Su v Minister for Immigration

[2016] FCCA 83

FEDERAL CIRCUIT COURT OF AUSTRALIA

SU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 83

Catchwords:
MIGRATION – Subclass 857 (Regional Sponsored Migration Scheme) (Class BW) visa – whether applicant commenced nominated employment within 6 months of grant of visa – where tribunal held applicant had not commenced nominated employment on a full-time basis – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.137Q(1), 137(T), 474(2)

Migration Regulations 1994, reg.2.50AA

Minister for Immigration and Citizenship v SZMDS (2010) 84 ALJR 369

First Applicant: HA SU

Second Applicant: LU LI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 494 of 2015

Judgment of: Judge Jarrett

Hearing date: 21 October 2015

Date of Last Submission: 21 October 2015

Delivered at: Brisbane

Delivered on: 19 January 2016

REPRESENTATION

Counsel for the Applicants: Mr Thackeray

Solicitors for the Applicants: VSTAR Lawyers and Consultants Pty Ltd

Counsel for the First Respondent: Mr Richardson

Solicitors for the First Respondent: Clayton Utz

The second respondent entered a submitting appearance.

ORDERS

1. The amended application filed on 30 September, 2015 be dismissed.

2. The first applicant pay the first respondent’s costs of and incidental to the application, including reserved costs, if any, fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 494 of 2015

HA SU

First Applicant

LU LI
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the second respondent made on 8 May, 2015 to affirm a decision of a delegate of the first respondent to cancel the first applicant’s subclass 857 (Regional Sponsored Migration Scheme) visa.

2. The first respondent opposes the application and the second respondent enters a submitting appearance.

3. Both parties have filed written submissions to which I have paid regard.

4. Before proceeding further, something should be said about the position of the second applicant. As the first respondent’s written submission point out, because the decision record of the tribunal named the second applicant as a party to the tribunal’s review, he may be a party to the application before this Court. But the tribunal only had jurisdiction to review a decision that related to the first applicant. There was no decision in relation to the second applicant. His visa was dependent upon the existence of the first applicant’s visa. Upon that visa being cancelled, the second applicant’s visa was cancelled by force of s.137T of the Migration Act 1958. The outcome of this judicial review application (and any later decision by the tribunal, if so ordered), will affect the second applicant, as the first respondent puts it, “in a self-executing way”.

Background

1. The applicants are citizens of the People’s Republic of China.

2. On 2 March, 2011 the applicant applied to the first respondent’s department for a subclass 857 (Regional Sponsored Migration Scheme) (Class BW) visa.  At the time of the visa application, the applicant claimed that she resided in Rosewood, Queensland.

3. With the visa application the applicant filed an employer nomination.  She needed to demonstrate that she had employment should her visa been granted.  The employer nomination form detailed that the nominating employer was Brisbane Import Export Wholesale Pty Ltd, of 6 John St, Rosewood, Queensland. 

4. The employer nomination form provided that the applicant’s position was “Import/Export Manager”, that the applicant would be employed at Rosewood on a full-time basis and for a total annual remuneration package (including mandatory superannuation benefits) of AUD$52,000.00.

5. On 5 August, 2011 the first respondent’s department sent correspondence to the applicant notifying her of the grant of the visa. The second applicant was also granted a visa.

6. On 21 May, 2013 the first respondent’s department sent by registered mail to the applicant, a letter giving notice of an intention to consider cancellation of her visa under s.137Q of the Act. 

7. Section 137Q(1) of the Act provides:

   137Q  Cancellation of regional sponsored employment visas

   Employment does not commence

   (1)  The Minister may cancel a regional sponsored employment visa held by a person if:

   (a)  the Minister is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations; and

   (b)  the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that period.

8. The period prescribed for the purposes of s.137Q(1)(a) of the Act is prescribed by reg.2.50AA of the Migration Regulations 1994. The relevant period is six months after the grant of the visa. Thus, in the present case, the applicant must have commenced the nominated employment within a period of six months commencing on 5 August, 2011.

9. The letter from the first respondent’s department about the possible cancellation of the applicant’s visa asserted that it had come to the attention of the Department that there may be grounds for the cancellation of the applicant’s visa under s.137Q.  The grounds detailed in the letter referred to “credible information that [the applicant] had never worked for your sponsor” and that “There is no evidence that [the applicant had] commenced employment with ... [her employer].”

10. On 6 June, 2013 the applicant wrote a letter to the first respondent’s department to “provide evidence documents as attached, demonstrating that I have commenced and continue to work according to the original employment contract and visa requirement.”

11. Between about June, 2013 and June, 2014 the applicant and the first respondent’s department exchanged correspondence regarding the provision of further information to determine whether the applicant had commenced employment with the employer nominated in the employer nomination form.

12. On 24 July, 2013 the company that purported to be the applicant’s employer, was wound up by the Supreme Court of Victoria.  On 27 May, 2014 the first respondent’s department obtained information from the liquidators that included a director’s report, bank statements, records from the Company’s accountant, a copy of an insolvent trading claim and a circular to creditors.

13. On 21 July, 2014 the delegate notified the applicant by email that her visa was cancelled that day.  Consequentially, the second applicant’s visa was also cancelled.

14. On 29 July, 2014 the applicant applied for review of the delegate’s decision by a migration review tribunal.  She had a representative who was a registered migration agent for the purposes of that review.

15. On 23 October, 2014 the applicant was invited to appear before the tribunal on 5 December, 2014 to give evidence and present arguments relating to the issues arising in relation to the decision under review.  On 5 December, 2014 the tribunal conducted that hearing.  The applicant attended, as did her representative.

16. On 19 December, 2014, the tribunal sent a letter to the applicant (by her migration agent) inviting her to comment on, or respond to, certain information.

17. On 16 January, 2015 the applicant’s migration agent responded to the tribunal’s invitation on the applicant’s behalf.  The letter had a number of attached documents.

18. On 8 May, 2015 the tribunal published its decision and reasons.

19. The tribunal determined that the issue for resolution was that raised by s.137Q(1) of the Act, namely whether the tribunal was satisfied that the applicant had not commenced the employment referred to in the employer nomination within the period prescribed by the Migration Regulations 1994.

20. The tribunal had before it the first respondent’s department’s file relating to the applicant. The tribunal also had regard to the material referred to in the first respondent’s delegate’s decision and other material available to it from a range of sources.

21. During the hearing, the tribunal asked the applicant about how she found the job of “Import/Export manager” with the company that nominated her.  She said that she had started working in the position with the company in January, 2011.  The tribunal explored the work that the applicant claimed that she undertook for her employer.  She told the tribunal about when she opened and closed the store each day, who would serve customers and where the store was located in Rosewood.  The tribunal asked the applicant about the location of the business premises and to give the names of the two streets that the Rosewood store was on (it was on a corner) but the applicant could not remember.

22. The tribunal also received evidence from the applicant about the different ways that she was paid by her employer and raised issues with her about her employer’s bank statements, which indicated that employer had not paid the applicant.

23. The tribunal put to the applicant information that the tribunal had which indicated that the shop was rarely open after July, 2011, other information collected by department officers during two site visits, the various residences that the applicant lived in at Rosewood and the use of her personal email address for business.

24. The tribunal gave consideration to the bank statements provided by the applicant for the period 1 April, 2011 to 28 February, 2013 showing the applicant’s card transactions and salary payments.

25. Thereafter, the tribunal considered whether the applicant commenced the employment referred to in the employer nomination form within six months from the grant of her visa on 5 August, 2011.  The tribunal concluded that the applicant was not employed on a full time basis in the nominated position of Import/Export manager.  The tribunal was satisfied that the applicant did not commence the employment referred to in the employer nomination form any time in the six month period commencing on 5 August, 2011.  The tribunal found that s.137Q(l)(a) of the Act was met.  

26. Moreover, the tribunal was not satisfied that the applicant had made a genuine effort to commence the employment within the six month period commencing on 5 August, 2011.  The tribunal found that s.137Q(l)(b) of the Act was met.

27. The tribunal then moved to consider whether to exercise the discretion to cancel the applicant’s visa.  The tribunal found that cancelling the visa was the correct and preferable decision and affirmed the decision of the delegate to cancel the applicant’s visa.

The grounds of review

1. The applicant’s grounds of review are contained in an amended application for review filed on 30 September, 2015.  There are four expressed grounds.  I will deal with each ground in turn.

Ground 1

1. This ground is in the following terms:

   1. The Second Respondent considered irrelevant material in coming to its decision giving rise to jurisdictional error.

   PARTICULARS

   A. As stated at paragraph 24 of its decision record, the Second Respondent relied on the First Respondent’s claims in relation to a site visit to the Applicant’s place of work on 8 November 2011 during which it consulted an employee of a nearby business who verified specific details including the exact date the business opened. The Applicant was on leave during this site visit and as such the First Respondent’s claims are one sided and irrelevant. It is unlikely for someone who does not work in the Applicant’s place of employment to know or remember the exact date when the business actually opened.

   B. As at paragraph 23 of the decision record, the Second Respondent placed excessive weight on the fact that the business did not generate sufficient income to meet its liabilities and as such disregarded the Applicant’s ATO notice of assessments as evidence of her pay. The employer’s poor financial position does not mean that the Applicant could not have been paid. The Applicant had stated that she was paid in cash most of the time.

2. The gravamen of this ground appears to be the submission that the tribunal took into account an irrelevant consideration because it was wrong to prefer certain evidence before it over other evidence more favourable to the applicant’s case that was before it.

3. On its face, this ground invites impermissible merits review of the tribunal’s decision.  The applicant argues that it does not.

4. The applicant claimed that she had commenced employment with her employer in January, 2011 from the shop that she had identified at Rosewood.  However, as a result of information received from members of the community (described in the reasons as a “dob-in”), the first respondent’s department commenced an investigation into the employer sponsor that had nominated the applicant for employment.

5. The first respondent’s delegate had relied upon that, and other information, to conclude that the applicant had not met s.137Q(1) of the Act.  The applicant gave to the tribunal a copy of the first respondent’s delegate’s decision for the purposes of the tribunal’s review.

6. The tribunal referred extensively to the information that had been provided by community members and by departmental officers who had conducted two site visits to the premises in Rosewood and others purportedly operated by the applicant’s employer sponsor.

7. After the tribunal’s hearing, the tribunal wrote to the applicant.  The tribunal refers to that letter at paragraph 24 of its reasons.  The applicant refers to that paragraph in particular A of this ground.  Relevantly, the tribunal recorded:

   24.    On 19 December 2014 the Tribunal wrote to the applicants inviting them to comment or respond to the following information:

   In August 2011 the Department of Immigration and Border Protection (the Department) was contacted by the police. The police advised that little activity had been observed on the premises at shop 4 18-20 John Street Rosewood since it opened six months ago.

   The Department received information stating that Brisbane Import Export Wholesale Pty Ltd. (the Business) in Rosewood is rarely open and, when it is open, it is only for a couple of hours. The information stated that the police are watching the Business.

   During a site visit from officers of the Department on 8 November 2011 an employee of a John Street business told the officers that:

   ·   The Business was opened on 8 March 2011 with some furniture for sale.

   ·   There has only been one person in the shop since.

   ·   The shop closed in July 2011 and no one has been seen in the Business since that date.

   ·   There are computer desks and furniture inside the shop.

   ·   The shop was always closed and padlocked from the enclosed wire fence.

   In March 2012 the Department received information that:

   ·   Mr Guang Fu Yin and Ms Lisa Wang asked for a $100,000 payment for visa sponsorship; and

   ·   signed employment contracts for a nominated position did not reflect a person’s actual working arrangements of being a causal employee earning $10 per hour plus commission.

   In May 2012 the Department received anonymous information that the Rosewood office of the Business does not actively operate.

   In May 2013 the Department received information that the Business set up a fake office in regional Queensland to use the 857 regional employer sponsored visa program.

   If the Tribunal finds that you were never employed in the position referred to in the nomination, that you did not commence employment within the prescribed period and that you did not make a genuine effort to commence that employment then your visa may be cancelled. The decision to cancel your visa is a discretionary one.

8. The applicant, by her representative responded to that information.  The tribunal set out the representative’s response at length in its reasons for decision.

9. The response also included copies of the applicant’s bank statement for the period 1 April, 2011 to 28 February, 2013.  The tribunal undertook a thorough analysis of those bank statements.

10. The tribunal did not conclude that the applicant had not worked for her sponsoring employer.  The tribunal:

    a)was of the view that, from time to time, the applicant did go to the Rosewood shop to work until the end of 2012 (paragraph 37 of the tribunal’s reasons);

    b)thought that the applicant’s bank statements showing irregular direct credits from the employer were consistent with that finding. (paragraph 37 of the tribunal’s reasons);

    c)accepted that there was some evidence to support a finding that the applicant was involved in the clerical or administrative tasks of ordering and organising the shipping of goods from China to Australia (paragraph 41 of the tribunal’s reasons);

    d)thought that such a finding was consistent with the statement from one of the employer’s suppliers that the applicant was the employer’s main contact person and was responsible for negotiating orders with them, following up on the manufacturing of goods and organising the customs declaration of containers (paragraph 41 of the tribunal’s reasons);

    e)however, based on the evidence before it, was not satisfied that the applicant undertook such work on a regular basis or from the Rosewood shop (paragraph 41 of the tribunal’s reasons);

    f)found that the applicant did undertake some clerical or administrative tasks of ordering and organising the shipping of goods from China to Australia on an occasional basis (paragraph 42 of the tribunal’s reasons);

    g)found that the Rosewood shop was not open on a regular basis during normal business hours and, when the applicant was working in Rosewood during 2011 and 2012, she was in the shop by herself most of the time (paragraph 42 of the tribunal’s reasons);

    h)found that when the Rosewood shop was open the applicant was responsible for its management – including opening the shop, serving customers and closing the shop (paragraph 42 of the tribunal’s reasons).

11. However, the tribunal did not accept that the applicant worked in the Rosewood shop on a full time basis. The tribunal was of the view that the Rosewood shop was not open on a regular basis during normal business hours.  In that respect, the tribunal said:

    35.    …The Tribunal prefers the evidence of the police that, in August 2011, there had been little activity observed at the Rosewood shop since it opened six months ago. That information was congruent with the ‘dob-in’ - that the Rosewood shop was being watched by the police, that it was rarely open and, when it is open, it is only for a  couple of hours – and the information obtained when Department officers visited the site on 8 November 2011 and 26 September 2012.

12. Further, the tribunal said:

    36.    The Tribunal does not accept that the applicant lived in Rosewood from March 2011 – July 2013. The applicant could not provide an accurate description of her claimed last Rosewood residence or name both streets of the Rosewood shop’s corner location. The Tribunal does   not accept that a person working at a corner location for more than two years would not know the name of both streets. Likewise the Tribunal does not accept that the applicant made a mistake and described the John Street residence in Rosewood instead of her last residence. The information provided after the hearing did not indicate the number of bathrooms or bedrooms the John Street residence had.

    37.    The finding that the applicant did not live in Rosewood from March 2011 – July 2013 is consistent with the applicant’s bank statements and letters from the Rosewood Uniting Church and Ms Gaffney. The bank statements indicate that the applicant withdrew money or made purchases in and around the Rosewood area on 34 days during a period of 700 days and, of 23 bank deposits over the same period, 4 were made in and around the Rosewood area. There are no transactions in and around Rosewood after 2012. The letters from the Rosewood Uniting Church and Ms Gaffney indicate that the applicant was in Rosewood during 2011 and 2012. The Tribunal is of the view that, from time to time, the applicant did go to the Rosewood shop to work until the end of 2012. The applicant’s bank statements showing irregular direct credits from the Company are consistent with that finding.

1. The tribunal concluded:

   42.    …That means, and the Tribunal so finds, that the applicant was not employed on a full time basis in the nominated position of Import/Export Manager.

   43.    The Tribunal is satisfied the applicant did not commence the employment referred to in the relevant employer nomination any time in the 6 month period commencing on 5 August  2011. The Tribunal finds s.137Q(1)(a) of the Act is met. The Tribunal has also considered whether the applicant has made a genuine effort to commence the employment within the period. When the Tribunal raised with the applicant concerns as to whether she undertook the employment as claimed, the applicant maintains that she did commence the employment. For the reasons set out above, the Tribunal is not satisfied that the applicant commenced the employment and is therefore not satisfied the applicant has made a genuine effort to commence that employment within the 6 month period commencing on 5 August 2011. The Tribunal finds s.137Q(1)(b) is met. The Tribunal therefore finds that there are grounds for cancellation under s.137Q(1) of the Act.

2. The tribunal carried out an assessment of the evidence before it.  It weighed the evidence and preferred some of the evidence to other parts of the evidence.  It gave some evidence no weight such as the ATO assessments specified in particular B to this ground. The tribunal was required to assess the weight that it thought it should give to various parts of the evidence.  The tribunal explained why it did not give the applicant’s ATO notice of assessments any weight.

3. In short, the tribunal did what it was required to do in carrying out the review. That the tribunal arrived at conclusions with which the applicant does not agree is unfortunate, but the facts found by the tribunal were not illogical or irrational.  The findings made by the tribunal were informed by evidence.   The conclusions reached by the tribunal were not unreasonable in the sense that would lead to judicial review of the tribunal’s decision.  

4. This ground does not reveal any jurisdictional error.  Rather it reveals an impermissible attempt to review the tribunal’s factual determination.

Ground 2

1. This ground is in the following terms:

   2. The Second Respondent was unreasonable in determining that the Applicant did not work at her place of employment as a result of not remembering the street adjoining to her place of work.

   PARTICULARS

   A. As at paragraph 13 and 36 of its decision record, the Second Respondent placed significant weight on the fact that the Applicant could not remember the name of the other street where her place of work was. It is unreasonable to conclude that the Applicant did not work at the location on a full-time time basis due to the fact that the Applicant could not remember the name of the other street adjoining to her place of work. The Applicant only paid attention to the street where she worked, the Applicant had no need to remember details of their streets.

2. Again, on its face, this ground seeks impermissible merits review.

3. This ground, and its supporting particular, are based upon a misapprehension of the tribunal’s reasons.  The tribunal did not conclude that the applicant did not work at the Rosewood location on a full-time time basis “due to the fact that the applicant could not remember the name of the other street adjoining to her place of work”. 

4. As the first respondent points out, at paragraph [36] of the tribunal’s reasons for decision, the tribunal concluded that it did not accept that the applicant lived in Rosewood from March, 2011 – July, 2013.  Part of the evidence relied upon by the tribunal to support that finding was the applicant’s inability to provide the name of one of the streets of the Rosewood shop corner.  There was no error in the tribunal using that evidence to help inform its finding about that matter.

5. The tribunal reached the conclusion that the applicant had not commenced to work full-time as an Import/Export Manager for her nominating employer on the basis of the matters set out at paragraphs 41 – 43 of the tribunal’s reasons.  The inability of the applicant to give the tribunal the name of one of the streets upon which the business premises was situated does not appear to have featured expressly in the tribunal’s determination of that matter.

6. In any event, even if the tribunal did take the inability of the applicant to recall the street name into account for the purposes of reaching its conclusion about the commencement of her full-time work as an Import/Export Manager, there would be no error in the tribunal so doing.  It was plainly not the only reason, as the applicant argues, that the tribunal reached that conclusion.  It is a matter which might be logically probative on the issue that the tribunal had to determine.

7. I accept the first respondent’s submission that for jurisdictional error to arise on the basis of illogicality or unreasonableness, the tribunal’s decision must be shown to be “one at which no rational or logical decision maker could arrive on the same evidence”: Minister for Immigration and Citizenship v SZMDS (2010) 84 ALJR 369 at [130]. “[A] decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”: SZMDS at [131].

8. On the applicant’s case, the preferred conclusion is that “the [applicant] only paid attention to the street where she worked, the [applicant] had no need to remember details of their streets.” (see the amended application at page 4).  But that there is another conclusion that might have been open does not demonstrate that the tribunal has fallen into jurisdictional error.

9. This ground of review has no merit.  It seeks to cavil with the findings of fact of the tribunal in an impermissible way.

Ground 3

1. This ground is in the following terms:

   3.  The Second Respondent failed to consider relevant material in coming to its decision giving rise to jurisdictional error.

   PARTICULARS

   A. As stated at paragraph 25 of the decision record, the Second Respondent failed to consider and give any weight to evidence provided from a shop owner adjacent to the Applicant’s place of work, who verified that the Applicant worked at the business in 2011 and 2012. Instead the Second Respondent stated it preferred the evidence provided by the police who had stated there was little activity at the Rosewood Office. The Applicant’s occupation was that of an Import and Export Manager and as such it would not be possible for one to fully determine the Applicant was at her place of work or not.

   B. As at paragraph 37, the Second Respondent stated that the letters from the Rosewood Uniting Church were consistent with the Applicant not living in Rosewood. The letters from the Church supported the fact that the Applicant lived and worked in Rosewood. The Second Respondent has failed to consider this evidence which is relevant in determining whether or not the Applicant lived and worked in Rosewood.

2. This ground, too, appears as an impermissible attempt to cavil with the tribunal’s findings of fact.

3. Contrary to the assertion contained within particular A, the tribunal did not fail to consider evidence from a shop owner adjacent to the applicant’s place of work.  That evidence was in the form of statutory declaration in the following terms:

   I have got to know Hua Su since she started managing Brisbane Import Export Pty Ltd Business in 2011-2012 at Rosewood. I own the Takeaway shop next door and in that time we became quite good friends often discussing culture and business plans and family.  I found Hua very polite, friendly and always willing to help.

4. The tribunal referred to that evidence in paragraph 31, 35, 36 and 37 of the tribunal’s reasons.  The evidence was of limited value and in any event, was not inconsistent with either the police material which the tribunal also accepted, or the conclusion reached by the tribunal.

5. As to particular B, I have set out above the paragraph in which the relevant discussion of the letter from the Uniting Church in Rosewood appears.  In paragraph 37 of its reasons, the tribunal discussed its finding that the applicant did not live in Rosewood from March 2011 – July 2013.  The tribunal expressed its view that its finding on that matter was consistent with the letters from the Rosewood Uniting Church.  Those letters suggested that the applicant was a member of the congregation “while she was living in Rosewood during 2011 and 2012”.  The consistency that caught the eye of the tribunal was plainly that which existed between its finding that the applicant did not live in Rosewood from March, 2011 – July, 2013 (as the applicant had asserted) and the assertion in the letter that she lived in Rosewood in 2011 and 2012 (not 2013).

6. Neither of these matters reveals an error in the tribunal’s fact finding or reasoning process.  Others may have come to a different view of the facts than that at which the tribunal arrived, but that is not the test.  The tribunal’s reasons do not reveal any jurisdictional error by reason of this ground.

Ground 4

1. This ground is in the following terms:

   3. The Second Respondent asked itself the wrong question in applying, on the evidence, s137Q(1) as the basis upon which to cancelled the applicants subclass 857 (Regional Sponsorship Migration Scheme) visa.

   PARTICULARS

   A. The Applicant says the Second Respondent asked itself the wrong question in cancelling the visa on the basis that the Applicant did not commence employment with the nominated employer and did not make any genuine effort to do so.

   B. This finding was made on the basis of evidence supplied (inter alia) from the department through a local business owner that the Applicant had not been at the office since 13 February 2012. This evidence is in direct conflict with the finding that the Applicant had ever (never) commenced employment nor made a genuine attempt to do so.

   C. On that basis (inter alia) the Applicant contends the Second Respondent has asked itself the wrong question.

2. This ground is nothing more than a reiteration of the earlier grounds of review, particularly ground 1.  Further, it repeats the misapprehension to which I referred earlier in relation to ground 1, namely that the tribunal had made a finding that the applicant had never worked for her sponsor employer.  The tribunal made no such finding.  Rather the tribunal found that she was not employed on a full time basis in the nominated position of Import/Export Manager and had not commenced to be so employed within the six months of the grant of her visa.

3. Moreover, the finding by the tribunal that the applicant had not commenced full-time employment in the position of Import/Export manager with her nominating employer was not reached on the basis of a single piece of evidence from a local business owner that the applicant had not been at the office since 13 February 2012.  It was made on the basis of a number of considerations explained by the tribunal in the reasons for its decision. 

4. Additionally, there was no inconsistency between the evidence and the local business owner as suggested in particular B of this ground because the tribunal did not find that the Applicant had never commenced employment nor made a genuine attempt to do so.  The tribunal found that the applicant had in fact worked at the nominating employer’s business premises in Rosewood.  But to avoid the conclusion that the applicant had not met s.137Q(2) of the Act, the tribunal needed to be satisfied that she had, within six months of the grant of her visa, commenced employment on a full time basis in the nominated position of Import/Export Manager.  The tribunal found that it could not be so satisfied.

5. There is, in my view, no merit in this ground of review.

Other matters

1. The applicant’s written submissions do not address in terms the grounds of review.  They are expansive and discursive.  They do not address the question of jurisdictional error, but rather seek to demonstrate why the tribunal was in error to take the views that it did about the facts of the application before it. 

2. That is to say, on their face, they invite this Court to engage in a review of the fact finding undertaken by the tribunal.  That is not something that this Court should, or can, do.

3. The applicant suggests that some of the tribunal’s fact finding was illogical.  In particular, the applicant suggests that the tribunal chose only to refer to evidence that “was supportive of its case theory that the sponsor was not a legitimate business and therefore the applicant could not have commenced the nominated employment”.

4. The applicant argues that the tribunal was concerned with the reliability of:

   a)The employment contract and job description;

   b)Australian Tax Office records;

   c)Payslips and;

   d)Bank statements.

5. The applicant argues:

   13. The legitimacy of these documents was called into question when the department formed the view that the applicant’s bank account did not reflect the company’s records commensurate with what she had been paid.

   14.The applicant stated that, on occasion, she was paid in cash, and she maintains that this, of itself, is not fatal; that such a fact should not outweigh the body of evidence in support of the applicant’s position.7

   15.All the applicant was concerned with at that time was being paid for work that she had performed. The business practices of the sponsor was not something she had knowledge of, and as such, it was of little concern to her.

   16.It was the applicant’s subjective belief that she was going to work each day legitimately employed by the nominated regional employer approved under the relevant visa conditions.

   17.The applicant’s position is that it is illogical for the respondent not to accept the legitimacy of the evidence contained in [12] on the one hand, then on the other, accept the evidence of the real estate confirming that the sponsor had been continuing to service the rental repayments on a three year lease entered into on 8 April 2011. 

6. However, the tribunal gave coherent reasons for discounting the reliability of various documents relied upon by the applicant to support her claim.  Dealing with each of the categories of documents in turn:

   a)the tribunal did not call into question the contract and job description upon which the applicant elide.  The tribunal pointed out that it had information that contracts of employment and job descriptions had been used by the nominating employer in other cases but the employment in those cases was fictitious.  However, it made no findings about that in  respect of the applicant.

   b)As to the ATO documents, what the tribunal said was:

   33.    The applicant provided to the Department ATO notice of assessments for the year ending 2012 and 2013 indicating that she earned $35,536 and $43,433 respectively as evidence of her working at the Company. She also provided the PAYE payment summary for the year ending 2012 and 2013 indicating that she received gross payments of $35,130 and $48,548. The Tribunal accepts that the Company provided the applicant with PAYE payment summaries that were submitted to the ATO and, once submitted, the ATO issued notice of assessments. However the Tribunal does not accept that the applicant’s ATO notice of assessments or PAYE payment summaries are evidence that the Company paid the applicant that amount of money. On the applicant’s own evidence, her payslips from the Company were inaccurate because of computer problems and the information in the PAYE payment summaries provided to the Tribunal are not consistent with the corresponding ATO notice of assessments. In the delegate’s decision it states that the liquidators informed the Department that the Director of the Company did not keep books or records and never generated sufficient income to pay its rent, power bills or other liabilities. Given the Company did not keep books or records and did not generate sufficient income to meet its liabilities the Tribunal puts no weight on ATO notice of assessments generated on the basis of documents prepared by the Company as evidence of the applicant being paid.

   (my emphasis)

   c)The reasons why the tribunal gave not weight to the ATO documents and the applicant’s payslips were well explained by the tribunal.  It was an approach that was clearly open to it for the reasons it explained; and

   d)contrary to the applicant’s assertions, the tribunal did not question the bank statements relied upon by the applicant, but analysed those statements so as to understand, or attempt to understand, the way in which the applicant received her income from her nominating employer.

7. The applicant contends that the tribunal failed to consider relevant facts.  In making that submission, the applicant argues:

   25.    Of significance in the respondent’s findings was oral evidence supplied by: the “credible” Rosewood informant and the real estate agent.

   The informant:

   26.    Concern was originally brought to the attention of the respondent in around 2011-12 through information supplied by a credible informant. This person related to the department the following observations:

   A. That the sponsors office was rarely, if ever open, and that it was his belief that the sponsor was involved in fraudulent activities and that this activity extended to illegal regional visa sponsorship arrangements.

   B. That these illegal activities involved migration agents and council members of Ipswich City Council.

   C. That the applicant was never paid by the sponsor.

   D. That the informant conceded that it was the informant’s observation that after February 2012 the applicant had left the office and not come back.

   27.    The last point is key with respect to the applicant’s contentions that the MRT did not carefully consider relevant information.

   28.    The applicant maintains that on the one hand, in its analysis the respondent finds unequivocally that the applicant never commenced employment and never made a genuine effort to do so. Then on the other hand, on the strength of its credible informant, the applicant had at least been present at work, seemingly making a genuine effort to do so, up until 13 February 2012; some 12 months after the commencement of her employment under the employment contract.

   29.    It was clear that the MRT must have had some regard to this evidence given that, in the conclusion of its decision, it accepted that the applicant had been working for the company for about 18 months until the end of 2012.

   30.    Therefore on the strength of the evidence upon which the respondent substantively relied, the applicant must have been employed, by the sponsor, in Rosewood for at least 12 months.

8. Again, the applicant’s submissions fail to engage with precisely what it was that the tribunal decided.  The tribunal did not find that the applicant never worked for her nominating employer.  The tribunal was satisfied that the applicant had worked, from time to time, for her nominating employer.  However, the tribunal was not satisfied that the applicant’s work for her nominating employer was carried out on a full-time basis or that it was in the position of an Import/Export manager.

9. Finally, the applicant seeks to engage with the tribunal’s decision that the applicant had not made a genuine attempt to commence the required employment within the requisite time period.  But the applicant’s submissions reveal that this is nothing more than an attempt to engage with the merits of the tribunal’s factual determinations:

   Analysis of the evidence regarding ties to Rosewood:

   37.    In its analysis of whether there was a genuine effort in commencing employment, the applicant says greater consideration should have been afforded to evidence of the applicant’s ties to Rosewood.

   38.    The respondent had very little evidence before it which could properly establish that the applicant was living anywhere other than in Rosewood.

   39.    The respondent seemed to consider that by the applicant not knowing the name of the street that ran adjacent to the premise address, that the inference should be drawn that the applicant had an insufficient tie to Rosewood.

   40.    The premise address was Shop 4, 18-20 John St, Rosewood. From a business perspective there would be no reason to routinely recall any other street name when dealing with stakeholders.

   41.    From a personal perspective, the applicant stated it was a small street of which she never had cause to traverse. It could properly be argued that if someone had no reason to use a street it is not implausible that they would never turn their mind to what the street is named.

   42.    The respondent also had regard to transactions that took place outside of Rosewood as being useful evidence in order to draw this inference.

   43.    The applicant says that this was evidence drawn and preferred in the absence of due consideration to the following:

   A. Evidence of the applicant’s involvement with the local Church and that its members considered her a valued member of the community.

   B. That the applicant had been closely involved in charity events in the area, raising $1400 for the Rosewood Community Centre on one occasion.

   C. That Cr David Pahlke from Ipswich City Council had praised her in being instrumental in bringing Chinese Dragon to Rosewood.

   D. That the respondent had evidence before it in the form of a newspaper article that the sponsor company had been a good contributor to the Rosewood community.

   E. That she was engaged with Cabana Aged Care facility in performing volunteer care work.

   F. Evidence from the business owner next door that the applicant had been working in the business full time and;

   G. Evidence of transactions taking place in Rosewood.

   Genuine Effort:

   44.    If the court accepts the respondent’s position that the nominated employment did not lawfully commence, then the applicant maintains that given the significant body of evidence outlined in these submissions, the respondent should have considered, but did not, that the court could find that the applicant made a genuine effort to commence employment.

1. To the extent that the applicant by these submissions seeks to argue that the tribunal did not consider whether the applicant did not make a genuine attempt to commence the nominated employment, the submission must be rejected.  It was always the applicant’s case that she had commenced and continued in the nominated employment.  Nonetheless, the tribunal turned its mind to whether the applicant had made a genuine attempt to commence the nominated employment.  At [43]  the tribunal said:

   43.    The Tribunal is satisfied the applicant did not commence the employment referred to in the relevant employer nomination any time in the 6 month period commencing on 5 August  2011. The Tribunal finds s.137Q(1)(a) of the Act is met. The Tribunal has also considered whether the applicant has made a genuine effort to commence the employment within the period. When the Tribunal raised with the applicant concerns as to whether she undertook the employment as claimed, the applicant maintains that she did commence the employment. For the reasons set out above, the Tribunal is not satisfied that the applicant commenced the employment and is therefore not satisfied the applicant has made a genuine effort to commence that employment within the 6 month period commencing on 5 August 2011. The Tribunal finds s.137Q(1)(b) is met. The Tribunal therefore finds that there are grounds for cancellation under s.137Q(1) of the Act.

Conclusion

1. No jurisdictional error is established by the applicant’s grounds of review or submissions. The tribunal’s decision is a privative clause decision for the purposes of s.474(2) of the Act and is not reviewable under s.476 of the Act in this Court.

2. The amended application must be dismissed with costs.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  19 January 2016