To v Minister for Immigration
[2017] FCCA 1225
•9 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TO & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1225 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal had applied the wrong test, made a finding for which there was no evidence and denied the applicants procedural fairness. |
| Legislation: Migration Act 1958, s.474 Migration Amendment Regulations 2009 (No.5), reg.3, sch.1, item [160] |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Montero v Minister for Immigration & Border Protection (2014) 229 FCR 144 |
| First Applicant: | VIN QUOC TO |
| Second Applicant: | THI THUY LIN NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2689 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 22 May 2017 |
| Date of Last Submission: | 22 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 9 June 2017 |
REPRESENTATION
| Solicitors for the Applicants: | Mr R. Turner of Manning Lawyers |
| Solicitors for the Respondents: | Mr A. Flick of DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2689 of 2014
| VIN QUOC TO |
First Applicant
| THI THUY LIN NGUYEN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicants are citizens of Vietnam who, on 22 June 2009, applied to what is now the Department of Immigration and Border Protection (“Department”) for Temporary Business Entry (Class UC) subclass 457 Business (Long Stay) visas. The first applicant (“Applicant”) was the primary visa applicant on the application, whilst his wife, the second applicant, was included in the application as a member of his family unit.
On 8 October 2012 a delegate of the first respondent (“Minister”) refused the applicants’ application on the basis that the Applicant did not meet cl.457.221 of sch.2 to the Migration Regulations 1994 (“Regulations”) because he had not complied substantially with a condition of his previous visa. The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
RELEVANT LAW
The criteria for the grant of a subclass 457 visa are found in pt.457 of sch.2 to the Regulations. One of the primary criteria which the Applicant had to satisfy at the time a decision was made on his application was cl.457.221. At all material times it provided:
If the applicant is in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.
The last substantive visa held by the Applicant was a subclass 457 visa granted on 15 January 2007 and valid to 10 August 2010. Thereafter, the Applicant held a bridging visa, on the basis of his further visa application the subject of this proceeding. According to the delegate’s letter to the applicant of 8 October 2010, the bridging visa had been granted when the visa application was lodged on 22 June 2009. Both visas were subject to condition 8107.
At the time of the original visa grant in 2007, condition 8107 provided as follows:
The holder must not:
(a)if the visa was granted to enable the holder to be employed in Australia:
(i)cease to be employed by the employer in relation to which the visa was granted;…
Condition 8107 was amended by the Migration Amendment Regulations 2009 (No.5) relevantly to provide as follows:
(3) If the visa is a Subclass 457 (Business (Long Stay)) visa:
(a)the holder must work only:
(i) in the occupation listed in the most recently approved nomination for the holder; and
(ii) for:
(A)the standard business sponsor, former standard business sponsor, party to a labour agreement or former party to a labour agreement (the sponsor) who nominated the holder in the most recently approved nomination;
(B)an associated entity of the sponsor …
That amendments commenced on 14 September 2009 and applied to subclass 457 visas which were in force at that date: sch.1, item [160] and reg.3(5)(a) to the Migration Amendment Regulations 2009 (No.5).
Condition 8107 was further amended by the Migration Amendment Regulations 2010 (No.1) with effect on and from 27 March 2010. However, because that amendment applied to applications made on or after that date or made earlier but still undetermined as that date, it did not apply to the visa which had been granted on 15 January 2007 or to the bridging visa which had been granted on 22 June 2009.
It appears that the Tribunal erroneously applied the 2010 version of the condition but the parties did not raise the issue and the relevant provision is not materially different from the 2009 version.
Finally, cl.457.223(4) of sch.2 requires an applicant for a subclass 457 visa to be the subject of an approved business nomination by an approved sponsor. It is a time of decision criterion.
BACKGROUND
2007 visa
As noted earlier, the last substantive visa held by the Applicant was a subclass 457 visa granted on 15 January 2007 and valid to 10 August 2010. That visa was granted on the basis that the Applicant satisfied cl.457.223(4) and would be employed by Isana Hair Salon as a hairdresser. Relevantly in this regard, on 31 August 2006 the Department approved a nomination of the Applicant by Isana Hair Salon.
The Applicant arrived in Australia on 4 July 2007. He claimed that, after his arrival, he went to Isana Hair Salon but found that the business had closed. Consequently, he started working as a hairdresser for a different employer, Vu Gallery, which later agreed to become his sponsor. According to the Tribunal, two applications were lodged by Vu Gallery in respect of the Applicant in September 2008 and February 2009 but neither was approved. The Applicant claimed that he stopped working for Vu Gallery in April 2009, after the second refusal.
The Applicant claimed that he subsequently found employment with Cyberscape Investment Pty Ltd (“Cyberscape”).
2009 visa application
On 22 June 2009 the Applicant lodged an application for a further subclass 457 visa, which is the application the subject of this proceeding. That application was made on the basis that Cyberscape had nominated the Applicant for employment. An application by Cyberscape for approval as a standard business sponsor was also lodged at the same time but was refused. On 10 September 2009 the visa application was also refused, on the basis that the Applicant did not meet cl.457.223(4) of sch.2 to the Regulations because the application by Cyberscape for sponsorship approval had been rejected.
The Applicant sought a review of the delegate’s decision to refuse him a visa. Cyberscape also applied to the Tribunal for review of the decision to refuse it a standard business sponsor approval.
In the interim, the Applicant’s 2007 visa expired on 11 August 2010 and he remained in Australia on the bridging visa.
On 26 July 2012 the Tribunal set aside the rejection of Cyberscape’s sponsorship approval and substituted a decision to approve the company as a standard business sponsor for a period of three years. Cyberscape’s nomination was subsequently approved on 3 September 2012. In light of Cyberscape’s nomination approval, on 5 September 2012 the Tribunal set aside the delegate’s decision to refuse the applicants’ visa application and remitted the matter to the Department with a direction that cl.457.223(4) was now met.
On 8 October 2012 the 2009 visa application was refused for a second time. On this occasion, the reason for refusal was that the Applicant did not meet cl.457.221 because he had not complied substantially with the condition 8107 work limitation which had applied to his previous subclass 457 visa and subsequent bridging visa. Relevantly, the delegate found that the Applicant had breached condition 8107 when he was employed by Vu Gallery and then by Cyberscape because his approved business sponsor had been Isana Hair Salon and not those other businesses.
Tribunal proceedings
The applicants’ application for review of the delegate’s decision was lodged on 31 October 2012.
The applicants appeared at a hearing before the Tribunal on 6 March 2014. Post-hearing submissions were also provided on 27 March 2014, 2 May 2014, and 23 June 2014.
Tribunal’s decision record
Visa condition
The Tribunal found that the Applicant had held a subclass 457 visa from 15 January 2007 to 13 September 2009 which had been granted so that he could be employed in Australia by Isana Hair Salon and which was subject to condition 8107 as it stood at the time of the visa grant.
The Tribunal found that from 14 September 2009 the Applicant held a subclass 457 visa and then, from 11 August 2010, a bridging visa, both of which were subject to condition 8107 as it stood following the second amendments. As noted earlier this finding appears to be erroneous but no issue was made of it and there was no substantive difference between the 2009 and 2010 versions of the relevant requirement.
Employment history
The Tribunal made the following findings in relation to the Applicant’s employment history following his arrival in Australia on 4 July 2007:
a)Isana Hair Salon was operating when the Applicant arrived in Australia. This conclusion was based on the following matters:
i)the Australian Business Registrar indicated that the ABN for Isana Hair Salon was active between March 2004 and 1 July 2009;
ii)departmental records indicated that monitoring of Isana Hair Salon’s sponsorship obligations was undertaken in May 2009 and finalised as satisfactory;
iii)Isana Hair Salon’s lack of GST registration between April 2002 and February 2008 did not, in the Tribunal’s view, provide significant support for a finding that the business was not trading in July 2007, particularly in circumstances where the business was a sole trader and businesses with a reported turnover of less than $75,000 were not required to register for GST; and
iv)Isana Hair Salon had provided the Applicant with a letter of offer on 28 June 2006. Further, he was sponsored by that business to work in Australia;
b)the Applicant had been employed by Isana Hair Salon for a period of approximately six months between July 2007 and January 2008. The Tribunal noted in this regard that the Applicant had submitted two resumes in respect of the 2009 visa application, both of which cited a six month period of employment with Isana Hair Salon. Although the Applicant claimed at the hearing that he had never worked at that salon, the Tribunal preferred the evidence in the resumes as they had been provided closer to the time in question and the Applicant had not provided a credible explanation of why he would have claimed to have worked for the salon if he had not worked there at all;
c)the Applicant had been employed by Vu Gallery from at least July 2008 (as indicated in his resume) until April 2009; and
d)the Applicant had been employed by Cyberscape from May 2009.
Breach of condition 8107
In light of those conclusions, the Tribunal made the following findings regarding the Applicant’s compliance with condition 8107:
a)the Applicant had complied with condition 8107 between July 2007 and January 2008 when he was employed by Isana Hair Salon as a hairdresser;
b)between January 2008 and 13 September 2009 the Applicant was the holder of a subclass 457 visa subject to condition 8107 as it stood before the 14 September 2009 amendments, but was in breach of condition 8107(a)(i) because he had ceased working for Isana Hair Salon;
c)between 14 September 2009 and 3 September 2012 the Applicant was first the holder of a subclass 457 visa and then from 11 August 2010, the holder of a bridging visa, both of which were subject to condition 8107 as it stood post-amendments [sic]. The Tribunal found that the Applicant was in breach of condition 8107 during this period because he had not worked for Isana Hair Salon or an associated entity, but for Cyberscape; and
d)the Tribunal found that the Applicant had complied with condition 8107 (post-amendments version) from 3 September 2012 when the first Cyberspace nomination was approved.
Did the Applicant comply substantially with condition 8107?
The Tribunal accepted that there were several circumstances which ameliorated the Applicant’s breach of his visa conditions, including the following;
a)the Tribunal accepted that once the Applicant ceased working for Isana Hair Salon (for whatever reason but assuming that he could not continue), there was nothing he could do to comply with the condition that applied to his subclass 457 visa other than to try to secure a new sponsor or seek the cancellation of his visa;
b)the Tribunal accepted that the Applicant made ongoing and repeated efforts to secure a new sponsor after his employment with Isana Hair Salon ceased and had made attempts to comply with his visa conditions after that time; and
c)the Tribunal accepted that the Applicant’s attempts to comply with his visa conditions were hindered by circumstances beyond his control – namely, the decisions to refuse Vu Gallery and Cyberscape’s applications for sponsorship approval and the delay in reviewing Cyberscape’s application (lodged in June 2009) which was ultimately approved (in September 2012).
Despite these matters, the Tribunal was not satisfied that the Applicant had complied substantially with condition 8107, noting that:
a)the purpose of the visa grant was to allow the Applicant to work for Isana Hair Salon in Australia, however, he had worked for that salon for no more than six months;
b)the Applicant was not granted a visa to seek sponsored employment in Australia;
c)the Applicant had been in Australia for seven years. During that period, he was in breach of his visa conditions from January 2008 to September 2012, a period of over four and a half years; and
d)the Applicant gave evidence at the hearing that he understood that he was required to work for his original sponsor and there was no real suggestion that he failed to appreciate that he had been in breach of his visa conditions over the relevant period.
Having found that the Applicant had not complied substantially with the conditions of his last substantive visa and bridging visa, the Tribunal found that the Applicant did not satisfy cl.457.221 of sch.2 to the Regulations. Consequently, it affirmed the decision of the delegate not to grant him a visa.
PROCEEDINGS IN THIS COURT
In their application commencing these proceedings the applicants alleged:
1.The Tribunal applied the wrong test
Particulars
a.The Tribunal found that the Applicant’s breach of the visa condition was significant rather than whether he had complied substantially with the condition.
2.The Tribunal based its decision on a fact which did not exist
Particulars
a.The Tribunal found that the sponsorship of Vu Gallery had not been approved
b.The Sponsorship for Vu Gallery Pty Ltd was approved on 25 June 2011 and the Nomination was approved on 3 December 2013
The Sponsorship Approval Number was 2125541083
The Nomination Approval Number was 1520563423
3.The Tribunal’s decision denied the Applicants’ procedural fairness
Particulars
a.The Tribunal failed to base its evidence on reasonably probative evidence and based its decision on speculation and guesswork
i. [abandoned]
ii. [abandoned]
iii. Flawed and delayed decision making by the Respondent
iv. Delays in decision making by the Tribunal
Ground 1
The applicants referred to the following statements in paras.53 and 59 respectively of the Tribunal’s reasons:
… I consider that the breaches of visa conditions are very significant in the light of the purpose of the visa grant and the duration of the period in which the applicant was in breach of visa conditions. …
…
… in light of other circumstances, and in particular the very lengthy period of time during which the applicant was in breach of the visa conditions … I am not satisfied that the applicant complied substantially with the conditions [sic] 8107 …
They argued that the Tribunal’s conclusion was based on the period of time during which the Applicant had complied with condition 8107, rather than on whether he had complied with the conditions of his visa considered cumulatively.
The Minister relied on the authority of Montero v Minister for Immigration & Border Protection (2014) 229 FCR 144, which I accept is a complete answer to this submission. Dealing with a provision of the Regulations worded similarly to cl.457.221, Flick J held at 149 [27], [28], Allsop CJ agreeing, that non-compliance with a condition which applied to an antecedent visa was conclusive of an applicant’s satisfaction of a clause like cl.457.221. At 149 [28] his Honour expressly rejected an argument similar to the one pressed by the applicants in this case.
The applicants also submitted that, if it were accepted that in fact Vu Gallery’s application to sponsor the Applicant had been approved, then the period during which the Applicant had been in breach of condition 8107 was much shorter than the period on which the Tribunal based its conclusion that his breach had been substantial. However, the Tribunal was not satisfied that Vu Gallery’s application had ever been approved and so its conclusion on the period of time during which the Applicant had been in breach of condition 8107 was not legally erroneous with the consequence that the relevant conclusion drawn from it was open to the Tribunal.
Finally, the way the particular of the first allegation was drawn suggests that the Tribunal had substituted “significant” for “substantially” when considering whether condition 8107 had been satisfied. The passage quoted from para.53 of the Tribunal’s reasons in which the word “significant” appears was preceded by the Tribunal’s paraphrasing of what has been identified in the authorities as matters which may be taken into account when determining whether an applicant has complied substantially with a visa condition. One of those matters is “the significance of the breach, especially by reference to the purposes for which the visa … was granted”. It is plain that the Tribunal was doing no more than turning its mind to matters which would assist it to determine whether the applicant’s compliance with condition 8107 had been substantial or not, rather than applying an incorrect test.
Ground 2
The applicants submitted that Vu Gallery’s sponsorship and nomination of the Applicant had been approved and that as the Tribunal had been in possession of information which demonstrated this, it erred by being unpersuaded that those applications had been approved. In pressing this submission the applicants relied on their solicitor’s affidavit affirmed 16 May 2017 to which was annexed a 2013 letter to the Tribunal in a different matter which recorded that Vu Gallery’s nomination of a person, not the Applicant, had been approved together with a 2011 decision of the Tribunal recording that Vu Gallery was a standard business sponsor at that time in relation to the person referred to in the 2013 letter.
The relevance of the applicants’ evidence on this issue was unclear because it did not indicate that the Applicant had been approved to work for Vu Gallery. The applicants’ 26 March 2014 written submissions to the Tribunal did not take the matter any further. That letter stated elliptically:
On 25 February 2009, Mr To was the subject of a sponsorship and nomination by Vu Gallery Pty Ltd who were finally approved as a Standard Business Sponsor with an approved nomination on [sic]
The Tribunal concluded at para.57 of its reasons:
While the representative also claimed that Vu Gallery’s application for sponsorship approval was approved on review in this tribunal, and that this was relevant to whether the applicant substantially complied with his visa conditions, in circumstances where tribunal records do not appear to support such a claim, I am not included to accept it, without supporting evidence which has not been provided.
In the circumstances, there seems no basis to conclude that the Tribunal’s view was erroneous in any sense.
Ground 3
The particulars of the third allegation which were pursued related to what the Tribunal had said in paras.56 and 57 of its reasons:
… The representative argues that because the sponsorship was ultimately approved on review, this indicates that the original decision by the Department delegate to refuse the sponsorship was faulty, and the applicant should not be disadvantaged by what he suggests was flawed and delayed decision making by the department and delay in the tribunal.
Having considered the representative’s submission, while I accept that the decisions to refuse applicants’ prospective sponsor’s applications was outside his control, as was the delay in the review occurring, I do not accept that the fact that Cyberscape’s [sic] was ultimately approved as a sponsor on review means that the original decision by the Department to refuse them was flawed. As I pointed out to the applicant and his representative at the hearing, the sponsorship criteria are assessed at the time a decision is made on the application. The fact that the applicant company was assessed as having met the criteria by the tribunal on review does not indicate that the applicant met the criteria when they were initially assessed. …
There, the Tribunal was stating that the applicants had not satisfied it that the primary decisions of the delegates were necessarily wrong simply because it had reached different conclusions in the circumstances which obtained when it reviewed the applications. That was not illogical or unreasonable and no more than an implied observation on the evidence before the Tribunal.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 9 June 2017
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