursuant to which the Tribunal could take other steps to notify the first applicant, given the appointment identified in the application for review, and in the absence of any other communication beyond a failure to respond, there is an intelligible and obvious justification for the absence of any express consideration of the power to notify the first applicant other than through the migration agent. In these circumstances, there was no legally unreasonable failure by the Tribunal in respect of the consideration of the power to communicate directly with the first applicant.   

7. From the bar table, the applicants also asked the Court to determine the matter on compassionate or discretionary grounds. This Court has no discretion that it can exercise to grant relief unless there has been made out a relevant error by the Tribunal. Further, the Court cannot determine the matter on compassionate grounds. 

8. Nothing said by either applicant identified any error by the Tribunal in respect of the decision affirming the delegate’s decision concerning the first applicant’s visa. Nothing said by the applicants identified any error in the Tribunal holding that it has no jurisdiction in respect of the second applicant.

9. Accordingly, nothing said by the applicants from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. The Second Respondent made jurisdictional error at [9] by finding that the First Applicant had lost any rights to appear in the Tribunal to give evidence and present arguments.

   2. Further or in the alternative to 1, the Second Respondent made jurisdictional error at [8] by finding that the Tribunal wrote to the First Applicant on 27 December 2018.

   3. Further or in the alternative to 1 and 2, the Second respondent at [9] made jurisdictional error by finding that the Tribunal wrote to the First Applicant on 28 March 2019 ‘inviting him to comment or respond in relation to particulars of information which were provided to him under section 359A of the Act.’

   4. The Second Respondent made jurisdictional error by determining that it had no jurisdiction in relation to the Second Applicant.

Ground 1

1. The Tribunal was correct to find pursuant to s 360 of the Act that the first applicant had lost the right to appear before the Tribunal in circumstances where the first applicant had not responded in accordance with requirements of s359C of the Act within the period specified and the communication sent under s 359A of the Act.  

2. The applicants disagreed with the application of the statutory provisions. The assertion of unfairness does not identify any relevant error. Because of the statutory regime, the Tribunal complied with its statutory obligations in the conduct of the review. The Tribunal was correct to find, in the circumstances where the applicants were taken to have been notified by reason of the communication to their appointed migration agent under the Act, that the right to appear was lost. No jurisdictional error arises in relation to ground 1.

Ground 2

1. In relation to ground 2, the applicants referred to the Tribunal having sent a communication to the migration agent on 27 December 2018. That communication acknowledged that the application for review was properly communicated to the migration agent appointed by the applicants in accordance with s 379G of the Act. The applicant’s assertion of error by the Tribunal in that regard is without substance.

2. The applicants seek to obtain the benefit of the lodging of the application by the migration agent and identification of the migration agent in that application. In those circumstances, the migration agent was acting within the actual authority of the applicants in the receipt of the communications. On the face of the evidence before the Court, no jurisdictional error arises in relation to ground 2.

Ground 3

1. In relation to ground 3, the applicants sought to disagree with the communication sent to the migration agent that they had appointed in the application for review. For the reasons already given, it is apparent that the Tribunal complied with is statutory obligations. The Tribunal was correct to find that the applicants had been invited to comment under se 359A of the Act and that there had been no response in respect of that 359A communication. Accordingly, no jurisdictional error arose in relation to ground 3. 

Ground 4

1. In relation to ground 4, a disagreement with the finding by the Tribunal that it had no jurisdiction in relation to the second applicant does not identify any basis on which it could be said the Tribunal was other than correct in concluding that it had no jurisdiction concerning the second applicant. The second applicant has not advanced any submissions as to why the Tribunal had jurisdiction in respect of the second applicant.

2. Section 348 of the Act identifies the jurisdiction of the Court in respect of reviewable pt 5 decisions, which must meet the requirements in that regard of being made under s 347 of the Act. The cancellation by operation of the second applicant’s related visa, pursuant to s 116(1) of the Act, did not give rise to the making of any migration decision and did not give rise to any pt 5 reviewable decision. The Tribunal was correct to hold that it had no jurisdiction. Accordingly, no jurisdictional error is made out by ground 4.

3. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the transcript of published oral reasons for judgement of Judge Street delivered in open Court on 6 February 2020 and the parties were provided with sealed copies of the Court’s orders

Associate: 

Date:  3 March 2020