Trivedi v Minister for Immigration - [2016] FCCA 2454

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRIVEDI v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2454

Catchwords:
MIGRATION – Application for Subclass 187 Regional Sponsored Migration Scheme visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to consider relevant material when exercising its power under s.137Q of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.137Q, 430

Cases cited:

Tuitaalili v Minister of Immigration & Citizenship (2012) 126 ALD 48; [2012] FCAFC 24

Applicant:

DUSHYANTKUMAR YOGENDRAKUMAR TRIVEDI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 563 of 2016

Judgment of:

Judge Smith

Hearing date:

2 September 2016

Date of Last Submission:

2 September 2016

Delivered at:

Sydney

Delivered on:

2 September 2016

REPRESENTATION

Counsel for the Applicant:

Mr R. Nair

Solicitors for the Respondents:

Ms P. Blackadder, Sparke Helmore

ORDERS

The applicant has leave to file an amended application within 24 hours.
The application be dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 563 of 2016

DUSHYANTKUMAR YOGENDRAKUMAR TRIVEDI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

This is an application for review of a decision of the Administrative Appeals Tribunal made on 23 February 2016. That decision was to affirm a decision of a delegate of the Minister to cancel the applicant’s Subclass 187 Regional Sponsored Migration Scheme Visa. The applicant claims that the Tribunal, in considering the question of the discretion of whether to cancel the visa, failed to take into account the claim made by him that if his visa were cancelled, one of the difficulties that he might face was the breakdown of his marriage given that he was married to a woman of different ethnicity.

Background

In order to understand that ground and its resolution, it is necessary to have regard to some of the factual background. The applicant was granted a Regional Employer Nomination (Class RN) Regional Sponsored Migration Scheme Subclass 187 visa on 17 September 2013. He was sponsored for the purpose of that visa by a company called Graffity (Aust) Pty Ltd (“Graffity”) in Grafton. Section 137Q of the Migration Act 1958 (Cth) provides for a power to cancel such a visa in two relevant circumstances.
First, if 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 the person has not satisfied the Minister that he or she has made a genuine effort to commence that employment within that period and secondly, if the Minister is satisfied that the person commenced the employment, but terminated within a period of two years, starting on the date the person commenced the employment.
It appears that on 22 December 2014, the applicant submitted documents to the citizenship section of the Department of Immigration, which confirmed that he had not commenced employment with Graffity. Those documents showed that he was, in fact, working for Hungry Jacks in Sydney at the time his visa was granted and that he continued to work at Hungry Jacks in Sydney after the grant of his visa. In light of that information, a notice of intention to cancel was sent by an officer of the Department to the applicant on 9 September 2015.
In response to that notice, the applicant sent to the Department a statutory declaration dated 24 September 2015. Amongst the things addressed in that statutory declaration was the potential degree of hardship which may be caused to him and any family members if the visa was cancelled. I note that that is a consideration referred to in the guidelines prepared for the purposes of consideration of cancellation by the Department in the Procedures Advice Manual 3 (“PAM 3”).
Amongst the matters raised by the applicant in respect of that issue, was the following:
My wife is a national of Vietnam and I am a national of India. If we both cannot live in Australia, we would have great difficulties in residing in India or Vietnam and our marriage might face breakdown.
On 19 November 2015, a delegate of the Minister made a decision to cancel the applicant’s visa. The delegate found that the ground for the enlivening of the cancellation power existed and then turned to consider whether or not to exercise that power. In dealing with the issues that arose, she dealt expressly with the passage in the statutory declaration of 24 September 2015 set out above. In that, she said:
[The applicant’s wife] b 14/10/1991, the visa holder’s spouse is currently in Australia as the holder of a Subclass 573 Student visa valid until 31 March 2017. [The applicant’s wife] is from Vietnam, and it is not known whether [the applicant’s wife] would travel to India with her husband should his visa be cancelled. However, it would be reasonable to assume that she would be following him to India should she be allowed entry and stay there. It would also be reasonable to assume that should she move to India she would have the support of her husband and his family to adjust to life in India. Should she decide to return to Vietnam, she would not face undue hardship readjusting to life back in Vietnam a country she is very familiar with and where she would have the support of her family.
The delegate referred to the possibility of the applicant returning to India.
The applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision. By letter dated 18 December 2015, the Tribunal invited the applicant to attend a hearing which was to be conducted on 13 January 2016. By email dated 5 January 2016, the applicant’s agent sent a number of documents to the Tribunal for the purposes of review, including an undated document described as a personal statement.
In that statement the applicant addressed the finding made by the delegate in respect of the difficulties that might be faced by the applicant and his wife in light of any cancellation and said:
Even immigration officer know it is very hardship for me about the financial, how can we payback those amount. I do not accept immigration office opinion about my wife solution. We were struggling a lot to be together about both side families. Immigration officer said: “she could go back India or Vietnam with me”. To us, it is very hard to settle at India or Vietnam because of many factors we have to face including family problems, culture, language. Or SHE or I will feel lonely there. Furthermore, in both countries are not many people speak English, it would have more difficulties in residing in India and Vietnam and our marriage face to breakdown. Her family do not allow her to live in India. Moreover, India is not multicultural country so she could live like in Australia.
I and my wife don’t want to face breakdown about our love. She does not want to live without me and I could not live without her. Now I and my wife everyday mantle suffer, all our plan has stopped since we got this news.
(Errors in original)
The hearing was conducted on 13 January 2016. I will return to what took place at that hearing in due course. The Tribunal handed down its decision on 23 February 2016. In its reasons for decision, the Tribunal first set out its reasons as to why it was satisfied that the ground of cancellation existed. There is no issue in these proceedings concerning those reasons and I do not need to set them out. The Tribunal then turned to consider the exercise of its discretion and in the first place, referred to the PAM 3, before turning to a number of the matters referred to in those guidelines.
One of those, as mentioned already, was the degree of hardship that may be caused (financial, psychological, emotional or other hardship). At [25] of its reasons the Tribunal stated:
…
Degree of hardship that may be caused (financial, psychological, emotional or other hardship
The applicant has married a Vietnamese student studying in Australia since the grant of his subclass 187 visa, and has purchased a home in Sydney, taking out in the process a substantial mortgage. He told the Tribunal that the cancellation of his visa would cause him financial hardship in that he would have to sell his house and pay off his mortgage. He also contended that there would be great difficulty in his wife moving with him to India, or him moving with his wife to Vietnam, as one or the other of them would lack social and family support in a country with less cultural diversity than that which exists in Australia.
The applicant also pointed out that he has been promoted to assistant manager at the Hungry Jacks store he works at in Sydney, and has established strong community and social ties in this country. The Tribunal accepts that each of these factors does indeed constitute hardship for the applicant. However, it does not regard that level of hardship as being sufficient to outweigh the considerations favouring the cancellation of his visa. There is no apparent reason why the applicant cannot recover most or all of the investment he has made in his house in Sydney. Both he and his wife already have experience of living in an unfamiliar culture, and in whichever country they might move to there appears to be family structures to support the couple, even if there are immediate language barriers for one of them. In addition the Tribunal does not regard any difficulty occasioned to the Hungry Jacks store in Sydney as a significant reason not to affirm cancellation of the visa.
(Emphasis in original)
The Tribunal then concluded that, considering the circumstances as a whole, the visa should be cancelled and so affirmed the decision of the delegate to cancel the applicant’s visa.

Consideration

The ground in the amended application is that the Tribunal failed to have regard to, or to consider, material that was of central importance to the exercise of its discretion.
That material or matter was the aspect of the applicant’s statements that his marriage might break down as a result of any obligation to leave Australia. There is no question about two issues: namely, whether the written statements in which that claim was made before the Tribunal and secondly, whether the Tribunal was aware of those statements. Both of those matters are clear from the transcript of the Tribunal’s hearing. For instance, at T3.25[1] of the transcript, the Tribunal refers to a statement which had come in recently, which I infer is a reference to what is described as the personal statement accompanying the email of 5 January 2016.
[1] Transcript of Tribunal hearing page 3, line 25.
This reference is also made in the transcript at T4.35 and T42.8-10. The Tribunal was clearly also aware of the statutory declaration. It refers to that statutory declaration, albeit by reference to a slightly different date, at transcript pages 13, 19, 20 and 25.
The second thing that is clear is that the Tribunal does not expressly mention the possibility of breakdown of the applicant’s marriage in its reasons for decision. The question is whether that fact, as well as all of the other material before the Court, indicates that the Tribunal simply failed to grapple with that claim.
The Minister submits two things in response to this claim. First, that the findings by the Tribunal did deal with the issues raised in the statutory declaration and the personal statement, and secondly, that the claim was, in fact, not one that was required to be dealt with by the Tribunal simply because it was not raised by the applicant at the hearing.
In this respect, the Minister’s submission has some support in the authority of the Full Court of the Federal Court in Tuitaalili v Minister of Immigration & Citizenship (2012) 126 ALD 48; [2012] FCAFC 24. At [36], the Court said:
… the conduct of the parties is relevant to determining the “the case actually raised by the material or evidence”. Despite the inclusion of a document referring to some matter or other, a party may not actually put a case relating to that matter by reason of the party’s conduct. If so, there can be no obligation to accept or reject material relating to the case not actually raised.
The Minister relies on that argument in light of the fact that, at the hearing before the Tribunal, when the matter of personal difficulties that might arise on cancellation were raised, the applicant did not refer to the possibility that his marriage might break down.
The difficulty is that, in my view, what the applicant did say at the hearing which was directly related to the social difficulties that might be experienced by the applicant and his wife upon return to India or to Vietnam were, in fact, a part of the claim concerning the potential breakdown of the marriage.
In my view, because of the way in which the personal statement was framed by reference to the findings by the delegate which was, the potential breakdown of the marriage, it was a matter that the Tribunal had to grapple with at some level.
However, in my view, the Tribunal did grapple with that issue. What is important to understand is that, seen as a whole, the applicant’s claims as they were set out in the personal statement in the statutory declaration of 24 September 2015 were, critically, that there were grave personal difficulties that would be faced by the applicant and his wife upon departure from Australia and return either to Vietnam or to India. These included, as noted in the personal statement, culture, language and loneliness. These were matters, which were referred to in the personal statement.
However, the Tribunal dealt with those overarching problems and so thereby dealt with the possibility that the applicant’s marriage might break down. Critically, in the second paragraph of the Tribunal’s reasons which are set out at [12] above, the Tribunal explained its reasons for finding that the level of hardship that might be experienced by the applicant and his wife was not sufficient to outweigh the considerations favouring the cancellation of the visa.
One of those reasons was that there appeared to be family structures to support the couple. This is similar to the finding made by the delegate. In my view, it constitutes a rejection of the applicant’s claim, firstly, that he and his wife would not have family support, but also that there would be such difficulties that the relationship would break down. Important in this is the reference by the Tribunal to “the couple”.
Given the fact that the Tribunal was clearly aware of the statements made in both the statutory declaration and the personal statement, had indeed questioned the applicant at the hearing about those matters, the fact that the Tribunal expressly dealt with the broad issues that arose from the particular parts of the statements relied upon by the applicant today, and, thirdly, referred expressly to the family structures that would support “the couple”, all signify that the Tribunal was well aware of the claim concerning the potential breakdown of the marriage and intended by its findings to deal conclusively with that possibility.

Conclusion

In light of that fact, the Tribunal did not fail to take into account some matter that it was required to take into account. It properly reviewed the decision of the delegate by having regard to all of the material put forward in support of the claims by the applicant and thereby fulfilled its obligation under the Act to review the delegate’s decision.
For those reasons, there is no jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 26 September 2016