Singh v Minister for Immigration
[2018] FCCA 381
•26 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 381 |
| Catchwords: PRACTICE & PROCEDURE – Application to join husband as an applicant in the proceedings – husband was not a party to the proceedings before the Tribunal – husband’s visa was cancelled automatically as a member of the applicant’s family unit by operation of law – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.137Q, 137T, 140, 338, 359A, 360, 362A, 424A, 425, 476 Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) |
| Cases cited: Director General of Social Security v Chaney [1980] FCA 87; (1980) 31 ALR 571 Farah & Ors v Minister for Immigration & Anor [2010] FMCA 801 |
| Applicant: | BINU SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1934 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 13 July 2017 |
| Date of Last Submission: | 2 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin by Direct Access |
| Solicitors for the Respondents: | Mr L Leerdam of DLA Piper Australia |
ORDERS
The application made to join the applicant’s husband as a party to these proceedings is refused.
The application made on 14 July 2015 and amended on 26 June 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,580.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1934 of 2015
| BINU SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mrs Binu Singh initiated proceedings in this Court on 14 July 2015 by filing an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review the decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), which, on 19 June 2015, affirmed the decision of the delegate of the Minister (“the delegate”) to cancel her Regional Sponsored Migration Scheme (“RSMS”) visa.
The matter was listed for final hearing on 13 July 2017. At the final hearing, Mrs Singh was represented by counsel. The Minister was represented by a solicitor.
Mrs Singh’s counsel sought leave to proceed by way of an amended application which also sought to add another party to the application before the Court. That other party was Mrs Singh’s husband (Mr Anamol Dhaubhadel). The basis for this was said to be because Mr Dhaubhadel also applied for review to the Tribunal with Mrs Singh, and further, that his visa was cancelled as he held it as member of Mrs Singh’s family unit.
The Minister responded that a recent case in the Federal Court on appeal from this Court had clarified this issue. In short, the Minister submitted that Mr Dhaubhadel’s visa was cancelled by operation of s.140 of the Act as a consequence of the cancellation of Mrs Singh’s visa by the Tribunal. The Minister submitted that therefore the cancellation of Mr Dhaubhadel’s visa was not part of, or a decision made by, the Tribunal. Therefore he should not be a party to the proceedings before the Court.
It was appropriate in the circumstances to give both parties the opportunity to make further written submissions in this regard. Mrs Singh filed further written submissions on 24 July 2017, and the Minister filed further written submissions on 2 August 2017. The parties were content for the hearing to continue in relation to the ground of the amended application, and for the Court to subsequently consider whether a further hearing was necessary if Mr Dhaubhadel was to be added as a party to the proceedings.
For the reasons that immediately follow, I find that Mr Dhaubhadel should not be added as a party to the current proceedings.
The evidence before the Court includes a bundle of relevant documents filed by the Minister and tendered by Mrs Singh (“the Court Book” - “CB”, “AE1”). There is also the affidavit of Mr Toufic Laba Sarkis, made on 26 June 2017, which annexes a transcript (“T”) of Mrs Singh’s hearing before the Tribunal.
The relevant background is as follows. Mrs Singh is a citizen of Nepal. On 18 January 2013, Mrs Singh applied for a Regional Employer Nomination (Class RN) visa (the RSMS visa). She was granted the visa on 20 June 2013, to commence employment with her sponsor, Bathurst Hair and Beauty Pty Limited (“the sponsor”) (CB 1).
On 19 December 2013, the sponsor notified the Minister’s department via email of the following (CB 1.6):
“Please note the employment for Mrs Binu Singh has been terminated due to non-compliance with terms and conditions of the employment contract. Binu has not joined the company and has no intention of joining. She is not responding to directors call to join and is not communicating. She has been advised by someone in DIAC that she does not have to join or is compelled to work in the region.”
By letter dated 26 May 2014, Mrs Singh received a Notification of Intention to Consider Cancellation (“NOICC”) of her RSMS visa pursuant to s.137Q of the Act (CB 7). Given Mrs Singh’s application now to join Mr Dhaubhadel as a party to the current proceedings, it is relevant to note that there is no evidence of any communication to him from the Minister’s department.
Mrs Singh responded by email dated 23 June 2014 (CB 11 to CB 14). In essence, Mrs Singh claimed that she had previously worked at the sponsor’s premises in Lithgow on a “voluntary” basis. She said that she had fallen pregnant, and on medical advice, did not move to Lithgow. She remained in Sydney. She also claimed that she was required to pay a large amount of money to the sponsor to obtain the RSMS visa.
The delegate decided to cancel her RSMS visa on 3 July 2014 pursuant to s.137Q(1) of the Act (CB 60.7). Mrs Singh was notified by letter dated 4 July 2014 (CB 60 to CB 65). The notification letter attached the delegate’s decision record (CB 66 to CB 73).
For current purposes, the following from the delegate’s decision record is relevant (CB 66.1):
“Client Details
Family Name: Dhaubhadel Singh
Given Names: Binu
Date of Birth: 27 July 1984
Citizenship: NEPAL
Application ID: C6ZKH477K
Visa Details
Visa class/subclass: Regional Employer Nomination (class RN) Regional Employer Nomination (subclass 187)
Date of visa grant: 20 June 2013
Visa expiry date: [blank]
File Number: BCC2014/13365.”
Further, the delegate stated (CB 67.2):
“It has come to my attention that the visa holder has never commenced their employment with their nominating sponsor for their visa. The period prescribed by the [Migration Regulations 1994 (Cth)] for commencing employment with their sponsor is defined by Regulation 2.50AA …”
The delegate also stated (CB 67.7):
“On 19 December 2013, the visa holder’s sponsor notified the Minister that the visa holder Mrs Binu Singh has been terminated due to not commencing the employment and has no intention to commence.”
The delegate then stated (CB 68.2):
“The visa holder further submitted that she believed the reason that the sponsor reported her was because she did not pay the sponsor money. The visa holder submitted that the sponsor has wanted $40,000 for the RSMS application, and that visa (sic) holder only paid a portion of that amount.”
The delegate then went on to state (CB 70.4):
“ – the circumstances in which the ground for cancellation arose
The Sponsor has informed the Minister that the visa holder has not commenced employment and has no intention to commence employment after obtaining her RSMS visa. The visa holder stated that the sponsor only made the complaint because she did not pay the sponsor. Based on the visa holder’s submission, it appears that the visa holder and the sponsor were in an arrangement that the visa holder had to pay the sponsor for the sponsor not to report the non-commencement of the employment. When the visa holder failed to pay the sponsor to continue their arrangement, the sponsor has reported the visa holder to the Minister for non-commencement of employment. Therefore I place significant weight in (sic) this as reason to cancel the visa.”
Neither the delegate’s decision record, nor the attached letter notifying Mrs Singh of the cancellation of her RSMS visa, made any reference to Mr Dhaubhadel. On their face, the letter notifying of the cancellation, and the delegate’s decision record, were directed only to the visa held by Mrs Singh (as the person who met the primary criteria for the grant of the RSMS visa). The delegate then stated the following in the decision record (see CB 71.9):
“After careful consideration of all information before me, I am satisfied there is a ground for cancelling BINU DHAUBHADEL SINGH’s Regional Employer Nomination (class RN) Regional Employer Nomination (subclass 187) visa and I am satisfied the grounds for cancelling the visa outweigh the grounds for not cancelling.”
The notification letter also contained the following (CB 61.9):
“As your visa has been cancelled, any family unit members (for example a spouse or dependent children) who hold visas because they were members of your family unit, have had their visas automatically cancelled. If another person (other than a family unit member who held a visa because they were a member of your family unit) holds a visa only because you hold a visa, then that person’s visa may be cancelled without notice.”
Mrs Singh made an application for review to the Tribunal on 8 July 2014 (CB 74 to CB 76). Mrs Singh identified the decision to be reviewed as being the visa cancellation as notified to her on 4 July 2014 (CB 74).
The application for review to the Tribunal attached a copy of the delegate’s decision record (CB 76.1 and see CB 77 and CB 89).
The application to the Tribunal also listed Mr Dhaubhadel as an applicant for review (CB 75.5). There is nothing in the evidence to indicate that Mr Dhaubhadel held any visa, or if he did what visa he held, at that time, or that the delegate’s decision included any cancellation of any visa he had held.
Notwithstanding this, the Tribunal acknowledged the applications made by both Mrs Singh and Mr Dhaubhadel by letter dated 9 July 2014 (see CB 91.3).
By letter dated 5 August 2014 (sent by email on the same date) Mrs Singh was invited to attend a hearing before the Tribunal scheduled for 19 September 2014 (CB 95 to CB 97). The letter of invitation was addressed only to Mrs Singh (CB 96.2). There is nothing in that letter to indicate that any invitation to appear before the Tribunal was also extended to Mr Dhaubhadel, or indeed was a party to that notice.
On 6 August 2014, the Tribunal received notification that Mrs Singh had appointed a registered migration agent to represent her (CB 98). There is nothing in the evidence to indicate that Mr Dhaubhadel provided any such notice.
On that same date, Mrs Singh applied for access to relevant Migration Review Tribunal files, and departmental files, pursuant to s.362A of the Act. Mrs Singh was granted partial access to these documents (CB 102 to CB 103). On the evidence, no such application was made by Mr Dhaubhadel.
On 29 August 2014, the Tribunal received a completed “Response to Hearing Invitation” form signed only by Mrs Singh (CB 105.6). On that form, Mrs Singh indicated that she would attend the Tribunal hearing on 19 September 2014 (CB 104.4).
Mrs Singh nominated two witnesses from whom she said she wanted the Tribunal to take oral evidence. One of those witnesses was Mr Dhaubhadel, whom Mrs Singh described as (CB 105.3):
“Anamol is my husband and was dependent applicant (sic) of my visa application.”
On 2 September 2014, Mrs Singh notified the Tribunal of a change in her representative to that of Parish Patience Immigration Lawyers. In a letter from a senior solicitor from that firm, Mr Dhaubhadel was described as the “secondary applicant” (CB 106.3). However, only Mrs Singh signed the “appointment of representative” form (CB 107.9). Similarly, a “change of contact details” form referred only to Mrs Singh and was signed by her alone (CB 102 to CB 109).
On 17 September 2014, the representative made written submissions to the Tribunal (CB 114 to CB 117 with annexures to CB 164).
Mrs Singh appeared before the Tribunal on 19 September 2014. Mr Dhaubhadel attended, but on what is before the Court, does not appear to have given oral evidence (CB 165). Mrs Singh again appeared before the Tribunal on 14 November 2014 (CB 193). Further documentation was provided by Mrs Singh’s representative to the Tribunal on 24 September 2014, and yet further documents were provided at the resumed hearing (CB 172 to CB 180 and CB 193.7).
The Tribunal affirmed the delegate’s decision to cancel Mrs Singh’s RSMS visa on 19 June 2015 (CB 201 to CB 224). The Minister’s written submissions filed in these proceedings contain a fair summary of the Tribunal’s analysis and findings. For the purposes of this judgment I adopt the relevant paragraphs as follows
([16] – [22] of the Minister’s written submissions filed on 6 July 2017):
“[16] The MRT was satisfied that the applicant commenced working for the Bathurst salon within six months of the date of visa grant and found that the applicant had stopped working for the sponsor in November 2013 (at [120]).
[17] In considering whether the applicant's employment was terminated within two years starting from the day that the applicant commenced employment, the MRT was satisfied that the applicant commenced fulltime employment on 1 July 2013 and ceased employment in November 2013. The MRT did not accept that the applicant was on maternity leave (at [122]).
[18] The MRT found that it was not until the Department was informed by the sponsor that the applicant had failed to attend her work and the NOICC was issued, that the applicant revealed the money that she had given to the sponsor (at [125]). The MRT was satisfied that the applicant colluded with the sponsor to defraud the Department and did not intend to work in Lithgow for the sponsor, for the two year period after the applicant was granted permanent residency.
[19] The MRT was not satisfied that the applicant had made a genuine effort to be engaged in the employment for the required period (at [134]). The MRT concluded that section 137Q(2)(a) of the Act was met (at [136]). The MRT found that the applicant had not satisfied the MRT that she had made a genuine effort to be engaged in employment for the required period, and accordingly, section 137Q(2)(b) of the Act was met. The MRT found that the grounds for cancellation of the applicant's visa had been made out (at [137]).
[20] In considering whether it should exercise its discretion to cancel the visa, the MRT noted that the applicant's child was an Australian citizen and stated that it considered the child's best interests as its primary consideration. It was satisfied that the child's best interests 'could be met if the child returned to Nepal with his parents'. The MRT noted the applicant's concerns about health care and education, however, citing the child's age, the MRT found that the child's best interest[s] were to be with his parents when they returned to Nepal at [144].
[21] The MRT recorded the applicant's submission in relation to Australian obligations under CROC and that the child would return to Nepal with his parents (at [146]). It found that the child's best interest would be met by the child returning to Nepal with the applicant and her husband. The MRT found that the applicant was reasonably placed to provide the appropriate care and opportunities for her child in Nepal. The MRT cited the applicant's skill as a hairdresser and her husband's employment in Australia to find that they would be able to access higher levels of education and healthcare(at [147]).
[22] The MRT concluded that whilst it had regard to the best interest of the child as a primary consideration, it placed significant weight on the finding that the applicant obtained the RSMS visa in collusion with the employer as part of an arrangement to help the applicant remain in Australia (at [148]).”
Consideration
This Court does have the power to include Mr Dhaubhadel as a party to these proceedings pursuant to rr.11.01 and 11.02 of the Federal Circuit Court Rules 2001 (Cth). The question now is whether it is necessary, or appropriate, to do so.
Mrs Singh’s RSMS visa was cancelled pursuant to s.137Q of the Act. Mr Dhaubhadel’s visa was cancelled as a consequence of s.137T of the Act, which, at the relevant time, was in the following terms:
“Section 137T
Cancellation of other visas
(1) If a person’s visa is cancelled under section 137Q, a visa held by another person because of being a member of the family unit of the person is also cancelled.
(2) The cancellation under subsection (1) of this section is set aside if the cancellation of the person’s visa under section 137Q is set aside under Part 5.”
Section 338(3) of the Act, at the time, was in the following terms:
“Section 338
Decisions reviewable by Migration Review Tribunal
…
(3) A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is an
MRT-reviewable decision unless the decision:
(a) is covered by subsection (4); or
(b) is made at a time when the non-citizen was in immigration clearance; or
(c) was made under subsection 134(1), (3A) or (4) or section 501; or
(d) was made personally by the Minister under section 109 or 116 or subsection 140(2).” [sub-section (d) was added on 11 December 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (No. 129, 2014)]
Section 338(3) of the Act provides for “decisions” (as defined in the Act) to cancel certain visas, to be reviewable by the Tribunal under Part 5 Division 2 of the Act, unless they fall within one of the circumstances set out at s.338(3)(a) - (d) of the Act.
Mrs Singh argues that the cancellation of her RSMS visa was a “determination”, which in effect resolved a “substantive issue” in respect of Mr Dhaubhadel. That is, the cancellation of her RSMS visa was the “ultimate or operative determination” of Mr Dhaubhadel’s rights (Director General of Social Security v Chaney [1980] FCA 87; (1980) 31 ALR 571 at page 591 per Deane J with Fisher J agreeing and see [4] of Mrs Singh’s further written submissions filed on 24 July 2017).
In this light, Mrs Singh argues that as none of the factors in
s.338(3)(a) – (d) of the Act applied, the decision to cancel Mrs Singh’s visa, which also involved the determination of, and therefore included, Mr Dhaubhadel’s rights, was a reviewable decision under Part 5 Division 2 of the Act, including in relation to Mr Dhaubhadel.
Mrs Singh argues that s.137T of the Act as it applies in this case, is similar to s.140(1) of the Act. That section was the subject of consideration by this Court in Farah & Ors v Minister for Immigration & Anor [2010] FMCA 801 (“Farah”) (see at [54] – [61]). In essence, and ultimately, Mrs Singh argues that the application of the reasoning in that case to the current circumstances, means that the cancellation of Mr Dhaubhadel’s visa was a part of the decision to cancel Mrs Singh’s visa ([6] – [8] of Mrs Singh’s further written submissions filed on 24 July 2017).
Farah was upheld on appeal (Farah v Minister for Immigration and Citizenship [2011] FCA 185 (“Farah FCA”)). However, on this issue, the Federal Court took a different view to the primary Judge. The Federal Court stated (Farah FCA at [2] and see [3] of the Minister’s written submissions filed on 2 August 2017):
“The second, third, fourth and fifth appellants were also applicants in the Federal Magistrates Court. Their visas depended upon their status as family members of the first appellant. Their visas were cancelled not by the delegate under s 109, but by operation of s 140 of the Act itself. Although they purported to apply to the Tribunal for a review of the delegate’s decision to cancel their visas, the Tribunal held, rightly in my view, that it did not have jurisdiction to review the operation of s 140 of the Act. Both the proceedings before the Tribunal and the application in the Federal Magistrates Court were concerned wholly with the circumstances of the first appellant, and it is likewise those circumstances which should govern the disposition of the present appeal. Unless that appeal is successful, the visas of the other appellants will remain cancelled by the operation of s140. In the circumstances, I shall refer to the first appellant as ‘the appellant’, and say nothing further about the other appellants.”
[Emphasis added.]
In short, the visas of the family members in Farah were not cancelled by a “decision” of the delegate, but separately by operation of law. In Farah FCA, it was only the person who was the subject of the cancellation of the visa by the delegate who was treated as a party to the proceedings before the Court. The members of the family unit were not treated in this fashion.
Mrs Singh described the reasoning in Farah at first instance as “persuasive” on this point ([8] of Mrs Singh’s further written submissions filed on 24 July 2017). Mrs Singh now argues that this Court should follow Farah at first instance because first, what was said on appeal was obiter dicta (on a different section of the Act), and second, the applicant in Farah FCA was unrepresented before the appellate Court.
However, both those circumstances described above (at [42]) applied to the situation of Farah at first instance. They do not provide any basis to argue that the Court of first instance should be followed.
In any event, contrary to Mrs Singh’s submissions, what was said by the appellate Court in Farah FCA at [2], is directly relevant to the issue in dispute between the parties now. In that light, I consider it binding on this Court, especially given that the circumstances on appeal in Farah are relevantly similar to the current case. It is plainly not available for this Court to consider whether Farah FCA was wrongly decided as is also sought by Mrs Singh now.
It is the case, as Mrs Singh submits, that Mr Dhaubhadel was named as an applicant in the application for review to the Tribunal. As set out above, the Tribunal acknowledged his application (see above
at [20] – [23]).
However, it is important to note the following. Mr Dhaubhadel was not the subject of the delegate’s decision in respect of which Mrs Singh sought review by the Tribunal. Therefore, there was no basis on which Mr Dhaubhadel could seek review of that decision by the Tribunal.
The reason as to why the Tribunal did not immediately notify Mrs Singh and Mr Dhaubhadel of the fact that he was not the subject of a reviewable decision, and thus could not be an applicant in the review, was not explained before the Court.
However, on the evidence before the Court, there is nothing to show that the Tribunal member who was constituted to conduct the review, ever treated Mr Dhaubhadel as an applicant. The only applicant before the Tribunal in light of the Tribunal member’s conduct was Mrs Singh (see CB 201, and the entirety of the Tribunal’s decision record including the repeated references to “applicant” rather than “applicants” and the Tribunal’s conduct at the hearing from the transcript in evidence before the Court). There is no legal error in the Tribunal proceeding in this fashion which it must be said, mirrored the approach of the appellate Court in Farah FCA.
In all, the decision which was the subject of the review before the Tribunal, was the cancellation of Mrs Singh’s RSMS visa. The delegate did not cancel Mr Dhaubhadel’s visa. The references in the delegate’s letter of notification to “any family members”, are, in context, a general pro forma advice as to any consequences for family members holding visas as members of the family unit of the person the subject of the relevant visa cancellation.
In the current case, Mr Dhaubhadel’s visa was, as the delegate’s letter stated, “automatically cancelled” (CB 61.9 and see [19] above). This does not constitute a “decision” by the delegate.
There was no basis on which to include Mr Dhaubhadel in the application for review to the Tribunal. While the Tribunal officer acknowledging the application could have taken steps to notify Mr Dhaubhadel that he could not be an applicant before the Tribunal, there is no legal error in the Tribunal proceeding to treat Mrs Singh as the only applicant for review before it.
Before the Court, it became apparent that Mrs Singh’s objective in seeking to include Mr Dhaubhadel as a party to these proceedings was to raise an additional complaint asserting a breach of s.360 of the Act. That is, that Mr Dhaubhadel was denied the opportunity, as an applicant, to give evidence to the Tribunal.
While at the hearing before the Court, leave was granted to Mrs Singh to amend her application, that amendment made no reference to s.360 of the Act. It only referred to s.359A of the Act. It may be that Mrs Singh was waiting to see if Mr Dhaubhadel was to be included as a party before seeking to further amend the application. In subsequent written submissions, Mrs Singh sought to yet further amend the application by adding a second ground. That is, to assert a breach of s.360 of the Act as previously mentioned.
The complete answer to Mrs Singh now is that under s.360 of the Act, the Tribunal’s obligation extends only to applicants before the Tribunal. Mr Dhaubhadel was not an applicant before the Tribunal, and had no capacity to be an applicant in the review. The only Tribunal applicant, Mrs Singh, was invited to a hearing. On the evidence, it was a meaningful opportunity to give her evidence in relation to the issues in the review (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494, Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 and Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575). There is no complaint now from Mrs Singh as to the conduct of the hearing in relation to her.
In her written submissions to the Court, Mrs Singh says that her husband (Mr Dhaubhadel) could have given oral evidence to the Tribunal to support her evidence, regarding her difficulty in travelling to Lithgow to go to work (see [12] of the Mrs Singh’s written submissions filed on 2 August 2017).
The Minister submits that Mrs Singh “could have nominated her husband as a non-applicant witness at the AAT hearing, in relation to the dispositive issues she herself raised for decision” (see [9] of the Minister’s written submissions filed on 2 August 2017).
The Minister’s submissions made no attempt to explain the fact that in her “Response to Hearing Invitation” form, Mrs Singh did nominate Mr Dhaubhadel, as a person from whom she asked the Tribunal to consider taking evidence. If the Minister’s submissions seek to assert she made no such nomination, that must be rejected.
However, the transcript of the hearing provided by Mrs Singh to the Court reveals that at the hearing, both Mrs Singh and her representative explained that Mr Dhaubhadel (along with other members of her family), was not there to give evidence, but to give “moral support” (T1 line 12 to 19 and see also the reference at T4 line 7):
“[Member]: …Now you brought quite a lot of people with you. Is there any reason why you need this many in the hearing room?
[Mrs Singh]: Just for, they are my family and they are my friends, just for the moral support.
[Member]: You have to speak up, I can’t hear you.
[Applicant]: They are my family, my husband and mum and my son and they are my friends from the church, just for the moral support they are here.”
[Emphasis added.]
In all therefore, leave is refused to add Mr Dhaubhadel as a party to these proceedings. The application to yet further amend the application for this purpose, is also refused.
This leaves the sole ground of the amended application which is in the following terms:
“1. The Second Respondent failed to comply with s 359A of the Act.
Particulars
The second respondent failed to invite the applicant to comment on the information in the email from Priya S dated 19 December 2013 that would have been a reason or part of the reason for affirming the decision of the delegate to cancel the applicant’s visa.”
Mrs Singh asserts that the Tribunal failed to comply with s.359A of the Act in respect of “information” contained in an email from Mrs Singh’s sponsor. The email is in the terms as set out above at [9].
Mrs Singh submits that the “information” is ([3]a. – [3]f. of Mrs Singh’s written submissions filed on 26 June 2017):
“a. That Ms Singh’s employment had been terminated by Bathurst Hair and Beauty Pty Ltd due to non compliance with terms and conditions of the employment contract.
b. That Ms Singh had not joined the company
c. That Ms Singh had no intention of joining the company
d. That Ms Singh is not responding to director’s call to join and is not communicating
e. That Ms Singh has been advised by someone in DIAC that she does not have to join
f. That Ms Singh has been advised by someone in DIAC that she is not compelled to work in the region.”
Mrs Singh’s position is that all of this “information” falls within the obligation in s.359A(1) of the Act. The Minister asserts that all of the “information” is excluded from the operation of s.359A(1) of the Act by s.359A(4)(b) and (ba) of the Act.
Mrs Singh submitted that the following parts of the email “can be found in the delegate’s decision”.
a)“[T]erminated” (as it appears in the first line at CB 1.6).
b)“Binu has not joined the company and has no intention of joining” (part of the second and third lines at CB 1.6).
However, the following “information” was said not to have been given to the Tribunal by way of the delegate’s decision (CB 1.6):
“…she [Mrs Singh] has been advised by someone in DIAC that she does not have to join or is compelled to work in the region”.
Mrs Singh raised four arguments in explanation of her ground.
First, in relation to the information at [62] above, the Tribunal’s failure to give that “information” to Mrs Singh for comment or response, denied her the opportunity of arguing as to the “veracity” of the sponsor’s comments. That is because it was “unlikely” that anyone from the Minister’s department would have advised Mrs Singh of what was reported in the email.
Mrs Singh relied on SZNKO v Minister for Immigration and Citizenship [2010] FCA 297; (2010) 184 FCR 505 (per Flick J) (“SZNKO”) for the proposition that a fair opportunity to respond to the “information” requires not just “information” to be given that is “directly adverse”, but the context in which it appears. The contention is that the Tribunal failed to do this.
Second, again in relation to the same “information”, this “information” provides particularity to other information that Mrs Singh says was in the delegate’s decision. The “particulars” were said to go to the circumstances of Mrs Singh’s “non-compliance” (her non-attendance at work), and this was a discretionary element that the Tribunal was obliged to take into account in the consideration of the cancellation of the visa.
In her submissions on this point, Mrs Singh referred to SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90 (“SZTGV”) and SZNKO, as to the level of particularity of the “information” to be given and Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; (2011) 192 FCR 173 (“Khan”), as to the circumstances when s.359A of the Act is engaged.
In relation to the circumstances when s.359A of the Act is engaged, the argument appeared to be that in the current case, simply because the Tribunal found (contrary to the delegate) that Mrs Singh had commenced employment, this did not mean that s.359A of the Act was not engaged. This is said to be because this was initially “information” adverse to Mrs Singh, and it continued to be so after the hearing. In the circumstances, in the absence of anything to the contrary, this “information” was a part of the Tribunal’s consideration in affirming the delegate’s decision to cancel Mrs Singh’s visa.
Third, those parts of the “information” not in the delegate’s decision, were substantively adverse to Mrs Singh, with particular reference to s.137Q of the Act and therefore, again with reference to Khan, that “information” should have been put to her.
Section 137Q(1)(b) and s.137Q(2)(b) of the Act at the relevant time were in the following terms:
“Section 137Q
Cancellation of regional sponsored employment visas
(1) Employment does not commence
The Minister may cancel a regional sponsored employment visa held by a person if:
…
(b) the person does not satisfy the Minister the he or she has made a genuine effort to commence that employment within that period.
(2) Employment terminates within 2 years
The Minister may cancel a regional sponsored employment visa held by a person if:
…
(b) the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period.”
In short, Mrs Singh submits that the “information” given by the sponsor to the Minister’s department, that Mrs Singh had been advised that she did not have to “join” or be “compelled” to work, is adverse to her claim that she made genuine efforts to commence employment.
Fourth, Mrs Singh argues that the delegate’s decision was not “given” to the Tribunal in the relevant sense, such as to engage s.359A(4)(b) of the Act.
Mrs Singh referred to SZTGV (at [22]), and in particular relied on the reference in that case to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 (“SZEEU”) (per Weinberg J at [179]), to argue that she did not have the sponsor’s letter. Therefore, simply attaching the delegate’s decision to her application to the Tribunal cannot be said to involve her giving that information to the Tribunal for the purposes of the review.
In the course of submissions before the Court, Mrs Singh also referred to NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419) (“NBKT”) (per Young J) and SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627; (“SZDPY”) (per Kenny J discussing SZEEU).
None of Mrs Singh’s arguments reveal a breach of s.359A of the Act.
First, I find on the evidence that Mrs Singh did give the delegate’s decision record to the Tribunal for the purposes of the review (SZTGV and see CB 76.1 and the relevant attachment at CB 77 to CB 90).
Second, before the Court, and as set out above, Mrs Singh relied on the “terms” of the sponsor’s letter to identify what she said was “information” caught by s.359A of the Act. That letter must be seen in the totality of the case before the Tribunal.
Mrs Singh however, although making references to these “terms” (what was said in the sponsor’s email), and relying on what she said was the relevant context, or circumstances, to make out her case of a breach of s.359A of the Act, did not seek to explain, with reference to those circumstances, what was stated by the sponsor.
For example, on its face, the reference to Mrs Singh’s “termination” (presumably of her employment), appears to be inconsistent with the subsequent statement that “she has no intention of joining” (presumably, the sponsor’s business). That is, Mrs Singh had no intention of commencing work. On its face, this raises the question of how she could be “terminated” from an employment situation that she did not commence.
The answer to that is found in the Tribunal’s finding that “the applicant has been a willing participant in fraud on the [Minister’s] Department and Australia” ([140] at CB 221). This was further explained with the finding that ([148] at CB 222 to CB 223):
“…[t]he visa [the subject of the cancellation] was obtained by the applicant in collusion with the employer as part of an arrangement to help the applicant remain in Australia… The applicant continued to give less than truthful evidence in relation to [those] matters, including at the hearing.”
The Tribunal’s findings in this regard, and its finding that Mrs Singh “was a willing party to the fraud”, and that she “was not honest in her dealings with the [Minister’s] Department” ([128] at CB 219), were adverse findings as to her credibility, and the genuineness of her claim to have meaningful employment with her sponsor.
It is to be remembered that s.359A of the Act is concerned with what the Tribunal considers to be the “information” that would be the reason, or a part of the reason, for affirming the delegate’s decision. Mrs Singh’s submissions now, and her reliance on authorities which emphasise the question of procedural fairness, were put in the context of seeking to argue that the Tribunal’s alleged failure led to her losing a fair opportunity to know the case against her, and to be able to answer it.
Third, Mrs Singh in her submissions, focused on s.359A(4)(b) of the Act (which is analogous to s.424A(3)(b) of the Act for current purposes), and cases concerned with the wording of that subsection (that is, “information that the applicant gave for the purpose of the application for review”).
The Minister directed attention to s.359A(4)(ba) of the Act which he said was enacted after, and in response to many of the authorities on which Mrs Singh now seeks to rely (see the Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 (Cth) and as the Minister submits NBKT, SZDPY and SZEEU). Relevantly, s.359A(4)(ba) of the Act provides that s.359A(1) of the Act does not apply to “information” that:
“…the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the [Minister’s] [d]epartment”.
Fourth, the question as to what the Tribunal considers to be “information” that is a part of the reason for affirming the delegate’s decision, must be considered in the statutory context in which the delegate’s decision was made. Contrary to what underpinned Mrs Singh’s argument, the starting point for consideration is not the email from the sponsor, but the statutory context and criteria relevant to the decision under review, and the review of that decision.
The delegate cancelled Mrs Singh’s RSMS visa pursuant to s.137Q of the Act. In that context, the Minister referred the Court to the delegate’s notation in her decision record that, “[t]he sponsor has informed the Minister that the visa holder has not commenced employment and has no intention to commence employment after obtaining her RSMS visa” (CB 70.5).
I have some difficulty with the Minister’s submission that this notation was drawn from the email from the sponsor. The sponsor’s email, as referred to above, appears contradictory and ambiguous.
The Minister however, is on far stronger ground when he invited the Court to consider the “information” that Mrs Singh herself gave to the delegate, and subsequently to the Tribunal. Noting, again, “information” (for current purposes) is to be understood in the context of the statutory task set initially for the delegate, and ultimately, for the Tribunal.
What is set out in the sponsor’s email is given context by Mrs Singh herself, with her subsequent written submissions to the delegate.
Mrs Singh stated in writing that she started to work with the sponsor “when [her] RSMS visa was applied” (CB 11.8). That is, when she applied for the visa. Further, she states “[a]s I got my residency on 20 June 2013, I started to work in the salon officially from 1st July 2013. I worked there until November” (CB 12.1).
Mrs Singh’s written statement is lengthy and detailed. Amongst other things, Mrs Singh understood the ambiguity of the sponsor’s position, and addressed what she believed to have motivated the sponsor in “complaining” about her to the Minister’s department as follows (CB 12.5):
“Even being aware of the fact that I worked in the salon until November and I was on maternity leave after that, Priyanka the director of Bathurst Hair and Beauty Pvt (sic) Ltd made faulty complain against me to Immigration without giving me any notification. I was not even recovering well from the birth of my baby when I got email from immigration. I was discharged from hospital on 15th may 2014 and I got email on 19th may 2014. I have my own health recovering issue after giving birth and now because of her I got more stressed and tensed at the time when I have to be happy and stress free. After getting email, we tried to contact her many times to know why I got the email from immigration but she didn’t receive my call, nor she call me back. I even message her to know why I got the email but I didn’t hear anything from her. As I was working in the salon and I was on maternity leave, I was surprised and shocked after receiving mail from immigration. Only after getting second letter from immigration I came to know that she complained against me that I haven’t commence work after getting my permanent residence, but in the email that she sent me on 4th September 2013, she had mentioned herself that I was late in the salon on that day. If I haven’t even commence my work then why did she mention that I was late in salon on that day? I have attached the email that she sent mentioning I was late on salon with this letter.
The reason I believe she complained against me is because I didn’t pay her money. Actually while I was applying for my RSMS visa, the man whose name is Jaya(Jai) and who is friend or relative of Priyanka and Bobby (Jaya(Jai) whose name is mention in the email that I have attached) want $40,000 from me for the application of my RSMS visa. Bobby is husband of Priyanka. Jaya(Jai) told me that 40,000 is the total amount that I have to spend for Lawyer and immigration fee.”
[Errors in the original.]
In the decision record, the delegate noted the sponsor’s letter of 19 December 2013 (CB 67.8). As set out above, the delegate set out the circumstances in which the ground for cancellation arose, and placed “significant weight” on what the sponsor reported (CB 70.6). Included in this, was the statement from the sponsor that “the visa holder has not commenced employment” (CB 70.5).
However, the focus for current purposes must be on what “information” the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review.
Mrs Singh’s argument before the Court proceeded from the proposition that because the sponsor’s letter of 19 December 2013 was in the departmental file that had been given to the Tribunal, then the information, as it was presented in that letter, was the only “presentation” of that information to the Tribunal. Further, that its mere existence in that letter meant that it was “information” that the Tribunal considers to be a reason, or part of the reason, for affirming the delegate’s decision.
Section 359A (and s.424A) of the Act, should not be confused with s.360 (and s.425) of the Act. Mrs Singh has sought to conflate or interchange the concept of “issues” (relevant to s.360 of the Act) with “information” (relevant to s.359A of the Act). She has done so to then argue that an “issue” before the delegate was “information” relevant before the Tribunal in the context of s.359A of the Act.
The meaning of s.359A of the Act was, with respect, made clear by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (“SZBYR”) (with reference to the analogous s.424A of the Act), and directs attention to some point antecedent to the Tribunal’s decision record, (and in context after the application for review has been made) to the “information” that the Tribunal considers would be the reason or a part of the reason for affirming the delegate’s decision (SZBYR at [17]).
In the current case, Mrs Singh did not refer to any antecedent point in time in the conduct of the review where it could be said that there was evidence the Tribunal considered that the “information” in the sponsor’s email, was information that was a reason, or a part of the reason, for affirming the delegate’s decision.
At the Tribunal hearing, the Tribunal told Mrs Singh (T5 line 16 to 18):
“[Member]: Alright, just so it’s clear I accept that you worked at Hairbiz, so I want that to be on the record. This was prior to your being granted the subclass 187 visa but you know I accept that evidence.”
The “evidence” to which the Tribunal referred, was evidence that Mrs Singh herself gave to the Tribunal (see for example the representative’s submissions at CB 115.5, Mrs Singh’s statement at CB 118 to CB 119, and Mrs Singh’s witness statements at CB 123 to CB 125).
As the Tribunal subsequently explained (T5 line 20 to 24):
“[Member]: I’ve seen evidence in the terms of I think just a written statement and a statutory declaration and I believe there is a payment summary, I accept that. Alright what I have concerns about is your work with the Bathurst Salon.”
As set out above, the written statement given by Mrs Singh to the delegate (CB 11 to CB 15) was consistent with the written statement given by her to the Tribunal (CB 118 to CB 119), outlining that she had commenced work.
Before the Court, Mrs Singh did not refer to any point in the conduct of the review where the Tribunal considered the “information” as given by the sponsor (that Mrs Singh had not commenced work), was the reason, or a part of the reason, for affirming the delegate’s decision.
While the High Court in SZBYR made clear that the temporal focus is on some point antecedent to the Tribunal’s decision record, the decision record can assist in addressing the question of “information” that would be the reason or a part of the reason for affirming the delegate’s decision (SZTPY v Minister for Immigration and Border Protection[2015] FCA 565 at [18] per Davies J (see also SZTPW v Minister for Immigration and Border Protection [2015] FCA 564 at [24] per Davies J), SZRCG v Minister for Immigration and Citizenship[2013] FCA 483 at [17] per Rares J, MZYIA v Minister for Immigration and Citizenship[2011] FCA 642; (2011) 121 ALD 291 at [26] per Gray J, SZMPT v Minister for Immigration and Citizenship[2009] FCA 99; (2009) 107 ALD 121, SZLPO v Minister for Immigration and Citizenship (No.2)[2009] FCAFC 60; (2009) 177 FCR 29 and SZMFZ v Minister for Immigration and Citizenship[2008] FCA 1890).
It was made clear at the Tribunal hearing that the “information” that the Tribunal considered to be the reason, or a part of the reason, for affirming the delegate’s decision, was “information” to the effect that Mrs Singh herself, and her sponsor, had colluded to “defraud” the Minister’s department.
This was “information” which Mrs Singh herself gave to the delegate in writing for the purposes of the delegate’s consideration, and again subsequently for the purposes of the review before the Tribunal. Such “information” comes within the exception set out in s.359A(4)(b) and (ba) of the Act from the obligation s.359A(1) of the Act.
I agree with the Minister that the only relevance of the sponsor’s email to this matter was in relation to the NOICC of the visa issued to Mrs Singh by the delegate (CB 7 to CB 10). Once that notice was given, the question ultimately for the Tribunal was the reason that Mrs Singh was no longer employed at the sponsor’s business. This was in circumstances where the Tribunal, at the hearing, told Mrs Singh that it accepted that she had commenced employment with the sponsor.
In that light, the “information” that Mrs Singh was no longer employed was “information” given in writing by her to the delegate, and in writing, and orally, to the Tribunal. That is, that Mrs Singh and the sponsor had entered into an arrangement to obtain a visa for Mrs Singh. The “information” relevant to that matter was also given by Mrs Singh herself, both to the delegate and to the Tribunal.
The authorities on which Mrs Singh relies do not assist her. That is because, in the current case, the Tribunal’s assessment as to Mrs Singh’s credibility, and it must be said her honesty, was based on, and derived from, her own evidence as put to the Tribunal.
In the circumstances therefore, s.359A(4)(b) and (ba) of the Act apply. There was no breach of the obligation in s.359A(1) of the Act.
Conclusion
The sole ground of the amended application is not made out. It is appropriate to dismiss the application as amended. I will make the appropriate order.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 26 February 2018
0
27
4