SINGH v Minister for Immigration - [2019] FCCA 3064

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3064

Catchwords:
MIGRATION – Administrative Appeals Tribunal – subclass 457 temporary work (skilled) visa – application dismissed for non-appearance – application to reinstate – 457 visa cancelled for non-compliance with condition 8107 – condition 8107 requiring visa holder not to cease employment for more than 90 days – Minister’s department issuing newsletter to migration agents saying that cancellation will not be considered where new employment nomination lodged within 90 days – here, new employment nomination was lodged within 90 days – Tribunal noted existence of newsletter, but apparently did not consider it – arguable ground of review – application reinstated.

Legislation:

Migration Act 1958, ss. 116(1)(b), 140, 338

Cases cited:

Minister for Immigration and Border Protection v Naqvi [2018] FCA 2075

Naqvi & Anor v Minister for Immigration & Anor [2018] FCCA 793

First Applicant:

TALWINDER SINGH

Second Applicant:

RAJWANT KAUR

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2359 of 2016

Judgment of:

Judge Riley

Hearing date:

16 October 2019

Date of Last Submission:

16 October 2019

Delivered at:

Melbourne

Delivered on:

16 October 2019

REPRESENTATION

Advocate for the first applicant:

In person

Advocate for the second applicant:

In person

Solicitors for the applicants:

None

Counsel for the first respondent:

Oliver Young

Counsel for the second respondent:

No appearance

Solicitors for the respondents:

Mills Oakley

ORDERS

The application filed on 31 October 2016 be reinstated.
The matter be listed for final hearing on a date to be advised.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2359 of 2016

TALWINDER SINGH

First Applicant

And

RAJWANT KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

There is before the court an application in a case seeking reinstatement of a migration application. The substantive application was dismissed on 5 August 2019 when the applicants failed to appear at the hearing scheduled on that day. The first applicant is the husband of the second applicant.
The application to reinstate was filed on 14 August 2019. It was supported by an affidavit sworn by the first applicant on the same day. He explained that he understood that the final hearing was on 15 August 2019 rather than 5 August 2019 and that was why the applicants did not attend the hearing.
The Minister opposed the reinstatement, largely on the grounds that, he said, the applicants had no reasonable prospect of success.
The background is that the first applicant's subclass 457 visa was cancelled on 14 June 2016 pursuant to s.116(1)(b) of the Migration Act 1958 (“the Act”). The subclass 457 visa was subject to condition 8107, which required that the first applicant not cease to be employed for a period of 90 days. In the present case, the first applicant's employment with Matangi Enterprise Pty Ltd ceased on 8 December 2015, and the first applicant did not obtain a further position within the 90 days permitted by condition 8107.
A delegate of the Minister considered that grounds for cancellation existed. The delegate considered various discretionary matters and then proceeded to cancel the visa. As a consequence of the first applicant's visa being cancelled, the second applicant’s visa was cancelled by operation of s.140 of the Act.
The applicants sought review by the Administrative Appeals Tribunal. The cancellation of the second applicant’s visa was not by virtue of any decision made by the delegate. Consequently, the Tribunal considered that it did not have any jurisdiction in relation to the cancellation of the second applicant’s visa.
The Tribunal upheld the delegate's decision in relation to the first applicant’s visa. The Tribunal considered that the grounds for cancellation existed in that the first applicant had not complied with condition 8107. That is, more than 90 days had passed since the first applicant had lost his job with Matangi Enterprise Pty Ltd and he had not gained other employment within that time. The Tribunal also considered various issues under PAM3 in relation to the cancellation of visas and decided that the circumstances were such that the discretion should be exercised in favour of cancellation.
The applicants raised a number of grounds in their application for review filed on 31 October 2016. Ground 1 of the application is that the Tribunal fell into error by not correctly applying s.338 of the Act. The applicants did not explain how that provision applied in the present case. Section 338 of the Act provides a definition of Part 5-reviewable decisions. It is not apparent how the Tribunal could have failed to correctly apply that provision. Ground 1 is not arguable.
Ground 2 of the application is that the Tribunal erred in failing to accept or properly consider the evidence that the first applicant's sponsor was legitimate. The issue before the Tribunal was not whether the applicant's sponsor was legitimate or not. The question for the Tribunal was whether grounds existed to cancel the first applicant’s visa. Ground 2 is not arguable.
Ground 3 of the application is that the Tribunal erred in not giving the applicant more time to legitimise the nomination. The applicants were represented by a migration agent at the Tribunal hearing. The agent asked the Tribunal to adjourn the matter.
The relevant chronology is that the first applicant's employment with Matangi Enterprise Pty Ltd finished on 8 December 2015. Under condition 8107, he had 90 days to obtain new employment. That 90 days would have expired in early March 2016. Prior to his employment with Matangi Enterprise Pty Ltd ending on 8 December 2015, the first applicant was offered employment by a company called Oz Green Homes Pty Ltd on 16 October 2015. Also on that date, Oz Green Homes Pty Ltd lodged a nomination application with the Department.
Oz Green Homes Pty Ltd’s existing sponsorship expired on 17 December 2015. That meant that the nomination in respect of the first applicant lodged on 16 October 2015 could not succeed.
Oz Green Homes Pty Ltd then lodged another sponsorship application and another nomination application on 5 February 2016. That was within the 90 days after the first applicant's employment with Matangi Enterprise Pty Ltd had ceased. On 8 February 2016, the first nomination application was refused on the basis that Oz Green Homes Pty Ltd's sponsorship had already expired.
The sponsorship application lodged by Oz Green Homes Pty Ltd on 16 October 2015 was approved on 11 February 2016. That meant that, in theory, Oz Green Homes Pty Ltd could successfully nominate the first applicant for a position. However, on 27 September 2016, the first applicant's second nomination, which was lodged on 5 February 2016, was refused by a delegate on the basis that the nominated position was not considered to be genuine. An application for review of that refusal was lodged with the Tribunal on 7 October 2016. That remained outstanding when the Tribunal made its decision 10 days later, on 17 October 2016. A third nomination for the first applicant was lodged by Oz Green Homes Pty Ltd on 13 October 2016. That was, again, a few days before the Tribunal made its decision.
The Tribunal addressed the request for an adjournment in paragraphs 32 to 35 of its reasons for decision. Those paragraphs are as follows:
32.I considered whether to adjourn making [a] decision in this case until the department makes [a] decision on the business nomination application lodged by Oz Green Homes Pty Ltd or until the tribunal makes [a] decision on [the] review application lodged in respect of the second nomination refusal. I considered whether, in the circumstances of this case, the review applicant had a fair opportunity to [find] an Australian company [which] is an approved standard business sponsor and [which] successfully nominated him for a position within the business, whether the approval of [the] nomination application is likely to be forthcoming and the significance of my decision to the applicants.
33.As explained to the applicant at the hearing, it is uncertain if and when the applicant will become the subject of an approved business nomination. If the tribunal were obliged to await the decision on [a] nomination application relevant to an applicant, the situation could arise whereby an applicant may remain within the immigration system by continuing to seek nomination from different businesses, even though such applications may be continuously refused. I note that the second nomination application was lodged by Oz Green Homes Pty Ltd on 5 February 2016 and the department did not make a decision until 27 September 2016 (almost eight months [later]). I also note that [it] is uncertain how long [it will] take for this tribunal to finalise the review application lodged in respect of [the] second business nomination refusal of 27 September 2016.
34.The tribunal is not disposed to delay making a decision indefinitely. I have taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs3 and Manna v Minister for Immigration and Citizenship4 where the Courts have held that the tribunal is not required to indefinitely defer its decision-making processes.
35.I note that it has been more than 10 months since the applicant ceased his employment with the company that was an approved standard business sponsor and that successfully nominated the application for a position of a Program or Project Administrator within the business. Based on the evidence before me, I am satisfied that the applicant was given [a] reasonable opportunity to secure employment with an Australian company [which] is an approved standard business sponsor [which] successfully nominated the applicant for a position within the business. I have also taken into consideration the fact that the applicant’s visa would, but for the cancellation, [have] ceased on 28 June 2017.
3 [2002] FCA 617
4 [2012] FMCA 28
As can be seen, the Tribunal turned its mind to whether it should grant an adjournment. The Tribunal said that it was not required to delay making a decision indefinitely and that a person could make constant applications to delay the eventual determination of the matter.
In this case, the first applicant was making applications with the same employer, and there is some reason to believe that the applications had technical deficiencies rather than substantive deficiencies. A large part of the delay was due to the Department taking from 5 February 2016 to 27 September 2016 to determine the second nomination with Oz Green Homes Pty Ltd. Overall, it is not beyond argument that the Tribunal's reasons in relation to denying an adjournment rise to the level of legal unreasonableness. However, I do not determine the present application on this basis.
The applicants also provided an outline of submissions filed on 31 May 2017. Those submissions begin by setting out various provisions of the Act without really explaining how they would substantiate a jurisdictional error in the circumstances of this case. I do not consider that any of the sections of the Act that the applicants have referred to in their outline of submissions would lead the court to consider that there was a jurisdictional error in this case.
The submissions also say that the Tribunal member failed to take into account that the first applicant had lodged a nomination within the required timeframe and there was a delay on the part of the delegate which led to the expiration of a sponsorship. This argument basically says it was the Department's fault that the first applicant was not able to get further employment within the 90 days allowed by condition 8107.
The delays on the part of the Department can be regarded as unfortunate, but perhaps not so severe that they amount to unreasonableness in a legal sense.
The applicants, in their written submissions, referred to a number of cases that have previously been decided by the courts. However, none of those cases seem to me to have any bearing on the present matter.
The first applicant noted in oral submissions that, in the notice of intention to cancel dated 31 May 2016, the delegate said at CB4 that:
The nomination lodged in relation to you by Oz Green Homes Pty Ltd on 16 October 2015 was refused on 08 February 2016. To date no other nomination in relation to you has been lodged.
That was not entirely correct. The delegate's decision was dated 14 June 2016, by which time other applications had been lodged. However, the delegate, in conclusion, said at CB53 that:
There is no record on departmental systems to indicate that [the first applicant] had a new 457 nomination application approved for another employer in relation to them within 90 days of ceasing employment with the sponsor.
The first applicant argued that the delegate had changed his view from the original notice of intention to cancel the visa, which talked about a nomination being lodged, to requiring the nomination to be approved.
Clearly, what condition 8107 required was that the first applicant actually have a job, not that an application be lodged or approved. The first applicant needed to actually have been in employment within the 90 days after the cessation of his last employment.
The reinstatement application first came before the court on 3 September 2019. On that occasion, the Minister had only been served a day or two prior to the hearing, so the matter was adjourned to enable the Minster to consider his position. The reinstatement application returned to court on 8 October 2019. On that occasion, the court raised with the parties an issue that emerged from the materials. That issue was as follows.
The Tribunal noted at CB195 that the first applicant’s agent had submitted that a policy update distributed by the Immigration Department to migration agents had stated that:
… ‘cancellation for not complying with condition 8107 will not be considered where a visa holder has ceased employment with their nominated employer but have lodged a new nomination application within 90 days.’
The agent noted that the first applicant in this case had lodged a new nomination application within 90 days of the cessation of his employment with Matangi Enterprise Pty Ltd.
The newsletter distributed by the Department to migration agents containing that advice is set out at CB180 to CB181. It says in a large box with the heading Cancellation of subclass 457 visas:
Agents have recently raised concerns about what they have indicated is an increase in cancellation action taken against subclass 457 visa holders.
457 program management has confirmed with our cancellations team that cancellation for not complying with condition 8107 will not be considered where a visa holder has ceased employment with their nominated employer, but have lodged a new nomination application within 90 days.
…
(emphasis in original)
Upon that matter being raised by the court with the parties, the Minister sought a further adjournment to consider that issue. The matter was adjourned until today to enable that issue to be considered.
The first applicant today drew the court's attention to another case. It is Naqvi & Anor v Minister for Immigration & Anor [2018] FCCA 793. That was a decision made by me in relation to the cancellation of a subclass 457 visa.
In that case, the error identified was that the Tribunal had purported to consider the non-refoulement obligations but had applied the wrong test when considering that issue. The applicant in that case was a citizen of Pakistan who raised certain issues about risks of harm to him if he were to return to Pakistan. The Tribunal considered whether it was likely that he would suffer persecution rather than whether there was a real chance that he would suffer persecution. That was found by me to be a jurisdictional error, and that finding was upheld on appeal by White J in Minister for Immigration and Border Protection v Naqvi [2018] FCA 2075.
However, that case has no bearing on the present matter. The first applicant is not a citizen of Pakistan. He is a citizen of India. The first applicant did not raise any issues relating to refoulement. The Tribunal considered that issue in paragraphs 53 and 54 of its reasons for decision and found that there was little evidence before it that would suggest that there would be any breach of any international obligations. I do not consider that Naqvi has any bearing on the present matter.
The Minister in relation to the newsletter said that the Tribunal is not bound to follow policy. That is correct. The Tribunal itself set out in paragraphs 28 and 29 a clear statement of that principle. Those paragraphs are as follows:
28.The tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.1 Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.2
29.Nevertheless, the tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the tribunal has also taken into account the submissions and evidence it received from the applicant.
1 See Brennan, J. in Re Drake (No.2) (1978-1980) 2 ALD 634
2 See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 (at [55]
The Tribunal, clearly, was aware that it was not bound to follow policy and that it could not go beyond the wording of the legislation where the policy was not consistent with the legislation.
However, the statement in the newsletter is a little different to the usual PAM3 provisions, which, generally, deal with how discretions are to be exercised. The statement in the newsletter is in the nature of a promise that the Department will not cancel a visa where a new nomination is lodged. It may be thought that the statement in the newsletter is too brief in that it does not explain what the situation would be if the new nomination were lodged within the 90 days but had been rejected within the 90 days.
In any event, although the first nomination had been rejected, there was another one on foot when the Tribunal made its decision. The first nomination, which was lodged on 16 October 2015, which was prior to the first applicant ceasing employment, had been refused because Oz Green Homes Pty Ltd’s sponsorship had already expired. A new sponsorship application had been approved, and a new nomination had been lodged, all within the 90 days of the first applicant ceasing employment. That second nomination application was refused on 27 September 2016 on the basis that the position for which the first applicant had been nominated was not a genuine position, but that refusal had been referred to the Tribunal for consideration. On 13 October 2016, a third nomination was lodged in respect of the applicant by Oz Green Homes Pty Ltd. It was awaiting determination when the Tribunal made its decision on 17 October 2016.

The Minister also argued that the Tribunal had, in fact, taken the policy stated in the newsletter into account in paragraph 42 of the Tribunal's reasons for decision. That paragraph is as follows:
I accept that the applicant did not voluntarily cease working with his sponsoring employer. The applicant had an opportunity to rectify the breach by commencing employment with another sponsor that successfully nominated the applicant for a position within 90 days. This was contained in a condition of his visa which stated if the employment ceases it ‘must not exceed 90 consecutive days’. In this case, I accept that the applicant took steps to commence employment with another sponsoring employer. However, as of the day of this decision, the applicant had already [been] without [a] sponsor that successfully nominated the applicant for a position within the business for more than 10 months. I find that the applicant’s failure to commence employment with a new business sponsor that successfully nominated the applicant for a position within the business after 10 months since the original cessation of employment represents a significant breach of condition 8107.
The Tribunal, in that paragraph, noted that the first applicant had taken steps to commence employment with another employer within the 90 days, but noted that the first applicant had been without a successfully nominated position for 10 months. However, the Tribunal, in that paragraph, did not actually grapple with the fact that a statement had been made in a newsletter to migration agents that cancellations would not occur where a new nomination was lodged within 90 days of ceasing employment.
I do not accept that the Tribunal, anywhere in its reasons for decision, indicated that it considered the contents of the newsletter. While I accept that the Tribunal is not bound to follow policy, I consider that an assurance of the type made in that newsletter did require the Tribunal to at least consider it and provide reasons if it were going to depart from it. The Tribunal did not do that in the present case.
Although the Tribunal set out in its reasons for decision the submission that the applicants’ advisor had made about the newsletter, the Tribunal did not demonstrate in any way that it had considered it. It seems to me that this, at the very least, is arguably unreasonable. For that reason, the prospects of success of the substantive application favour reinstatement.
I consider that the explanation provided by the applicants for their non-appearance at the hearing on 5 August 2019 is not particularly compelling. However, in the circumstances of there being an arguable case in the substantive proceeding, I consider that it is appropriate to reinstate the matter.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Associate:

Date: 25 October 2019