Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 367
•5 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 367
File number(s): MLG 1018 of 2017 Judgment of: JUDGE VASTA Date of judgment: 5 November 2021 Catchwords: MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. Legislation: Migration Act 1958 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 35 Date of last submission/s: 5 November 2021 Date of hearing: 5 November 2021 Place: Brisbane Counsel for the Applicants: The Applicants appearing on their own behalf Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1018 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANDEEP SINGH
First Applicant
VISHAV LOHAN
Second Applicant
SARVJEET KAUR
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
5 NOVEMBER 2021
THE COURT ORDERS:
1.That the application filed on 18 May 2017 be dismissed.
2.That the First and Second Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,400.
3.The name of the first respondent be amended to read: “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(EX TEMPORE)JUDGE VASTA
On 21 April 2017, the Administrative Appeals Tribunal (“the AAT/Tribunal”) affirmed a decision to cancel the subclass 457 visa of Mr Sandeep Singh. There were two dependents upon that visa, Mrs Kow Savjeet and Mr Veshav Lohan. On 18 May 2017, the Applicant asked this Court to review the decision.
The background to this matter is as follows. The Applicant is a citizen of India. He was granted a skilled 457 visa on 4 October 2013. This was because he was going to be employed with the Milez Trading Group Proprietary Limited. The Applicant’s visa was subject to condition 8107 which required that the Applicant not cease work for more than 90 days. The Applicant was working with the Milez Trading Group as a fleet manager. The Milez Trading Group was the subject of a creditor’s petition and the company was in the process of being wound up, with the Federal Court of Australia appointing the liquidator. The Department was notified of this fact by email on 27 May 2016.
On 22 August 2016, the Applicant was issued with the notice of intention to consider cancellation. This was because it was obvious there that the Applicant had not been working in that position for a period of more than 90 days. It turned out that the Applicant had not been working, it would seem, depending on what view one takes, from either September 2015, but certainly by October 2015; therefore by August 2016 he had not been working for that company for between 10 and 11 months.
Having given the Applicant that notice, the Applicant responded by email and requested an extension of time to respond to the notice. On the same day the Department was emailed by someone on behalf of the Applicant to say that the applicant had found a new sponsor who wished to retain him in the same occupation, and requested an extension of five working days by which the Applicant would “lodge a 457 transfer”. There was a nomination application by a company called Gautam Investment Proprietary Limited. The Applicant was named as a nominee employee.
In September 2016, a delegate of the Minister cancelled the Applicant’s visa under s 116(1)(b) of the Migration Act 1958 (Cth) (“the Act’”) on the basis that he had ceased employment for more than 90 days, therefore breaching condition 8107. The delegate found that there was no record of a new nomination approval in respect of the applicant within 90 days of him ceasing employment.
The Applicant asked the Tribunal to review that decision, or, in effect, he was asking for an appeal from that decision. The Tribunal looked at whether, firstly, there was a ground for cancellation having been made out. If that ground had been made out, the question for the Tribunal was whether the visa should be cancelled.
The Tribunal found fairly easily that the ground for cancellation did exist. The Applicant admitted to the Tribunal that he did cease work in October 2015 with Milez Trading Group. He said that even though the company went into liquidation from 16 September 2015 when a liquidator was appointed, that he worked for three or four weeks after the company had closed down. He said that he had not worked for a day in Australia since he ceased that employment until he started working for the new employer in around August/September 2016.
The Tribunal found quite easily on that evidence that the Applicant was in breach of condition 8107, and the Applicant did not dispute this and so, therefore, the ground for cancellation exists. That ground did not require a mandatory cancellation, and the Tribunal then proceeded to consider whether the power to cancel should be exercised.
The Tribunal looked at all of the surrounding circumstances. The Tribunal looked at what had occurred, as I have already indicated, and noted that the Applicant signed the contract with the new employer, Gautam Investments, on 28 August 2016 as an equipment hire manager. That is some six days after he received the notice of intention to consider cancellation of a visa.
The Tribunal noted that apart from breaching condition 8107, the Applicant had met all other conditions of his 457 visa whilst he was employed with the sponsor. The Applicant told the Tribunal he had a bank loan of $12,000.00 and if he had the visa cancelled he would suffer hardship because he would still have to pay that bank loan using different wages that he would earn in India and, with the exchange rate, the extra money that he would have to pay if he were sent back to India, he felt, would be up to $10,000.00 more.
He said that the circumstances in which the ground for cancellation arose were outside his control. He said that his former sponsor had told him that he, the former sponsor, was setting up a new company and would continue to sponsor the Applicant. The Applicant tried to contact that person, but he did not receive any response after that. The Applicant said he made several attempts to secure employment and was ultimately successful finding a position which is the subject of a nomination application. At the time of the Tribunal decision, there had been no decision as to whether that nomination application was successful or not.
The Applicant said that if his visa is cancelled, his wife and child’s visa would also be cancelled as a consequence and they would all have to return to India. The Applicant also spoke about the circumstances of his boss being in Dubai at the time that the liquidator was appointed, and that he did not even know that there was any trouble and continued to work for the business for three or four weeks after the company closed down. He spoke of his new job where he is the plant hire manager, and the Tribunal asked about why it is that he needed to be employed and what skills he brought to the job, but, as I say, the application for nomination had not been decided by the Minister.
The Applicant told the Tribunal that he wanted to work and live in Australia permanently, notwithstanding that this may not be consistent with the purpose of the visa that the applicant had. That visa, as I’ve said during the course of this hearing, is intended to fill a temporary skills shortage. The Applicant indicated he wanted to remain on a temporary visa and then see later if he could stay in Australia permanently.
The Tribunal looked at the degree of hardship that the family may suffer. At that stage the Tribunal noted that the Applicant had given them a copy of the balance of a bank loan. The bank loan appeared to have been taken out in the name of the Applicant in December 2015, and the Applicant did not have employment at that time. The Tribunal was seemingly interested in how it was that he could secure a bank loan if it were that he were not employed, and the Tribunal asked if the Applicant could provide a copy of that loan application, but no such documentation was ever given to the Tribunal.
The liability on that bank loan was in the order of $11,000, but that statement was dated in June 2016 and the Tribunal was looking at the matter in April 2017. The Tribunal was unsure as to what the status of the loan was at that time, and, to this point, the Tribunal said they could not be sure that the loan was still outstanding. The Applicant told them that it was, and he wished to stay here, work and to settle that loan. That loan, he said, was used to buy household furniture and a car.
The Applicant indicated that his child who was, in effect, the third Applicant in his application, had already gone back to India. The Applicant said that if he were to return to India, he felt that it would be hard for him to get a job because he had not lived there, at that time, for about eight years. He said that he wanted to stay in Australia as he wanted to meet his responsibilities.
The Tribunal agreed to postpone its decision in order for the Applicant to provide some further evidence in relation to his present employer’s nomination application. The Tribunal said it would wait until a certain date in February of 2017.
There was some other documentation, but nothing further was given with regard to the application submitted by the employer. In fact, the Applicant’s representative said there had not yet been a decision about that particular matter and asked for a further four weeks extension. The Tribunal agreed to wait until the close of business on 15 March for further evidence and then it would proceed to make the decision on the evidence before it. There was no further information given to the Tribunal. As I say, the decision was made in April 2017. Between 15 March and the decision being made on 21 April, there was still no more material given to the Tribunal.
The Tribunal spoke of the fact that there are no matters that were mandatorily required to be considered, but they still considered what was in the Procedures Advice Manual heading of General Visa Cancellation Powers. The Tribunal looked at whether there was a compelling need for the Applicant to remain in Australia. The Tribunal accepted that the Applicant wanted to stay in Australia to work and to bring his child to Australia. The Tribunal accepted the Applicant had been employed by someone else, and that a nomination application had been made but not yet finalised.
The Tribunal took into account that the Applicant says that he would not be able to secure employment in India, and noted all of the surrounding circumstances. The Tribunal noted, as well, that there had been no more information given about the employer’s nomination, other than it had been made. There was no documentation that outlined what it was that the employer was saying about the position that the employee was going to undertake. To that end, the Tribunal was not satisfied that the Applicant is subject of an approved nomination to work in skilled employment in Australia.
With regard to the Applicant’s concerns about employment in India, the Tribunal again noted that the purpose of the 457 visa was to temporarily address a skills shortage in Australia. It is not meant for permanent employment, and that whether the Applicant would find work in India is not a compelling reason to not cancel the visa. The Applicant’s skill of being a fleet manager in the employment of Milez Trading is not the job that he was doing with the new employer, Gautam, because Gautam already had a fleet manager. The Tribunal described the Applicant’s description of his role with Gautam as “somewhat vague”, and for that reason had concerns as to whether the Applicant was, in fact, employed by his new sponsor in a skilled occupation.
With regard to the bank loan, the Tribunal had the doubts of which I have already spoken. With regard to the family facing serious hardship, the Tribunal noted that it is only the Applicant and his wife. The child has already gone back to India and is residing in India. The Tribunal was not satisfied that a cancellation would result in the child being separated from his parents.
The Tribunal accepted that the Applicant and his family may suffer disappointment if the visa is cancelled because he has expressed a strong desire to remain in Australia, but was not satisfied that the grant of a temporary 457 visa results in ongoing residence in Australia. While the Applicant may have had a preference to remain in Australia, the Tribunal was not satisfied there is a basis for the Applicant to have a reasonable expectation that he would be able to do so.
Whilst it may be that the circumstances in which the cancellation arose were outside the Applicant’s control, the Tribunal noted that this occurred in September 2015, and the Applicant had had more than a year to secure sponsored employment. That was a matter to which the Tribunal said that it gave significant weight.
Having looked at all of those matters, even including the past history the Applicant had with student visas, the Tribunal concluded that the visa should be cancelled and therefore affirmed the decision of the delegate.
The grounds of the application are these, and I will read them verbatim into the record:
1.Jurisdictional Error. Member of Administrative Appeals Tribunal misinterpreted the applicable law or misapplied the law and made jurisdiction error. Member has failed to consider financial hardship which my family will suffer due to visa cancellation. I am currently repaying 2 different loans. I am the only one working in my family and looking after my wife and child. I also wish to settle the 2 loans of approximately $32,000 I took from the bank for our regular expenses.
The problem with that ground is that it would seem that the Applicant is relying on evidence that was not before the Tribunal. The Tribunal had “evidence” that the Applicant had a loan of $12,000 of which the current balance was $11,000. The Applicant claims in this ground that he has two loans of approximately $32,000. The Applicant said that he is the only one working in the family, and he is looking after his wife and child. The evidence before the Tribunal was that the child was back in India, and there was no evidence before the Tribunal that the Applicant was paying money to people in India to support his child. In fact, the Applicant said that the reason that the child went back to India was because he was unemployed.
The Court cannot find a jurisdictional error based on evidence that was not before the Tribunal. The Member cannot have failed to consider something that was not before the Tribunal. In any event, the AAT did consider financial hardship, as I have already detailed, and there has been no jurisdictional error illustrated. That ground fails.
The second ground reads as follows:
Natural Justice, I believe I was not given a fair hearing. My sponsor has left for Overseas and I was not aware that the business has ceased trading. The circumstances in which the ground for cancellation arose, was because my sponsor’s company was liquidated. My colleague’s cancellation of 457 visa with same employer and similar circumstances has been set aside by the Tribunal. AAT case: 1618168.
The Applicant filed a copy of that particular Tribunal decision. It was a decision given on 1 February 2017 that set aside a decision under review and substituted a decision not to cancel that particular person’s subclass 457 visa. That decision was not before the Tribunal, but it is difficult on the face of that decision, in any event, to see what the similarities are, other than a Tribunal differently constituted, had looked at a matter and decided that, under the discretion, the decision to cancel should not have been made. That is a matter for that particular Tribunal based on the facts that were before it. It is not a matter of precedent.
Whilst it is that such an argument may be attractive to many persons, it is not one that can succeed here. That is because a Tribunal must assess the matters that are relevant to it on the evidence that is before it and not on what other Tribunal members have done. I cannot see that this forms the basis of a jurisdictional error. All it does point to, at most, is that there is an inconsistency in the way in which different Tribunals have handled similar factual matters. But because it is not a jurisdictional error, that ground cannot succeed, and it therefore fails.
The Applicant appeared before me today unrepresented. I asked him about those grounds and then invited him to make any submissions he wanted to at all about his application. He said to me, firstly, that when the company was liquidated he and his fellow workers were not notified. He said that the boss told them that he, the boss, would establish a new company, but they never heard anything more. He said that another employee got his visa back. With regard to the bank loan, he thought it was unfair in the manner that the Tribunal looked at the bank loan because the Tribunal was, in effect, saying that he, the Applicant, was either lying to them, or had lied to the bank.
With regard to those matters, much of what the Applicant had said has already been a matter which the Tribunal dealt with. The aspect with regard to the bank loan really did not go to whether the Applicant was lying to the Tribunal or to the bank. The point the Tribunal was getting at was that it was for the Applicant to prove that there would be a hardship and that he had failed to do so. This was because the Tribunal actually asked him to produce the loan application, and the Tribunal gave the Applicant quite a deal of time to do so and the Applicant did not produce any documentation. The Tribunal really came to the conclusion that the Applicant had failed to satisfy the Tribunal that there would be hardship.
As far as the other matters are concerned, again, they go to arguments of a sympathetic nature, but the real point in this matter is: what jurisdictional error was there committed by the Tribunal when it decided that the visa should be cancelled? The Applicant has failed to illustrate any jurisdictional error. The most the Applicant has done is talk of the merits of what was undertaken by the Tribunal, and it is impermissible for this Court to look at the merits of what has been done. The Court is bound to review the matter, not sit as an Appeal Court.
Having found that there has been no jurisdictional error established, I dismiss the application with costs fixed in the sum of $5,400.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 18 January 2022
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