Singh v Minister for Immigration - [2016] FCCA 3053

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3053

Catchwords:
MIGRATION – Application to review Administrative Appeals Tribunal decision – visa cancelled because applicant found to have worked, in breach of visa condition – finding based on what applicant told Tribunal – Tribunal’s decision clearly open on the facts – application dismissed.

Legislation:

Migration Act 1958 (Cth) s.116(1)

Migration Regulations 1994 (Cth) sch.8

Applicant:

SATNAM SINGH

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 68 of 2016

Judgment of:

Judge Burchardt

Hearing date:

13 October 2016

Date of Last Submission:

13 October 2016

Delivered at:

Dandenong

Delivered on:

5 December 2016

REPRESENTATION

Counsel for the Applicant:

Mr Singh appearing in person

Counsel for the Respondent:

Ms Milutinovic

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application filed 2 March 2016 be dismissed.

The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

No. ADG 68 of 2016

SATNAM SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By an application filed on 2 March 2016, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 2 February 2016. The Tribunal affirmed a decision of the delegate of the first respondent to cancel the applicant’s Subclass 573 Higher Education Sector visa.
The grounds of application run to some nine paragraphs and can be categorised in a general way as being merits review. I do note that at paragraph 3 of the grounds of application the applicant complained that the circumstances in which he was first interviewed by officers of the Department were unsatisfactory. He could not hear what they were saying properly or answer properly and his interview with the interpreter was wholly unsatisfactory. There are a number of other complaints to which the applicant returned in his submissions before the Court.
The affidavit filed contemporaneously with the application only appends the decision of the Tribunal. The applicant has not filed any further materials, but confirmed that he had the first respondent’s written submissions.
The Tribunal’s decision is at Court Book (“CB”) 264 - 269. The Tribunal categorised the application for review at paragraphs 1 to 4. The Tribunal noted, and it is uncontroversial, that the applicant came to Australia as a secondary applicant on his wife’s Subclass 573 Student (Temporary) (class TU) visa. His wife was granted the visa to study a Masters in Science (Computer Science) at Flinders University. They arrived in Australia in January 2015 and in June 2015 the applicant was found in an immigration compliance visit to be working at a strawberry farm in Mount Barker.
A delegate of the first respondent found that Mr Singh had been working in excess of 40 hours per fortnight and that this breached a condition of his visa and cancelled the visa on 5 June 2015.
The Tribunal Member turned her mind to whether the applicant had breached condition 8104 of schedule 8 to the Migration Regulations 1994 and noted that if such breach had occurred and pursuant to s 116(1) of the Migration Act 1958, the visa might be cancelled.
Condition 8104 was annexed to the Tribunal’s decision and, relevantly, provided that family members of the primary visa holder must not engage in work in Australia until the primary visa holder has commenced a course of study and must not do so for more than 40 hours a fortnight (in the circumstances relevant for these purposes).
The Tribunal noted at paragraph 13, (CB266) that:
During the time Mr Singh was working Ms Kaur had not commenced her masters course. Ms Kaur was enrolled in an English for Academic Preparation course, but did not achieve the level of English required to commence her masters study. She then completed a ten week English for Academic Purposes course on 6 November 2015. Mr Singh provided a copy of her certificate from this course. Ms Kaur’s enrolment in the Masters of Science (Computer Science) at Flinders University was cancelled. She has now enrolled in a Master of Technology (Software Engineering) which commenced 16 November 2015 at Federation University. The Department alleges Mr Singh worked from February 2015 to 5 June 2015, and I find in this period Ms Kaur had not commenced her masters course.
The Tribunal went on to paraphrase the evidence given by the applicant at paragraphs 14 – 20 (CB 266-267). The Tribunal noted a number of inconsistencies in what the applicant said from time to time. The Tribunal noted at paragraph 15 that the applicant started work at 7 am or 7.40 am and, if the weather was hot and they were not busy, he would be sent home early sometimes, sometimes as early as 12 noon. At paragraphs 16 - 20, the Tribunal noted:
On being asked why it was recorded in the decision of the delegate, a copy of which was provide by Mr Singh to the tribunal, that Mr Singh had told the Department he worked 7am to 3pm every day, Mr Singh said that during that time of ten days when the questions were asked of him was the weather was rainy they worked every day for planting so it was approximately 30 hours in that ten day period.
On it being observed if he had worked 10 days continuously, he would have worked more than 30 hours in that fortnight, he said this was in June and he calculated the hours himself and it was no more than 30 or 32 hours. He said it was rainy and there was no work there. He said there was no planting until the rain had stopped. This is not consistent with his statement to the department that he worked 7am to 3pm, which would equate to approximately 70 hours in a ten day period.
On being asked about the department record that he has said at interview he had worked at the strawberry farm for ten days but the farmer said he worked there since February, Mr Singh said he meant to say he had been working for the last ten days in a row, but he had started working in February when he started working three to four days a week.
Mr Singh provided a number of different answers to attempt to explain the number of hours he worked; from never more than 20 hours a week, to 22 a week, to 30 hours in 10 days. He also said he worked from 7am to 3pm. I do not consider his evidence supports his initial claim that he did not work for more than 20 hours a week, and find it more likely he was working in excess of 20 hours a week.
I find Mr Singh engaged in work in Australia that was in excess of forty hours per fortnight, and that he was in breach of condition 8104 of his visa from February 2015 until he was located at the workplace by immigration officers on 5 June 2015.
The Tribunal then went on to consider whether the discretion to cancel the visa should be exercised. The Tribunal found at paragraph 23 (CB 267):
I did not find Mr Singh to be an impressive witness. He started off asserting he had never worked more than twenty hours a week, then said he only worked twenty to twenty two hours a week and then that during one period he worked thirty hours in ten days or three hours per day. He also said he had calculated this and it was no more than 30 or 32 hours in that period. The variety of answers to a question that he knew was in issue in the proceedings led me to doubt that any answers about the number of hours he worked were truthful.
The Tribunal went on to note the various difficulties that had confronted both Mr Singh and his wife while they were in Australia. The Tribunal noted the hardship that would be caused to the applicant and his wife if his visa was rescinded. The applicant referred to having spent about $57,000 of which $25,000 has already been paid and his wife is now working in a restaurant. The Tribunal noted that if the applicant’s visa was cancelled his wife could remain in Australia and study.
The Tribunal noted that hardship and stress for the wife would result in the event that her husband was removed, but noted that there was no evidence to support the proposition that the wife suffered from any illness or condition for which she required her husband’s care and presence in Australia. The gravamen of the Tribunal’s decision is at paragraph 36 (CB 268) and the Tribunal said:
I have considered all of the information before me, but have concluded the visa should be cancelled to maintain the integrity of the work rights provided to secondary visa holders and support the obligation of visa holders to be clear about the nature of his or her work rights. There is nothing before me that convinces me Mr Singh is required to remain in Australia to support his wife. I am not convinced that Ms Kaur would not be able to continue her study if Mr Singh is not in Australia.
The applicant and his wife attended court and were assisted by an interpreter. The applicant spoke first. He said that when the incident happened he was in a very small room with two other people and three departmental officers. He was given an interpreter over a speaker phone and it was a very windy day. He had not understood the interpreter properly. The statements he made through the interpreter then were the same as those he said in the Administrative Appeals Tribunal.
He had said he was working from February for three days per week. When the employer was questioned, this took place in a separate room. The employer said one of the three had been working since February, but he did not know which one. The applicant only saw the owner twice as he was working for only three days per week. The Department took the employer statements as being to the effect that he had been there since February, but did not accept two or three days per week for 20 hours.
He said if there were 10 people in front of the employer, the employer, the employer would not be able to identify him. He said the Department never received any written evidence or, if they did, he was not aware of it. He was never asked for written evidence. Only oral submissions were made. The employer’s account was taken into account and based on this his visa was cancelled. Before he was taken into the room to which he had referred, he was questioned at the farm in English, but did not know what had been said to him.
When he was given an interpreter, it was very noisy and he was not sure that he understood the interpreter or had been correctly interpreted by them. He asked rhetorically why were his oral submissions not given any weight. He said the AAT Member did not investigate properly and gave the same decision as the Department. He said the only difference was that the employer is an Australian citizen and he is not.
The AAT Member gave the same decision as the Department without written evidence. He said that if there was a mistake by the Department, that is fine, but the Tribunal should have called his employer at the hearing and the employer should have been asked to give written evidence of his work. There were 70 employees at the farm full time, and he was only called to work when there was a lot of work. The applicant referred to paragraph 23 of the Tribunal’s decision and complained that if the Tribunal had any doubts about his evidence, why was this doubt not cleared up. He said the Tribunal should have called the employer to the hearing and cleared this doubt. He said the Tribunal member misused law.
She made a decision based on assumptions rather than verifying what happened. The applicant also complained that there was an allegation he had not followed his visa condition for five months. He said he started work in late February and the officers came on 5 June, which is just over three months. The Tribunal said five months. He said the officers asked him what time he started and finished and he said 7 am to 3 pm, but they did not ask him what time he himself started or how many days he worked at the farm.
He said he worked 30 to 32 hours in 10 days during the planting season, but the AAT member said 70 hours in 10 days. The applicant asked how this was calculated. No written evidence had been asked of the employer. The applicant went on to describe his wife’s studies and the understandable difficulty of taking exams under such stress. He referred to the $55,000–$60,000 in fees, to which reference has already been made. He complained of medical problems arising out of having to stay at home since his work was stopped in June.
He said his wife had become pregnant, but because of the uncertainty as to whether he could stay in Australia, they had to abort. The applicant’s submissions continued for some time, but I have to say that they were repetitive.
Counsel for the Minister was content essentially to rely upon the written submissions. She submitted it was clear from the Tribunal’s decision that the evidence upon which the Tribunal based its decision was from what the applicant had said at the hearing, and referred to paragraphs 14 - 20 of the Tribunal’s decision in this regard.
The complaints about the weight given what the employer said were misconceived, it was submitted, because the Tribunal’s decision was based on the applicant’s evidence. The only evidence from the farmer was that the applicant worked since February and the applicant himself accepted this. The reference to five months was clearly at paragraph 27 of the Tribunal’s decision, and counsel noted that from February to June is five months and any minor misdescription by the Tribunal was of no moment.
In reply, the applicant said he was confused at the Tribunal hearing and had not thought or been able to suggest that the owner of the farm be called. He said the Tribunal should have called the owner and asked for written evidence. The reference to written evidence was a repeated and recurring theme in the applicant’s oral submissions. The applicant explained how he had tried to get evidence from both the farmer and an associated contractor but had been unable to do so. The applicant’s wife then sought to address the court, and I permitted this. However, after a relatively short while, I had to interrupt because her submissions were, as far as I could see, entirely repetitive of the matters that her husband had raised.
In the end, it is clear from reading the Tribunal’s decision that the Tribunal did, as counsel for the first respondent submitted, base her decision on what the applicant actually said to her at the Tribunal hearing. The Tribunal’s finding of fact that the applicant had worked, more likely than otherwise, in excess of 20 hours per week from February till June was, on any view of the matter, one open to the Tribunal on the evidence before it.
The decision to cancel the visa, accordingly, was not one that, in my opinion, attracts criticism. The Tribunal was clearly aware of the various compassionate matters which the applicant and his wife raised, although it does not appear that the abortion asserted before the Court was mentioned to the Tribunal member. The Tribunal member’s decision to cancel the visa to maintain the integrity of work rights provided to secondary visa holders was plainly one open to the Tribunal on the materials.
Although it puts the matter shortly, the fact is that the Tribunal well understood the task it had to confront. The Tribunal was well aware of the applicable law. The Tribunal approached the matter in a manner which seems to me to be, on the materials, entirely fair, and the decision does not reveal any error, let alone jurisdictional error, such that the Court should intervene. It therefore follows that the application will be dismissed with costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 5 December 2016