Thapaliya v Minister for Immigration
[2018] FCCA 3278
•7 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THAPALIYA v MINISTER FOR IMMIGRATION | [2018] FCCA 3278 |
| Catchwords: MIGRATION – Application for review – where it was asserted that the applicant’s wife failed to notify delegate of change of circumstances – where applicant’s visa was automatically cancelled – decision not amenable for review. |
| Legislation: Migration Act (1958) (Cth), ss.104, 128, 131(1), 140, 476 Migration Regulations1994 (Cth), sch.2 cl.186.311, reg.5.19(3)(d)(i)s |
| Cases cited: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181 Rani v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379 |
| Applicant: | BISHNU THAPALIYA |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER ROTECTION |
| File Number: | BRG 1186 of 2016 |
| Judgment of: | Judge Egan |
| Hearing date: | 7 November 2018 |
| Date of Last Submission: | 7 November 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 7 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Burrow |
| Solicitors for the Applicant: | Chand Lawyers |
| Counsel for the Respondents: | Mr B McGlade |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application for review filed on 21 December 2016 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISANE |
BRG 1186 of 2016
| BISHNU THAPALIYA |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
REASONS FOR JUDGMENT
This is an application brought by a male person named Bishnu Prasad Thapaliya, who was the former husband of one Samitra Sapkota. They were married on 27 April 2008. On 22 July 2014, the said Ms Sapkota applied for an employer nomination (Class EN – subclass 186) visa. Such visa was sought on the basis that Ms Sapkota would work as a cook for a period of at least two years, as is a requirement pursuant to Regulation 5.19(3)(d)(i) of the Migration Regulations1994 (Cth) (“the Regulations”).[1] The applicant applied for the same visa on the basis that he was a member of the same family unit as Ms Sapkota. He did that pursuant to the clause 186.311 criterion to schedule 2 of the Regulations, which relevantly provided:
[1] See Court Book (“CB”) p. 49.
The applicant:
(a) is a member of the family unit of a person (the primary applicant) who holds a subclass 186 visa granted on the basis of satisfying the primary criterion for the grant of the visa; and
(b) made a combined application with the primary applicant.
Information subsequently came to the attention of the Department to the effect that the nominated employer of Ms Sapkota was placed into liquidation on 5 September 2014 (19 days prior to the grant of the visas), and that the employer had ceased operating from that date of liquidation. In those circumstances, the information relevantly constituted a change to Ms Sapkota’s circumstances, requiring her to inform the Minister as soon as practicable of such change pursuant to the provisions of section 104 of the MigrationAct 1958 (Cth) (“the Act”). That section provided that a failure to comply with the provisions of it constituted a ground for the cancellation of a person’s visa.
As at 18 November 2016, Ms Sapkota had not notified the Department of her change of circumstances, and, as a consequence thereof, a delegate of the Minister cancelled her visa on that date pursuant to the provisions of section 128 of the Act, which relevantly provides as follows:
Cancellation of visas of people outside Australia
If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii) it is appropriate to cancel in accordance with this Subdivision; and
(b) the non-citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
The decision record in respect of the cancellation of the visa granted to Ms Sapkota is seen at pages 47–63 inclusive of the Court Book. That cancellation decision was made whilst Ms Sapkota was outside of Australia, and was made without notice. At pages 54 and 55 of the Court Book, the delegate considered harm which might be suffered by third parties (including the applicant) as a result of Ms Sapkota’s visa cancellation. The relevant consideration is recorded in the decision record as follows:
Ms Sapkota’s husband, Mr Thapaliya, holds a visa as a dependant member of Ms Sapkota’s family unit. As a result of Ms Sapkota’s visa being cancelled, I have considered that Mr Thapaliya’s visa will also be consequentially cancelled by operation of law under section 140 of the Migration Act. I have no information before me in relation to Mr Thapaliya’s circumstances in Australia and therefore I am unable to assess the extent of hardship that may be caused to Mr Thapaliya. However, as a result of his visa being cancelled under section 140, Mr Thapaliya may not be permitted to work in Australia following his visa cancellation and may be held in immigration detention until his removal from Australia. I have considered that Mr Thapaliya’s visa would be cancelled by operation of law and therefore I am unable to place any weight on this consideration in Ms Sapkota’s favour.
I have not been made aware if Ms Sapkota and Mr Thapaliya have any children residing with them in Australia and therefore I am not required to consider the Convention on the Rights of the Child (CRC). I am therefore unable to place any weight on this consideration.
On 2 December 2016, Ms Sapkota applied to have the cancellation decision revoked. On 8 December 2016, a delegate of the Minister considered the revocation request, that delegate being different from the person who was the delegate to the Minister who cancelled Ms Sapkota’s visa. The second delegate was not satisfied that any basis existed for revoking the cancellation decision under section 131(1) of the Act. The second delegate refused to revoke the cancellation decision.
On 12 December 2016, the applicant (who had been informed by Ms Sapkota of the cancellation decision) made representations suggesting that the grounds for cancellation which the first delegate relied on did not exist.
On 21 December 2016, the applicant (but not Ms Sapkota) applied for judicial review of the first delegate’s 18 November 2016 cancellation decision pursuant to section 476 of the Act. The application does not relate to, or challenge, the non-revocation decision made by the second delegate. The originating application filed on behalf of the applicant on 21 December 2016 sets out the grounds of the application as follows:
With respect to the decision to cancel the Applicant's former spouse' visa the decision maker:
a. acted in a way that was unreasonable and irrational in particular in circumstances where, without limiting the ground, it was inappropriate to make the decision when the former spouse was out of the country and the former spouse was not given an opportunity to respond;
b. Denied procedural fairness to both the former spouse and the Applicant and took into account irrelevant considerations
2. With respect to the position of the Applicant's visa status the decision maker:
a. Failed to take into relevant considerations being the Applicant's submissions;
b. Failed to consider and apply a request for revocation or consideration of the Applicant's visa status
c. acted in a way that was unreasonable and irrational in particular in failing to consider the submissions and allow an opportunity for the Applicant to be afforded the opportunity to make representations regarding his substantive rights as a visa holder or person with a legitimate expectation of having a right to remain in Australia or be present within a Australia or to make representations as to why he may remain within Australia from within Australia
It can be seen from ground 1 of the applicant’s grounds of application that the applicant challenges the making of the decision in respect of the cancellation of the applicant’s former spouse. However, it is clear that the decision made in respect of the applicant’s former wife’s spouse was a decision directly against her interests, and not against the interests of the applicant. The decision record, on its face, at page 47 of the court book, records that the decision was in respect of Ms Sapkota, and not in respect of the applicant. The applicant, on general principles, has no standing in such case to make application as he has.
In Rani v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379 at 399, Sackville J, when dealing with a consideration of the effect of section 140 of the Act, said as follows:
In my opinion, the structure of the Migration Regulations supports the view that section 140(1) was intended to apply only when a visa holder obtained his or her visa by satisfying a criterion explicitly framed in terms of being “a member of the family unit” of another person whose visa is later cancelled. It may be (although it is not necessary to direct in the present case) that section 140(1) applies even where the criterion is expressed to be one of the primary criteria for a visa (as distinct from being one of the secondary criteria). In other words, section 140(1) may apply to a person who acquired a visa by satisfying a primary criterion expressed specifically in terms of being a “member of the family unit”, of another person whose visa is later cancelled. But I think the better view is that section 140(1) was not intended to effect the automatic cancellation of the visa held by a person who obtained the visa because he or she satisfied the description in any one of the subparagraphs of the definition contained in regulation 1.12 of the Migration Regulations.
The relevant application made by the applicant in this case was for a visa based upon his being a member of the family unit constituted by himself and Ms Sapkota, and therefore section 140(1) applies to him, in the event of Ms Sapkota’s visa being cancelled pursuant to the provisions of section 128 of the Act, as was the case here. Section 140 of the Migration Act provides as follows:
Cancellation of visa results in other cancellation
(1) If a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.
(2) If:
(a) a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas); and
(b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;
the Minister may, without notice to the other person, cancel the other person's visa.
(3) If:
(a) a person's visa (the cancelled visa ) is cancelled under any provision of this Act; and
(b) the person is a parent of another person; and
(c) the other person holds a particular visa (the other visa ), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa;
the other visa is also cancelled.
(4) If:
(a) a visa is cancelled under subsection (1), (2) or (3) because another visa is cancelled; and
(b) the cancellation of the other visa is revoked under section 131, 133F, 137L or 137N;
the cancellation under subsection (1), (2) or (3) is revoked.
Accordingly, two matters flow from the above factual scenario. First, the decision record made by the Department was in respect of Ms Sapkota, and not the applicant, thereby precluding the applicant from seeking to substitute himself as an applicant in the matter. If anyone was entitled to agitate the validity or otherwise of the cancellation of Ms Sapkota’s visa, it was Ms Sapkota, and not the applicant.
That proposition is supported by the Full Court of the Federal Court decision in Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181 at [58], where it was said by Besanko J:
The person who was the subject of the relevant privative clause decision (ss 478(v) and 479(b)) was Konel and not the applicant. By reasons of ss 478 and 479 of the Act, it was not competent for the applicant to make an application for constitutional writs or associated relief or both, or be parties to such an application, in respect of the Tribunal’s decision on Konel’s application for review.
Secondly, the circumstances of the case give rise to the automatic cancellation of the applicant’s visa by operation of section 140(1) of the Act. In circumstances where there is an automatic cancellation of a visa, there is no relevant migration decision amenable for review by the applicant. That there is no migration decision amenable to review prevents the applicant from asserting that in respect of any automatic cancellation of his visa, some person or entity failed to take any relevant consideration into account, or otherwise took irrelevant considerations into account, or otherwise acted in a way which was unreasonable or irrational.
For those reasons, the application for review is without merit. The whole regime relating to the applicant’s having obtained a visa based upon his being a member of a family unit would be thwarted in circumstances where such an applicant was able to continue to press the validity of his visa status in circumstances where the original applicant’s visa, upon which he depended, had been cancelled.
The bridging visa circumstance which the applicant is presently under is not a relevant consideration which ought to be taken into account when determining whether the applicant has any rights able to be the subject of the making of orders pursuant to the application as filed. The application for review is without merit and is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 19 November 2018
2
3