Xue v Minister for Immigration
[2020] FCCA 1708
•25 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| XUE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1708 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a temporary work visa – principal applicant ceasing work for more than 90 days – whether the Tribunal erred in its exercise of discretion considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.48, 116, 140, 189, 198, 360, 360A, 362B, 363, 379A, 477 |
| Cases cited: Minister for Immigration v SZMTA (2019) 264 CLR 421 Minister for Immigration v SZVFW [2018] HCA 30 MZALO v Minister for Immigration [2016] FCA 1339 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 |
| First Applicant: | MINGQIANG XUE |
| Second Applicant: | YAFANG HE |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 441 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 June 2020 |
| Delivered at: | Sydney, by telephone to Perth |
| Delivered on: | 25 June 2020 |
REPRESENTATION
The Applicants appeared in person
| Solicitors for the Respondents: | Ms J Tran of Australian Government Solicitor |
ORDERS
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, fixed in the sum of $4,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 441 of 2019
| MINGQIANG XUE |
First Applicant
| YAFANG HE |
Second 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, Mr Xue and Ms He,[1] seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 23 October 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel Mr Xue’s temporary skilled work visa.
[1] Their child, Xi Nuo Xue, was a party to the Tribunal review but was not a party to the judicial review application
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 11 June 2020.
Mr Xue is a citizen of China who first arrived in Australia on 7 April 2016 as the holder of a work visa. Ms He is his spouse.[2]
[2] Court Book (CB) 29, 34, 40, 55-56
On 27 July 2018 Mr Xue’s sponsor notified the Minister’s Department that Mr Xue had ended his employment with the sponsor and that the sponsor was therefore no longer sponsoring him. The sponsor stated that Mr Xue fully acknowledged that the sponsor would notify the Minister’s Department of the change to the circumstances.[3]
[3] CB 1-2
On 12 April 2019 Mr Xue was notified of the intention to consider cancellation (NOICC) of his work visa under s.116(1)(b) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had not complied with condition 8107(3)(b) of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) attached to his work visa which stated that if the visa holder ceased employment, the period in which the visa holder ceased employment must not exceed 90 consecutive days. Mr Xue was invited to comment on the ground for cancellation and to give reasons why the work visa should not be cancelled.[4]
[4] CB 6-12
On 13 April 2019 and 17 May 2019 Mr Xue responded to the NOICC by providing a brief statement and the birth certificate dated 13 July 2018 and baptism certificate dated 21 October 2018 of his child.[5]
[5] CB 13-15 and CB 18-22
On 21 May 2019 the delegate of the Minister notified Mr Xue of the cancellation of the work visa.[6]
[6] CB 23-36
On 22 May 2019 the applicants sought review of the delegate’s decision by the Tribunal.[7]
[7] CB 37-39
On 24 September 2019 the applicants were invited by the Tribunal to attend a hearing on 23 October 2019 to give evidence and present arguments.[8] The applicants failed to respond to this invitation.
[8] CB 57-66
On 16 October 2019 an SMS hearing reminder sent to the mobile telephone number on the review application failed to deliver.[9]
[9] CB 69-70
On 17 October 2019 the Tribunal wrote to the applicants to remind them to provide a response to the hearing invitation letter.[10] A telephone call made by an officer of the Tribunal to Mr Xue’s mobile telephone number failed to connect.[11]
[10] CB 67
[11] CB 70
On 18 October 2019 a further telephone call made by an officer of the Tribunal to Mr Xue’s mobile telephone number failed to connect.[12]
[12] CB 70
On 22 October 2019 a further SMS hearing reminder sent to the mobile phone number on the review application failed to deliver.[13]
[13] CB 70
On 23 October 2019 the applicants failed to appear at the hearing.[14] On the same day, Tribunal affirmed the decision to cancel the work visa.[15]
[14] CB 71-73
[15] CB 79-84
On 13 November 2019 (within the 35 days provided in s.477 of the Migration Act) the adult applicants filed an application for judicial review of the Tribunal’s decision in this Court.
Tribunal decision
The Tribunal decision appears at CB 79-84.
The Tribunal noted that the applicants had not appeared at the hearing. The Tribunal noted that it had written to the applicants on 24 September 2019 but had not received a response, and that SMS hearing reminders were sent on 16 and 22 October 2019. The Tribunal was satisfied that the applicants were properly invited in accordance with s.379A(5) of the Migration Act and that the invitation was not returned to sender. The Tribunal was also satisfied that the SMS hearing reminders were sent to the mobile telephone number provided in the review application. The Tribunal decided to make its decision on the review without taking any further action to enable the applicants to appear before it pursuant to s.362B of the Migration Act.[16]
[16] [6]-[7]
The Tribunal summarised the evidence at [10]-[14] and stated on that evidence before it, and as there was no evidence to the contrary, Mr Xue did cease employment on 2 July 2018 with the sponsoring employer who most recently nominated him for a work visa. The Tribunal consequently found that the period during which Mr Xue ceased employment exceeded 90 consecutive days. As Mr Xue did not comply with condition 8107(3)(b), the Tribunal found at [15]-[16] that he breached condition 8107 and that the ground for cancellation was made out.
In relation to the consideration of its discretion whether to cancel the visa, the Tribunal referred to the factors in the Procedures Advice Manual Guidelines as follows:
a)the purpose of Mr Xue’s travel to and stay in Australia was to work in Australia. The Tribunal found that the purpose of working as a chef for the sponsor no longer existed as Mr Xue ceased working for the sponsor on 2 July 2018. There was no evidence that Mr Xue had found a new approved standard business sponsor that has applied for approval of a nomination and that nomination had been approved. The work visa was a temporary visa of limited duration related to working for a particular sponsor in a skilled occupation. The Tribunal found at [19]-[20] that this purpose no longer existed;
b)there was no evidence that Mr Xue had not complied with any visa conditions other that condition 8107. The Tribunal noted that Mr Xue had the opportunity to mitigate the breach by finding employment with another sponsor. The Tribunal had regard to the Mr Xue’s submission to the Minister’s Department that he was working as a chef, but noted there was no evidence before the Tribunal that this was so. There had been 15 months that Mr Xue was employed by the sponsoring employer. Mr Xue’s failure to commence employment with a new sponsor after the non-compliance represented a significant breach of condition 8107;[17]
c)the Tribunal had regard to the limited evidence as to the degree of hardship caused by the cancellation. Specifically, the Tribunal had regard to Mr Xue’s submission that his wife and child relied on him for support. Mr Xue held a temporary visa, the cancellation of which would be disappointing and there would be financial and emotional consequences. However, Mr Xue would not have had a real expectation that he would be able to remain in Australia on a permanent basis. The Tribunal was satisfied at [24]-[25] that Mr Xue would be able to work and support himself and family in China with his skills and experience as a chef;
d)the applicants did not provide any submissions as to the circumstances in which the ground of cancellation arose;[18]
e)the Tribunal, at [27], gave some limited weight in favour of not cancelling the visa because the cancellation would result in Mr Xue becoming unlawful and liable for detention under s.189 of the Migration Act and removal under s.198 if he did not voluntarily depart Australia, and that under s.48 he would have limited options to apply for further visas in Australia;
f)the Tribunal noted at [28] that there was no evidence Mr Xue had been uncooperative towards the Minister’s Department;
g)the Tribunal observed at [30] there was no evidence regarding any international obligations that would be breached as a result of the cancellation;
h)the Tribunal acknowledged at [31]-[33] that Ms He and their daughter would be subject to visa cancellation pursuant to s.140 of the Migration Act if Mr Xue’s visa was cancelled. The Tribunal noted that their visas were granted on the basis of being members of Mr Xue’s family unit and it was the intended consequences of the legislation that members of the same family have the same visa status.
[17] [21]-[23]
[18] [26]
The Tribunal concluded at [35]-[37] that the reasons for cancelling the visa outweighed the reasons for not cancelling the visa.
The present proceedings
These proceedings began with a show cause application filed on 14 November 2019. The grounds in it are:
1.The Tribunal denied the Applicant procedural fairness and constructively failed to exercise its jurisdiction. The newborn baby and the health of the Applicant should have been considered. The Tribunal has presumed that the Applicant would find new employment in Australia. The Tribunal failed to provide adequate opportunity for the Applicant to explain the circumstances and other hardship he faced to find a new sponsor. By failing to take into account the Applicant’s situation, the Tribunal was unable to take into account a relevant consideration that it was bound to take into account; and constructively failed to exercise its jurisdiction.
2.The Tribunal acted unreasonably in the exercise of its discretion under s.363(1)(b) of the Act. The Tribunal ignored the information that the Applicant had provided and then decided for itself whether the Applicant’s visa should be cancelled. Instead, what the Tribunal did was to look at the Department’s decision as the starting point and see whether that decision was correct or not.
3.If the Tribunal had taken the Applicant’s situation and the explanation made by the Applicant into account, it would not have cancelled the Applicant’s 457 visa because the Applicant complied with the visa conditions as the Applicant performed chef work in any possible stage of his employment.
I received as evidence Mr Xue’s affidavit accompanying the show cause application and the court book filed on 15 January 2020.
Only the Minister filed pre-hearing written submissions in accordance with a registrar’s procedural orders.
I invited oral submissions from Mr Xue and Ms He, who attended in person by telephone today, assisted by a Mandarin interpreter in Court. They confirmed their concern about the cancellation of Mr Xue’s visa. They referred to the birth of their child. They told me that this had caused financial pressure. Mr Xue also reported poor sleep and heart palpitations.
It may be that there are humanitarian considerations in this case worthy of consideration by the Minister or his Department. That is beyond the scope of this proceeding. Of the matters raised orally today, only the fact of the birth of the applicants’ child was conveyed to the Minister’s Department in the applicants’ response to the NOICC.
I agree with the Minister’s submissions on the grounds of review advanced.
Ground 1
In this ground, the applicants alleged that the Tribunal denied the applicants procedural fairness and constructively failed to exercise its jurisdiction because the newborn baby and health of Mr Xue should have been considered, the Tribunal presumed that Mr Xue would find new employment in Australia and the Tribunal failed to provide adequate opportunity for the applicants to explain the circumstances and other hardship the first applicant faced to find a new sponsor.
This ground cannot succeed for the following reasons.
The Tribunal did take the applicants’ newborn baby into account at [12], [24] and [31]-[32]. However, the applicants did not provide any information about what role the newborn baby had to play in the cessation of Mr Xue’s employment with the sponsor, his ability to obtain a new sponsor or the hardship that may be caused to his newborn baby by the cancellation. The applicants had provided extremely limited information to the delegate and no further information to the Tribunal regarding these circumstances, and failed to appear at the hearing. The Tribunal could only consider the evidence that was before it.[19]
[19] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [61]
The applicants did not make any submissions in relation to Mr Xue’s health. Accordingly, the Tribunal cannot be taken to have failed to take that into account.
The Tribunal did not “presume” that Mr Xue would find new employment in Australia. Rather, he had the opportunity under condition 8107(3)(b) to obtain a new sponsor within 90 days before he would be in breach of that condition, and this is what the Tribunal discussed at [22]-[23]. It was relevant for the Tribunal to take into account that Mr Xue had the opportunity to obtain a new sponsor, but did not do so, because the extent of the non-compliance with the visa condition was relevant to its discretion as to the cancellation decision. No jurisdictional error can arise on this basis.
The Tribunal did not fail to give the applicants an “adequate” opportunity to explain their circumstances. The Tribunal complied with the formal requirements of inviting the applicants to a hearing. In particular:
a)the Tribunal invited the applicants to a hearing as it was required to do so under s.360(1) of the Migration Act. In doing so, the Tribunal gave the applicants notice of the day on which, and the time and place at which, the applicants were scheduled to appear: s.360A(1);
b)the notice was provided by email, which is one of the methods specified in s.379A: ss.360A(2)(a) and 379A(5);
c)the period the notice provided was at least the 14 days prescribed in regulation 4.21(4) of the Regulations: s.360A(4);
d)the notice contained a statement of the effect of s.362B: s.360A(5).
Accordingly, the applicants were properly invited to a hearing before the Tribunal but failed to appear.
In relation to the reasonableness of proceeding under s.362B of the Migration Act, see below.
Ground 2
In Ground 2, the applicants allege that the Tribunal acted unreasonably in the exercise of its discretion under s.363(1)(b) of the Migration Act, that the Tribunal ignored the information the applicants had provided and that the Tribunal looked at the Minister’s Department’s decision as the starting point and saw whether the decision was correct or not.
By referring to s.363(1)(b), like the Minister, I assume the applicants are alleging that the Tribunal acted unreasonably because it failed to exercise its discretion to adjourn the hearing when the applicants did not appear.
The applicants did not respond to the hearing invitation and failed to appear and, as a result, the Tribunal’s power to proceed with the review under s.362B was enlivened. The Tribunal was satisfied that the applicants had been properly invited to a hearing but had failed to appear. The Tribunal had also sent two SMS hearing reminders, sent a reminder email and made two telephone calls to the first applicant’s mobile telephone number. The applicants failed to respond to all of the above communication. The Tribunal acted reasonably in these circumstances in deciding to proceed to make a decision on the merits of the application for review without making any further attempt to contact the applicants.[20] There was no evidence before the Tribunal that the applicants would attend an adjourned hearing.[21]
[20] Minister for Immigration v SZVFW [2018] HCA 30 at [8]-[9], [67]-[71], [120]-[122] and [140]-[141]
[21] MZALO v Minister for Immigration [2016] FCA 1339 at [22]-[28]
There is no evidence that supports the applicants’ allegation that the Tribunal ignored the information the applicants had provided. The Tribunal referred to the information that the applicants had provided throughout its decision. The applicants have failed to identify any information that the Tribunal has failed to take into account and, furthermore, that the failure to take that information into account could have realistically resulted in a different decision.[22]
[22] Minister for Immigration v SZMTA (2019) 264 CLR 421 at [45]-[47]
It is unclear exactly what jurisdictional error the applicants are alleging in relation to the Tribunal’s review of the Minister’s Department’s decision. The Tribunal independently and carefully considered the evidence before it and made a decision open to it on the material before it.
Ground 3
By Ground 3, the applicants allege that if the Tribunal had taken Mr Xue’s situation and explanation into account, it would not have cancelled the work visa because he complied with the visa conditions because he performed chef work in “any possible stage of his employment”.
This ground is a mere disagreement with the findings made by the Tribunal. The facts supported a finding that Mr Xue did not comply with condition 8107(3)(b) because he had ceased employment with his sponsor for more than 90 consecutive days. As noted by the Tribunal, there was no evidence before it that Mr Xue found a new approved standard business sponsor that had applied for approval of a nomination and that nomination had been approved. It is not sufficient that Mr Xue had merely worked as a chef; the conditions attached to his work visa required him to work for an approved sponsor in the nomination profession.
Conclusion
I conclude that the applicants are unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $4,000. Ms He claimed impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
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, fixed in the sum of $4,000.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 1 July 2020
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