Visuvanathan v Minister for Immigration
[2019] FCCA 3062
•23 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VISUVANATHAN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3062 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a business (457) visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 |
| First Applicant: | CHANDRASEKARAN VISUVANATHAN |
| Second Applicant: | MEGARUBINE SEKAR |
| Third Applicant: | KAVINITHA CHANDRASEKARAN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 529 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr J Lambe of HWL Ebsworth |
INTERLOCUTORY ORDERS
The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Pursuant to rule.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 529 of 2019
| CHANDRASEKARAN VISUVANATHAN |
First Applicant
| MEGARUBINE SEKAR |
Second Applicant
| KAVINITHA CHANDRASEKARAN |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 February 2019. The Tribunal affirmed a decision of a delegate of the Minister (Minister) not to grant the first applicant, Mr Visuvanathan, a subclass 457 Business (Long Stay) visa. The Tribunal found that it had no jurisdiction with respect to the other applicants, on the basis that their status flowed necessarily from the status of Mr Visuvanathan.[1]
[1] See [3] of the Tribunal’s reasons at Court Book (CB) 268
All three applicants, who are a husband, his wife, and their infant daughter, are parties to the present proceeding before this Court, and all three attended today’s show cause hearing. Background facts in this matter are otherwise set out in the Minister’s outline of submissions, filed on 14 October 2019.
Mr Visuvanathan was granted a subclass 457 visa on 26 February 2015, which was renewed for four years on 20 July 2016 (457 visa).[2] The visa was granted to the Mr Visuvanathan for the nominated occupation of "Cafe or Restaurant Manager". Mr Visuvanathan was the subject of an approved nomination for that occupation by his employer, Samosa King Australia Pty Ltd (Samosa King).[3]
[2] CB 1
[3] CB 3
On 3 April 2017, Samosa King applied, via its registered migration agent, to nominate Mr Visuvanathan for a subclass 186 visa.[4] That application does not appear to have progressed.
[4] CB 9
On 7 September 2017, Samosa King wrote to the Minister’s Department to advise it that Mr Visuvanathan ceased employment with Samosa King on 7 March 2017.[5]
[5] CB 15
On 23 January 2018, the Minister’s Department issued Mr Visuvanathan by email with a Notice of Intention to Consider Cancellation (NOICC) of his 457 visa.[6] The NOICC drew attention to the Minister's discretion under s.116(1)(b) of the Migration Act 1958 (Cth) (Migration Act) to cancel a visa if its holder has not complied with a condition of the visa. The NOICC informed Mr Visuvanathan that it appeared he had not complied with [3] of visa condition 8107.[7] Sub-paragraph (b) of that paragraph requires the visa holder to not cease employment for a period longer than 90 consecutive days. The NOICC advised that it appeared that Mr Visuvanathan had ceased employment with Samosa King since 7 March 2017.[8] The NOICC also invited Mr Visuvanathan, in accordance with s.119(1)(b) of the Migration Act, to show within five days.[9]
a)why the ground for cancellation does not exist; and
b)why the 457 visa should not be cancelled:.
[6] CB 17
[7] CB 17
[8] CB 19
[9] CB 20
On 27 February 2018, Mr Visuvanathan responded to the NOICC.[10] Mr Visuvanathan stated that he and Samosa King had a long standing dispute in relation to non-payment of his wages and that was the reason he had not been working. He acknowledged that he had travelled to India in April 2017 and was required to stay longer than expected due to illness. Mr Visuvanathan claimed that as late as 15 December 2017, Samosa King had given him an "assurance" about his work. This meant that he had not taken up a different offer of employment from Haven Function Centre & Restaurant (Haven).[11] In support of these claims, Mr Visuvanathan provided notices of assessment from the Australian Taxation Office, demonstrating that he had been paid well below his contractual salary for the 2015 and 2016 financial years.[12] He also provided a conditional offer letter from Haven,[13] evidence of Samosa King's application to nominate him for a subclass 186 visa in April 2017[14] and a travel itinerary/airline tickets.[15]
[10] CB 27
[11] CB 28-29
[12] CB 30-31, 38-49
[13] CB 32-33
[14] CB 34-37
[15] CB 50-55
On 7 March 2018, the Minister's delegate cancelled the 457 visa and notified Mr Visuvanathan of the cancellation by email.[16] The delegate found that Mr Visuvanathan had not complied with condition 8107(3)(b) and that, in all the circumstances, the discretion to cancel the visa should be exercised.[17]
[16] CB 57
[17] CB 63-71
Tribunal proceeding
On 10 March 2018, the applicants applied for review of the delegate's decision by the Tribunal. They provided the following supporting material along with their review application:
a)the delegate's decision;[18]
b)the material provided to the delegate;[19] and
c)evidence of a complaint made by Mr Visuvanathan to the Fair Work Ombudsman.[20]
[18] CB 76-91
[19] CB 96-109, 112-116
[20] CB 110-111
The Tribunal wrote to the applicants on 12 October 2018, inviting them to comment or respond to information by 26 October 2018.[21] The invitation to comment noted Mr Visuvanathan’s apparent non-compliance with condition 8107(3)(b) and his apparent failure to recommence employment with Samosa King or obtain a different approved nomination.
[21] CB 124
On 2 November 2018, Mr Visuvanathan provided material in response to the Tribunal's invitation to comment. He provided a statutory declaration dated 2 November 2018 in which he explained his wages dispute with Samosa King and also Samosa King's apparent application to nominate him for a subclass 186 visa.[22]
[22] CB 151-153
The applicants were invited to attend a hearing by email from the Tribunal on 30 December 2018.[23] They attended that hearing on 23 January 2019.[24]
[23] CB 208
[24] CB 214
On 31 January 2019, Mr Visuvanathan provided some further material evidencing an offer of employment from Limbaj Pty Ltd (Limbaj).[25] In a further statutory declaration, Mr Visuvanathan clarified that Limbaj had applied for but failed to secure a nomination of him.[26] This was confirmed in a statutory declaration of the director of Limbaj, Mr Nghir Thaker, dated 31 January 2019.[27]
[25] CB 222, 232
[26] CB 228-230
[27] CB 238
Mr Visuvanathan also claimed in his statutory declaration that he did not agitate his wages dispute with Samosa King because he was worried about being fired.[28] He said that the primary reason for him not continuing to work at Samosa King was his continuing search for different employment. Mr Visuvanathan asked the Tribunal to take into account the interests of his daughter, the third applicant, in making its decision.
[28] CB 228
On 7 February 2019, the Tribunal affirmed the delegate's decision to cancel Mr Visuvanathan’s visa and notified the applicants of the same. The Tribunal found that Mr Visuvanathan left employment in July 2017 and has not returned to work for the sponsor. The Tribunal was thus satisfied at [42] that Mr Visuvanathan had not complied with condition 8107(3)(b).
The balance of the Tribunal's reasons are devoted to a consideration of various factors going to the exercise of the discretion in s.116(1) of the Migration Act. The Tribunal made the following relevant findings:
a)Mr Visuvanathan's failure to work for more than 90 consecutive days was at least in part attributable to his sponsor's non-payment of wages and superannuation;[29]
b)Mr Visuvanathan failed to take available steps to resolve the issue with the sponsor and otherwise failed to mitigate his circumstance in any meaningful way either by finding suitable alternative sponsorship and employment or seeking advice and assistance;[30]
c)Mr Visuvanathan's contention that he did not wish to return to India due to difficulties obtaining employment there was not persuasive in light of the purpose of the visa programme;[31]
d)there is no reasonable prospect of Mr Visuvanathan obtaining further employment in the near future in his nominated occupation, there being no current lodged or approved nomination for a new 482 visa in place;[32]
e)although Mr Visuvanathan had encountered difficulties with his sponsor relating to non-payment of wages,[33] Mr Visuvanathan had failed to mitigate his circumstance in any meaningful way or take steps to comply with condition 8107(3)(b);[34]
f)returning to India would not cause any danger to the third applicant (a child).[35]
[29] [46], [54]
[30] [46], [52], [54]
[31] [48]
[32] [50]
[33] see [46]
[34] [52], [54]
[35] [62]
For all these reasons, the Tribunal decided that the decision to cancel the 457 visa should be affirmed.
The present proceedings
These proceedings began with a show cause application, filed on 6 March 2019. The applicants continue to rely upon that application. There are 15 numbered grounds in it:
1. I am the applicant in this matter.
2. I have been declined by AAT, which I am of the view that decision is erroneous and insufficient AAT and DIBP have failed to consider my case in accordance with Natural Justice and Procedural Fairness
3. AAT has failed to serve the documents in proper manner
4. AAT and DIBP have failed to do correspondences incorrectly and insufficiently
5. The Tribunal denied the applicant the right the representation to assist the applicant in presenting my case properly and adequately
6. The applicant was not aware of the way in which the Migration Review Tribunal processes applications nor was she in a position to properly present the facts on which she relied
7. The Tribunal failed to take into consideration some important procedural errors made by the department in assessing the applicant application
8. In this respect, the Tribunal should have accepted the Applicant case and allowed the Applicant with such representation in order to properly presented the Applicant's case but hence was denied by the Tribunal
9. The Tribunal denied the applicant procedural fairness and natural justice in not giving me the opportunity to properly consider my legal position, given my limitation in the legal system
10.The Tribunal failed to determine the applicant's application for review according to the law, in taking a view of the migration act and regulations. That was unnecessarily limited and constructed and which fitted the tribunal member's personal view rather than a comprehensive view of the relevant law
11. The Tribunal Member therefore regarded the Applicant's as being no different to any other Applicant who lodged an invalid application and this constituted a failure to afford the Applicant procedural fairness
12. The Tribunal Member therefore failed to afford the Applicant procedural fairness by taking a personally subjective view of the Applicant's actual circumstances
13. Had the Tribunal given proper consideration to the facts, instead on merely noting and dismissing it without proper consideration, the Tribunal should have come to a different view of the Applicant's case for review. I applied for a Temporary Business Entry (Class UC)
14. I believe that I would be eligible to be granted for a Temporary Business Entry (Class UC) visa application.
15. I respectfully submit that AAT has failed in considering natural justice and procedural fairness, and further has not given thorough consideration of my latest Business Nomination Approval.
The application is supported by an affidavit filed with it, which repeats the grounds of review. I received that affidavit as a submission.
I have before me as evidence the court book filed on 23 May 2019.
I invited oral submissions from Mr Visuvanathan this afternoon. He told me that he was taken by surprise by the NOICC, and he was not previously aware of the letter written by his former employer notifying the Minister’s Department that he, Mr Visuvanathan no longer worked for the employer.[36] That letter is dated 7 September 2017, and asserts that Mr Visuvanathan stopped working with the employer on and from 7 March 2017. Mr Visuvanathan’s basic complaint is that the letter falsely states the position of his employment, and that the cancellation therefore begins with a false factual premise. He maintains that he remained employed with his sponsor until the time of his visa cancellation, and that during that period he was attempting to deal with his employer over underpayment of his wages. There is evidence that Mr Visuvanathan approached the Fair Work Ombudsman at one point, but unfortunately, that was not followed up.
[36] CB 15
A difficulty with the 457 category visa programme has been the risk that employees brought to Australia under the programme may be exploited by unscrupulous employers. It is possible that this is an example of such a circumstance. As I put to Mr Visuvanathan, it is up to him to follow up with the Fair Work Ombudsman, the underpayment of his wages so that that can be rectified if, indeed, there has been an underpayment.
The Minister’s solicitor pointed out that the Tribunal did not accept at face value the notification received from the employer. Rather, the Tribunal had regard to all of the circumstances of the case in determining that Mr Visuvanathan had ceased employment with his sponsor by the time he returned from a visit to India in July 2017.[37] Mr Visuvanathan was not able to articulate any other legal issues concerning the Tribunal decision.
[37] CB 273 at [37]
Mr Visuvanathan’s wife, the second applicant, chose not to make any submissions. Although numerous grounds of review have been advanced, the legal propositions that can be divined from them are limited. The Minister’s submissions do that and I agree with those submissions.
Grounds 1 and 14 do not assert error. Grounds 2 and 4 asserts errors by the "AAT" and "DIBP". To the extent that those ground seek review of the delegate's decision, they cannot succeed. That decision is a primary decision and as such is not susceptible to judicial review by this Court.[38]
[38] Migration Act, s.476(2)(a)
I accept that the grounds to raise the following issues, namely whether:
a)Mr Visuvanathan was afforded procedural fairness by the Tribunal: Grounds 2, 9, 11 and 15;
b)the Tribunal and (to the extent it may be relevant) the delegate failed to serve documents correctly: Grounds 3 and 4;
c)the Tribunal denied Mr Visuvanathan the right to representation: Grounds 5, 6 and 8;
d)the Tribunal failed to consider procedural errors made by the delegate: Ground 7; and
e)the Tribunal's decision was affected by bias: Grounds 10, 12 and 13;
Issue (a): was Mr Visuvanathan afforded procedural fairness by the Tribunal?
Grounds 2, 9, 11 and 15
These grounds make broad assertions that the Tribunal failed to accord Mr Visuvanathan procedural fairness. They do not a particularise a breach of any of the provisions of Division 5 of Part 5 of the Migration Act, that division being an exhaustive statement of the natural justice hearing rule in relation to the matters it deals it.[39]
[39] Migration Act, s.357A
The Minister makes the following observations, which I accept, in relation to the Tribunal's compliance with its obligations under Part 5, Division 5 of the Migration Act:
a)the applicants were issued with an invitation to comment on or respond to information on 12 October 2018.[40] As required by s.359A(1), that invitation set out the information to which the applicants were invited to respond and explained why it was relevant to the Tribunal's decision and the possible consequences of the Tribunal relying on it;
b)at Mr Visuvanathan's request, the time for responding to the invitation to comment was extended, although not to the extent requested by him;[41]
c)the applicants provided material within the time frame specified by the Tribunal;[42]
d)the applicants were invited to attend a hearing before the Tribunal[43] and attended that hearing;[44] and
e)after the hearing, the applicants provided further material that was considered by the Tribunal.[45]
[40] CB 123-126
[41] CB 127-133
[42] CB 134
[43] CB 208
[44] CB 211
[45] CB 221
I find that the Tribunal's review took place within the confines of all the procedural fairness requirements prescribed by Division 5 of Part 5 of the Migration Act.
Issue (b): did the Tribunal and delegate fail to serve documents correctly?
Grounds 3 and 4
These grounds make generalised assertions that the Tribunal and delegate failed to serve documents correctly.
The Tribunal can serve documents by email to the last email address provided by the applicant(s).[46] The applicants provided the email address "[email protected]" to the Tribunal in their application.[47] That email address was not changed by the applicants and they responded to correspondence sent to that address.
[46] Migration Act, s.441A
[47] CB 74
The delegate can serve documents to the last known email address of the applicant.[48] The applicants appear to have been represented by a migration agent before the delegate and documents were hence served to the email address "[email protected]". There is no issue as to the applicants having received documents from the delegate, Mr Visuvanathan having responded to the NOICC and filed an application for review to the Tribunal attaching the correspondence notifying the applicants of the cancellation of Mr Visuvanathan’s visa.
Issue (c): did the Tribunal deny the applicants the right to representation?
[48] Migration Regulations 1994 (Cth), regulation 2.55
Grounds 5, 6 and 8
These grounds assert that the Tribunal denied the applicants the right to representation.
There is no entitlement to representation in a proceeding before the Tribunal.[49]
[49] SZRVA v Minister for Immigration [2019] FCA 630 at [45]
Mr Visuvanathan appears to have been in contact with a representative.[50] However, there is no suggestion that the applicants attempted to appoint a representative in the Tribunal proceeding. Nor is there any evidence to suggest that the Tribunal attempted to or in fact prevented the applicants appoint a representative. The Tribunal expressly noted that "the applicants were not assisted by any representation on the day, but have had the opportunity for advice from the representative beforehand and since the hearing".[51]
[50] CB 270 at [25]
[51] CB 276 at [63]
This issue raised by Mr Visuvanathan does not establish an arguable case of jurisdictional error.
Issue (d): Did the Tribunal fail to consider procedural errors made by the delegate
Ground 7
This ground does not identify any "procedural errors" made by the delegate.
As noted above, insofar as Ground 7 suggests the delegate made a procedural error, this Court does not have jurisdiction to review a decision of the delegate.[52] Any want of procedural fairness by the delegate is irrelevant to the Tribunal’s exercise of jurisdiction.
[52] Migration Act, s.476(2)(a)
Ground 7 does not establish an arguable case of jurisdictional error.
Issue (e): Is the Tribunal's decision affected by bias?
Grounds 10, 12 and 13
These grounds appear to suggest that the Tribunal member was biased in her decision.
A finding of actual bias is a grave matter.[53] To make a finding of actual bias in the form of pre-judgement, the reviewing or appellate court must assess the state of mind of the judge or decision-maker in question.[54] To satisfy the heavy onus of proof, an applicant must put forward "cogent evidence"[55] that "clearly prove[s]"[56] that the decision-maker did not approach his or her task with an open mind.
[53] Sun Zhan Qui v Minister for Immigration (1997) 81 FCR 71 at 127 per Burchett J
[54] Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 at 437–438 at [33]
[55] Sun Zhan Qui
[56] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [69]
There is simply no evidence to support the allegations of actual bias.
Conclusion
Although Mr Visuvanathan is aggrieved, first by the treatment of him by his employer, and secondly, by the cancellation of his visa, he is not able to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs, in accordance with the Federal Circuit Court Rules. Mr Visuvanathan enquired about options for payment of the costs over time, but did not oppose an order for costs in principle. The second applicant made no submissions in relation to costs.
I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 29 October 2019
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