Tayyil and Ors v Minister for Immigration and Anor

[2015] FCCA 2878

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAYYIL & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2878

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – whether delegate properly exercised discretion to cancel visa – incorrect information provided in visa application – whether Tribunal afforded applicant procedural fairness – no jurisdictional error identified – application dismissed.

PRACTICE AND PROCEDURE – Application for adjournment – application refused.

Legislation:

Migration Act 1958 (Cth), ss.101(b), 107, 109, 476

First Applicant: JAFAR TAYYIL

Second Applicant: RASEENA AMBALI

Third Applicant: AFRA JAFAR

Fourth Applicant: AFREENA JAFAR

Fifth Applicant: AFREEDI JAFAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2126 of 2015

Judgment of: Judge Street

Hearing date: 26 October 2015

Date of Last Submission: 26 October 2015

Delivered at: Sydney

Delivered on: 26 October 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The First and Second Applicants pay the costs of the First Respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2126 of 2015

JAFAR TAYYIL

First Applicant

RASEENA AMBALI

Second Applicant

AFRA JAFAR

Third Applicant

AFREENA JAFAR

Fourth Applicant

AFREEDI JAFAR

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 8 July 2015 affirming a decision of the delegate not to grant the applicant a Subclass 865 Employer Nomination Scheme visa.

2. The delegate recognised the advantages of the father’s visa not being cancelled but came to a view that the best interests of the children did not justify a decision not to cancel the visa.  Relevantly the delegate found:

   I find the reasons for not cancelling the visa are:

   - Cancellation is against the best interests of each of the visa holder’s three children.

   - Cancellation will greatly disappoint the visa holder and his spouse.

   - His subsequent behaviour regarding the debt and his identity has been good.

   I find the reasons for cancelling the visa are:

   - The visa holder deliberately gave incorrect information about his debt, his identity, previous stay in Australia, and his employment history in the application for a Subclass 457 temporary visa made from India. If the truth had been told he would not have been granted the visa. His wife and children would not have been granted temporary visas either. None of them would not be in Australia as permanent residents.

   - The non-compliance in respect of the permanent visa and set out in the notice was deliberate. That, and other non-compliance with the same application, was material in that it could have led to the application being refused.

   - Although some of his subsequent behaviour has been good, his behaviour in trying to satisfy me he has been employed as a cook as expected under the temporary and permanent migration programs has been poor and this outweighs his better behaviour.

   - Although cancellation is against the better interests of each child, the effect of cancellation will not be severe.

   I find the reasons for cancelling the visa outweigh the reasons for not cancelling the visa.

   Finally, I will exercise my discretion under section 109 of the Act to cancel the visa.

   Decision

   In view of the findings and assessment above, I have decided to cancel the visa holder’s Employer Nomination (Residence) (Class BW) visa

3. The grounds of the application are as follows:

   1. The Second Respondent made jurisdictional error by constructively failing to conduct the review required by Part 7 of the Migration Act 1958.

   Particulars

   (a) The Second Respondent at [16] referred to the state of mind of the Delegate to engage section 107 of the Migration Act 1958.

   (b) Was not relieved from the duty to consider whether the Applicant had outstanding debts to the Commonwealth by “admission” of the Applicant.

   (c) Was obliged to treat any alleged admission of the Applicant as relevant to by not determinative of whether the Applicant had ever had outstanding debts to the Commonwealth.

   2. In relation to the exercise of discretion under section 109(2), the Second Respondent made a decision which was an unreasonable exercise of the discretion.

   Particulars

   (a) The question for the Second Respondent was whether the Applicant was aware that he had a debt to the Commonwealth not whether he was aware of the outcome of the RRT Application.

   3. The Second Respondent failed to have regard (and hereby made jurisdictional error) to the payment by the Applicant of the amount alleged to be due to the Commonwealth on the promise by the Delegate that if he did so and provided evidence admitting a previous identity, he would be treated sympathetically.

4. In relation to ground 1, the Tribunal had a section headed “Issues for Consideration”, which relevantly provided as follows:

   14. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act.

   15. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

   16. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

5. After para.16 the Tribunal proceeded to consider whether there was non-compliance as described in the s.107 notice and relevantly found:

   19. Regardless of whether he was aware of the debt, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

6. It was in those circumstances the Tribunal turned to the issue of whether the notice should be cancelled. The Tribunal correctly identified that it was required to consider whether the s.107 notice gave rise to non-compliance as described, and the reference to “the necessary state of mind to engage s.107” was, on a fair reading, a reference to the step that the Tribunal was required independently to take to determine whether there was non-compliance as described in the s.107 notice. On a fair reading, the Tribunal made an independent assessment as to whether the notice met the requirements of s.107. The decision of the Tribunal is not to be read with a keen eye for error. Paragraph 16 was a finding by the Tribunal that the requirements of s.107 were met and that finding was clearly open. Accordingly there is no substance in ground 1.

7. It is clear that the Tribunal appreciated that the debt was paid, as identified in para.43, and indeed the Tribunal referred to the substance of the email that had been sent to the applicant dated 2 December 2013 in para.43 as follows:

   43. While the Tribunal acknowledges that the delegate had indicated to the applicant that he was probably going to take a sympathetic view if the applicant responded frankly, paid the debt, helps clear up his identity with other agencies and was satisfied that he has been a cook since his 2008 arrival, the Tribunal is not bound by this statement. Nor is it required to take a sympathetic view for the reasons outlined. Having considered all the material before it, the Tribunal has formed the view that the applicant’s conduct throughout the cancellation process and in respect of his previous visa applications demonstrates a clear failure to approach visa and migration matters honestly. He provided supporting documents that contained inaccurate information, and failed to disclose his previous identity and details of a previous visa refusal during his earlier stay in Australia. When given an opportunity to address an incorrect answer, he then provided a further falsified document which was not signed by the purported writer. (emphasis added)

8. The Tribunal noted that the first applicant did not dispute that he had given an incorrect answer on the application form in respect of the debt, albeit that he said he was unaware of the same. That clearly was an admission which the Tribunal was entitled to take into account in coming to the finding that there had been non-compliance within s.101(b) in the way described in the s.107 notice. Accordingly no jurisdictional error is made out by the content of ground 1.

9. The first applicant contends in relation to ground 2 that the exercise of the discretion was unreasonable, contending that the relevant question was whether the applicant was aware of the debt. Under the statutory regime s.100 of the Migration Act 1958 provides as follows:

   SECTION 100

   Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

10. An incorrect answer under s.100 of the Migration Act 1958 does not require a state of mind by the applicant that he knew it was false.  From the reasons of the Tribunal, it appears that it was not the failure to pay the $1000 that was material to the adverse exercise of the discretion but rather the other conduct of the first applicant, which substantially the first applicant admitted. Relevantly, the Tribunal held:

    29. While there is evidence which supports his claim to have remained with the same employer who sponsored and nominated him as a Cook, the concern addressed by the delegate was based on some information which indicated that he has been undertaking other duties for that employer, as a manager. The applicant maintains that he has at all times worked in the kitchen for the same employer, although at two different properties. The information before the Tribunal that he has been working as a manager for his employer is inconclusive. In any case, as raised with the applicant, it is his subsequent behaviour in relation to the cancellation of his visa, and his failure to fully disclose relevant information on his visa applications, which is of greater concern to the Tribunal than the type of work he has been doing.

    30. In relation to his subsequent behaviour, the applicant presented a letter purportedly signed by Mr Balakrishnan Kottepattu when responding to the Department’s Notice to consider cancelling his visa. The content of the letter relevantly includes a statement that Mr Kottepattu is a professionally qualified chef who worked with the applicant, and that the applicant is an asset to the kitchen at Killara Inn. However, following a check undertaken by the Immigration officer considering the visa cancellation, it became apparent that Mr Kottepattu did not sign the letter. Mr Kottepattu also told the officer that he had never worked at Killara Inn, nor had he written the letter.

    31. The applicant has thus written and signed a reference letter purportedly from another party in support of his claims to have worked as a Cook at Killara Inn. In response to a letter from the Immigration officer regarding concerns arising from the material presented in support of his case, the applicant admitted to having signed the reference from Mr Kottepattu. At the Tribunal hearing, he said that he had spoken to Mr Kottepattu shortly before the response to the Notice was due. He had drafted the letter with Mr Kottepattu’s knowledge and had proceeded to sign the letter and submit it, as there was not enough time to get Mr Kottepattu to sign it.

    32. As to whether Mr Kottepattu had worked in the kitchen at Killara Inn as stated in the letter, the applicant claims that Mr Kottepattu was working on an on call basis at the motel. He thought Mr Kottepattu may not have admitted to it because he was on a disability pension and had a lot of domestic issues. There is nothing before the Tribunal regarding such matters. In any case, whether or not Mr Kottepattu has ever worked for Killara Inn, the applicant has demonstrated that he is prepared to submit a non-genuine document in an attempt to avoid cancellation of his, and his family member’s, Subclass 856 visas. This reflects poorly on the applicant.

    33. The applicant acknowledged that it was a stupid thing to have done, but asserted that it was done with Mr Kottepattu’s consent and only because he was running out of time to respond to the notice. It was submitted that Mr Kottepattu’s actual phone number had been put onto the letter, and that the letter was made with Mr Kottepattu’s permission. While it appears that Mr Kottepattu was aware of the existence of a letter in respect of the applicant based on his conversation with the Immigration officer in December 2013, the Tribunal is not convinced that he agreed to the content of the letter or that the applicant should sign it. It was not presented with any persuasive evidence of this, and it appears to the Tribunal that at least part of the content of the letter is questionable, given that Mr Kottepattu said that he ever worked at Killara Inn. Other than the applicant’s own assertions, nothing has been provided to show that Mr Kottepattu had.

    34. The applicant has provided other documents to support his claim to have been employed as a chef/cook with his employer in the form of letters from customers. However, the Tribunal considers that the applicant’s decision to submit a document that was not written or signed by the purported writer is a matter which supports a view that the visa should be cancelled.

    35. The Tribunal is also aware of other instances of non-compliance by the visa holder which it also considers relevant to the exercise of its discretion. The applicant did not declare on either his Subclass 457 or 856 visa application forms that he had previously been refused a visa and that he had previously used a different identity to enter Australia previously. This different identity is associated with a failed protection visa claim. The applicant had used his father’s name, Thoyengal, during his first stay in Australia from 1999 to 2003, and then his mother’s name, Tayyil, for the 457 and 856 visa applications. The applicant admitted to the use of a different surname when the Immigration officer wrote to him by email in November 2013 regarding information from the New South Wales Roads and Maritime Services that its Facial Recognition Sydney had identified two records as possibly for the same person. The applicant told the Tribunal that he had deliberately done so and not declared the use of a different name in his subsequent visa applications, fearing that the outcome of those applications would be detrimentally affected.

    36. In addition, the applicant had also provided a work reference letter for his Subclass 457 and 856 visa applications which contained incorrect dates of employment. The letter is dated 29 May 2007 and states that the applicant has been working as an Executive Chef for the Green Gates Hotel, located in Kerala, India, from 18 August 1998 till the date of the letter. However, this information is clearly not accurate as the applicant was in Australia from late 1999 until 2003. The applicant had told the Tribunal that prior to arriving in Australia in 1999 he was in Dubai, although he claims that he had worked there after he returned from Australia to India. Even if he had worked at Green Gates Hotel between 2003 and 2007 or 2008, the letter clearly contains incorrect information as to the period of employment.

11. It was not necessary for the Tribunal to determine whether the first applicant did know that he had a debt, and it cannot be said that the exercise of the discretion under s.109 in this case was unreasonable. The adverse findings by the Tribunal were clearly open and cannot be said to lack an evident and intelligible justification. Ground 2 is in substance an impermissible challenge to the adverse finding of fact by the Tribunal. Ground 2 fails to make out any jurisdictional error.

12. In relation to ground 3, it is clear that the Tribunal took into account the fact that the payment had been made, as referred to in para.43, and also took into account the communication from the delegate dated 2 December 2013, which did not in any event amount to a promise.  It is apparent that the Tribunal was alive to that communication and its potentially unfair inducement in relation to the response by the first applicant.  It was open to the Tribunal to find that the first applicant provided supporting documents that contained inaccurate information, and then when the applicant was given the opportunity to address the incorrect answer, he provided a further falsified document. That falsified document was not a consequence of the potential unfair inducement by the delegate.

13. Whilst the process adopted by the delegate in the email dated 2 December 2013 was unsatisfactory, insofar as the last paragraph is concerned, this court does not exercise jurisdiction in respect of a denial of procedural fairness by the delegate.  For the applicants to obtain relief in this Court, it is necessary to make out a denial of procedural fairness by the Tribunal. 

14. It is clear that the Tribunal took into account the unsatisfactory process that had occurred before the delegate. I am satisfied that there is no jurisdictional error by the Tribunal as alleged in ground 3.

15. The first applicant was sent the statutory invitation to appear before the Tribunal, by letter dated 12 May 2015.  The applicant completed a response to the hearing invitation.  The first applicant appeared before the Tribunal on 4 June to give evidence, present arguments, and represent it before the Tribunal. 

16. The application fails to identify any jurisdictional error. This is not a Court exercising jurisdiction to make fresh findings of fact and is confined to the issue of whether there was a jurisdictional error or denial of procedural fairness. The first applicant candidly acknowledged that the steps he had taken in the past, which have not been truthful, were to advance the interests of his children, and that his children still had real educational interests that would be advanced by the continuation of his visa. That is not a satisfactory explanation for dishonesty.  

17. This Court is not in a position to make fresh findings of fact on those discretionary considerations. Whilst the candid nature of the first applicant’s concessions before this Court should be acknowledged, they do not assist in identifying any jurisdictional error. 

18. The first applicant sought an adjournment of the proceedings, indicating that he wanted more time to find a lawyer.  The first applicant indicated he had been taking steps to do so for about the last two months.  The first applicant indicated that there were issues with costs as well as trying to find someone who understood his situation.  The application for an adjournment was opposed.  This is a case where the Registrar made order on 3 September 2015, providing an opportunity to file an amended application, affidavit and submissions, and no such documents were filed.  I note that the application was originally filed on 30 July 2015. In the above circumstances an adjournment would be of no utility and would only unnecessarily increase the costs of the parties and utilise limited Court time. It was for these reasons the adjournment was refused.

19. The application is dismissed. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 29 October 2015