FEDERAL COURT OF AUSTRALIA Singh v Migration Review Tribunal [2004] FCA 1079 MIGRATION – decision of Migration Review Tribunal ("MRT") to affirm decision to cancel the applicant's Temporary Business Entry (Class UC) visa, subclass 457 (Business (Long Stay)) – breach of condition 8107 Schedule 8 of the Migration Regulations 1994 (Cth) – applicant located driving a taxi – privative clause decision – whether breach of natural justice – whether MRT ignored relevant material or relied on irrelevant material Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 116(1)(b), s 349(1), s 474(2) Migration Regulations 1994 (Cth) Schedule 8 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 referred to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 referred to Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 referred to TEJINDER SINGH v MIGRATION REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No Q 25 of 2004 SPENDER J BRISBANE 25 AUGUST 2004 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 25 OF 2004 BETWEEN: TEJINDER SINGH APPLICANT AND: MIGRATION REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: SPENDER J DATE OF ORDER: 25 AUGUST 2004 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application is dismissed. 2. The parties are to make submissions in writing within seven days on the question of costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 25 OF 2004 BETWEEN: TEJINDER SINGH APPLICANT AND: MIGRATION REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: SPENDER J DATE: 25 AUGUST 2004 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This is an application filed pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") seeking prerogative relief in respect of a decision of the Migration Review Tribunal ("the MRT") made on 30 December 2003 and communicated to the applicant under cover of a letter of the same date. 2 The MRT on 30 December 2003 decided to affirm a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to cancel the applicant's Temporary Business Entry (Class UC) visa ("the visa") on 22 July 2003 for breach of condition 8107 in Schedule 8 of the Migration Regulations 1994 (Cth). Condition 8107 provides that the holder of a visa such as the applicant held must not change employer or occupation in Australia. 3 The applicant is a national of India born on 6 June 1979. On 27 February 1998 the applicant arrived in Australia as the holder of a Student (Temporary) (Class TU) visa, subclass 560 (Student) valid until 30 April 1999. He was granted a further subclass 560 visa on 7 May 1999 that was valid until 31 August 2000. He travelled out of Australia on this visa between 21 June 1999 and 19 July 1999. Another subclass 560 visa was granted to the applicant on 25 September 2000 that was valid until 28 September 2002. On 8 October 2002 he was granted a Temporary Business Entry (Class UC) visa, subclass 457 (Business (Long Stay)). Attached to this visa was condition 8107. 4 The applicant was granted the subclass 457 visa to work for a company, Consultants Exchange Australasia Pty Ltd as a Computing Professional on a salary of $45,000 a year. The reasons for decision of the MRT indicate that on 18 July 2003 the applicant was located by an officer of the compliance section of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") driving a taxi. 5 The reasons of the MRT record what occurred on and subsequent to 18 July 2003: '12. On 18 July 2003 the review applicant was handed a written notice of intention to cancel the visa which alleged that the review applicant was working in contravention of the work limitation condition of his visa. The delegate invited the review applicant to respond at interview on 22 July 2003. The review applicant responded at the interview and stated that: I know I did a mistake. Can you consider all my hard work. I have not worked for my sponsoring company since January 2003 because they have lost some contracts. I have been driving taxis for about 3 weeks. 13. On 22 July 2003, following the interview the delegate proceeded to cancel the review applicant's visa, noting that: Subject had clearly breached visa condition 8107 in that he worked in an occupation inconsistent with the approved position and has also worked for another person. 14. An application for review was lodged with the Tribunal on 28 July 2003. On this application the review applicant claimed that: The decision is flawed. The review applicant was issued with a notice of intention to consider Cancellation under 116(1)(b) of the Act on the ground that its holder has not complied with a condition of the visa. We believe (in reference to various Federal Court cases), that section 116(1)(b) could not justify cancellation solely on the ground that the visa holder has not complied with a condition of the visa. The review applicant was sponsored to work in Australia. 15. A hearing was conducted on 3 December 2003 at which the review applicant gave sworn evidence. The review applicant advised that Consultants Exchange Australasia Pty Ltd is a recruitment agency. He said that he found work with Zinc InfoTech but they would not sponsor him and advised him to approach an agency. He said that he approached Consultants Exchange Australasia Pty Ltd and they arranged his sponsorship and he then commenced to work at Zinc InfoTech. He said that he was paid by Consultants Exchange Australasia Pty Ltd. 16. The copy of the approval for the subclass 457 visa on the Department's file dated 8 October 2002 confirms the review applicant's claim that the sponsoring business is Consultants Exchange Australasia Pty Ltd. During the course of the hearing the review applicant handed to the Tribunal a copy of his service contract. The contract is between the visa applicant and cXc Consulting Pty Ltd ACN 087 819 538 and provides that the visa applicant will be engaged by the company as a computer specialist and be paid a consultancy fee calculated from the revenue received by the company from third parties who enter into agreements for the visa applicant's services. The agreement is structured so that the visa applicant is an independent contractor and not an employee. The visa applicant also handed to the Tribunal a copy of the PAYE payment summary for the period one December 2002 to 17 December 2002 showing that payments were made by the above named company to the visa applicant. The visa applicant also handed to the Tribunal a copy of an undated agreement between the company, the visa applicant and Zinc InfoTech whereby the company made available to Zinc InfoTech the services of the visa applicant as a consultant. 17. The visa applicant told the Tribunal that he worked for Zinc InfoTech up to December 2002 when he returned to India for a break. He returned to Australia in March 2003 and attempted to contact Zinc InfoTech but they had changed the telephone number. He claims that he also left messages with cXc Consulting Pty Ltd and but they did not returned his calls. He said that at this time the relationship with his girlfriend had broken up and he was running short of money and as a consequence he started driving taxis. 18. The visa applicant claimed that he had tried to get work in the IT industry but was unable to do so and for that reason started driving taxis. He is not married and has no children. He has been in Australia for six years but only has a diploma in IT and unless he can get a degree he will not be as well-paid in India. Unless he gets a degree his family will be very upset as they have spent money on his education. He wants to remain in Australia and work in the IT industry is so that he can develop his skills and then return to India.' 6 Section 116(1)(b) of the Migration Act 1958 (Cth) ("the MigrationAct") in force at the time of the cancellation decision provided: 'Subject to subsections (2) and (3) the Minister may cancel a visa if he or she is satisfied that: … (b) its holder has not complied with a condition of the visa.' 7 At the time of grant of the visa, condition 8107 provided: '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; or (ii) work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or (iii) engage in work for another person or on the holder's own account while undertaking the employment in relation to which the visa was granted.' 8 In the circumstances of this case the Minister had power to cancel the visa, but she was not obliged to do so. 9 The MRT referred to the Migration Series Instructions 369, which document the MRT said 'provides the following guidance in considering the exercise of the power with respect to cancellation of the visa'. That instruction directs: 'The Tribunal must have regard to the following matters: · the purpose of the visa holder's travel to and stay in Australia; · the extent of non-compliance with any conditions subject to which the visa was granted. For example, a visitor who is located working illegally may have committed a more serious breach of conditions than a student visa holder who is found working two hours over the allowed twenty hours per week, but is still attending lectures and meeting course requirements; · the degree of hardship which may be caused to the visa holder and any family members; · the circumstances in which the ground for cancellation arose; and · the person's behaviour in relation to the Department, now and on previous occasions. For example, the truthfulness of statements made to officers of the Department or in applications before the Department and their overall record of compliance with visa conditions, provisions and/or undertakings.' 10 The MRT addressed each of these points: The purpose of the visa holder's travel to and stay in Australia; '29. The applicant claimed at interview that his purpose in coming to Australia was to work in Australia in the infotech industry. His subclass 457 visa was granted for him to work as a computing professional which is consistent with this claim. The extent of non-compliance with any conditions; 30. Apart from the non-compliance with the visa condition 8107 which led to the visa cancellation by the Department there is also further evidence of non-compliance with a visa condition as the documentation produced by the review applicant at the hearing disclosed that at no time did the review applicant work for the sponsoring company. The degree of hardship which may be caused to the visa holder and any family members; 31. The applicant is unmarried and does not have children. At interview the review applicant claimed that is his visa was cancelled this would end his career in Australia and other countries. The circumstances in which the ground for cancellation arose; 32. The applicant was found driving a taxi. The sponsoring company advised the Department that he had ceased working for them. The review applicant claimed to have limited funds and to be living with friends to enable him to survive on limited funds. The person's behaviour in relation to the Department, now and on previous occasions 33. There is no evidence of any problems in relation to the review applicant's behaviour towards the Department.' 11 The reference to advice from the sponsoring company in the penultimate paragraph appears to be an erroneous reference to the contents of a letter dated 22 July 2003, the very date of an interview at 10.00 am that the applicant was invited to attend, to 'comment on the intention to cancel your visa and to give reasons why your visa should not be cancelled.' The interview commenced at 10.00 am, and the delegate proceeded to cancel the applicant's visa at 10.07 am. The letter, which bears a facsimile notation that it was sent at 11.09 on 22 July 2003, appears to have been faxed to a Melbourne facsimile number referred to as "Monitoring Unit" of the Department. The body of the letter said: 'To Whom it may Concern, TERMINATION OF 457 BUSINESS SPONSORSHIPS For Consultants Exchange A'Asia Pty Ltd – PQBS – 170502623 I am acting on behalf of the above named company and wish to advise that they will be terminating their sponsorship with regards to the following person: Name: DOB: Last known address: Tejinder Singh 06/06/79 189 Blackburn Road Blackburns Hill VIC 3130 Yours faithfully Allison McMillin Ingrid Webber Ambler Collins Pty Ltd General Manager on behalf of Consultants Exchange A'Asia Pty Ltd' The decision of the departmental officer to cancel the visa is dated 22 July 2003 and timed at 10.07 am. The notification of the decision is dated at 10.10 am on 22 July 2003 and the applicant's signature appears on that notification showing a time of 10.12 am on 22 July 2003. As the MRT was advised on behalf of the applicant, it seems tolerably clear that 'Consultants Exchange Australasia had [not] withdrawn their sponsorship of the applicant until representations were made to them by DIMIA on 22/7/03.' 12 The MRT concluded that it was positively satisfied that the correct and preferable decision was that the subclass 457 visa granted on 8 October 2002 should be cancelled. The MRT affirmed the decision under review to cancel the Temporary Business Entry (Class UC) visa which the applicant held. 13 The grounds for relief sought by the applicant under the Judiciary Actand the Migration Actare: '2. The Tribunal denied the applicant procedural fairness in that the Tribunal was required to exercise discretion and balance the reasons for and against the desirability of affirming the decision of the Delegate to cancel the applicant's visa but failed to record the reasons against affirming the decision or the relative weight to be ascribed to them. 3. The Tribunal committed an error of law in that it did not quash the decision of the Delegate for the denial of procedural fairness to the applicant in that: (a) In the Decision – Part B – Record of Decision Whether to Cancel Visa – Section 7 – Decision, the Delegate was required to exercise discretion and balance the reasons for and against the desirability of canceling the visa but failed to record the reasons against canceling the visa or the relative weight to be ascribed to them including that the applicant had been compliant in all dealings with the Department. (b) In the Notice of Intention to Consider Cancellation – Part A – Section 9, the Delegate was required by the Migration Act 1958 (the "Act") at s 119(a) to "give particulars of those grounds" and no particulars of grounds were given. (c) The Delegate was required to give the applicant a reasonable time to prepare his case why grounds do not exist but only gave the applicant one business day as the alleged breach was recorded at 8.46 pm on a Friday evening on 18 July 2003 but the applicant was required to attend at interview at 10.00 am on 22 July 2003 which was insufficient time for the applicant to seek legal advice on his position and copies of a large number of documents from his employer. (d) The applicant was threatened by the Delegate of being placed in immigration detention if he did not sign the Notice of Intention to Consider Cancellation – Part C – Notification of Decision to Cancel Visa under s 116 of the Migration Act 1958 – Section 9 that he had received the Part B – Record of Decision Whether to Cancel Visa. (e) The decision at interview was reached by 10.07 am on 22 July 2003 for an interview scheduled to commence at 10.00 am which was not sufficient time for the applicant to present his case in the detail required. 4. The Tribunal ignored relevant material in a way that affected the exercise of its power in that at no time was the second respondent able to produce evidence of the termination of the applicant's employment against the applicant's evidence that his employment had never been terminated. 5. The Tribunal identified a wrong issue or alternatively relied on irrelevant material in a way that affected the exercise of its power in that at paragraph 16 of the Decision it found the applicant to be "an independent contractor and not an employee" when the definition of an employee includes those working as independent contractors who are exclusively offering their labour services. 6. The Tribunal ignored relevant material in a way that affected the exercise of its power in that while it was evident that the applicant was still employed as he had received no termination notice but was awaiting the next assignment from the sponsoring employer, he had little choice but to take other employment such as driving a taxi to enable him to continue basic subsistence. 7. ADDITIONAL GROUND – The applicant was denied procedural fairness in that the Tribunal used in its decision matters that it had led the applicant to believe at the hearing were not relevant or would not be used against him: (a) The Tribunal declined to hear submissions on a matter deemed to be irrelevant being the fact that the sponsoring company had withdrawn its sponsorship on 22 July 2003 but then used that matter in the determination of its decision. (b) The tribunal led the applicant to believe the exact name of the company for which he worked had not been the sponsoring company which was a breach for which he could not be held accountable but then used that against him in its decision. 8. ADDITIONAL GROUND – The Tribunal committed jurisdictional error in that it ignored relevant evidence being that the sponsoring company only expressed an intention to terminate its sponsorship but had never done so in its determination that the sponsoring company had withdrawn it sponsorship.' 14 The decision of the MRT is a privative clause decision pursuant to s 474(2) of the Migration Act. The High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 held that decisions taken in breach of the rules of natural justice are not within the scope of the protection afforded by s 474 of the Migration Act. Grounds 2 and 3, and 7 and 8 allege a breach of the rules of natural justice. 15 So far as ground 2 is concerned, that ground is essentially an attack on the adequacy of the reasons and, as such, is not a proper basis for review: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. A fair reading of the reasons of the MRT indicates that there was a weighing up by the MRT of relevant considerations, including the considerations weighing against affirming the decision. 16 The particularised allegations of denial of procedural fairness in ground 3 seem to be directed at breaches of procedural fairness by the original decision maker. The detailed facts seem to suggest that there was a very swift rush to judgment by the delegate, as the notification of intention to cancel was recorded at 8.46 pm on evening of Friday 18 July 2003; the applicant was required to attend at interview at 10.00 am on 22 July 2003; and the decision to cancel was made at 10.07 am on 22 July 2003. 17 However, there are no cognate allegations against the way the hearing in the MRT occurred. Section 349 of the Migration Act provides that the MRT may affirm, vary or set aside the decision of the Minister's delegate, and s 349(1) provides that in so doing the MRT may 'exercise all the powers and discretions that are conferred by this Act on the person who made the decision.' 18 The role of the MRT is to decide what was the correct or preferable decision on the material before the MRT. A Full Court of the Federal Court in The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234 said: 'It is, of course, well established that the Tribunal determines what was the correct or preferable decision having regard to the whole of the evidence placed before it. It is not confined to the evidence which was before the primary decision-maker. The Tribunal is, however, obliged to address the same question as was before the primary decision-maker. This distinction was spelled out by Davies J in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342.' 19 Weinberg J in Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 said at 526: '… The issue properly before the IRT was not whether or not the respondent had an entitlement to a new student visa but rather whether or not the cancellation decision was the "correct and preferable" decision. It was that decision alone which could be affirmed or set aside. In setting aside that decision, the IRT was not empowered under the Act to grant a new student visa even if it thought that such an order was necessary or appropriate.' 20 The complaints in the particularised ground 3 cannot give rise to any jurisdictional error on the part of the MRT. 21 With regard to the allegations of a denial of procedural fairness that are made in grounds 7 and 8, the transcript of the proceedings in the MRT reveals that Consultants Exchange Australasia Pty Ltd ("Consultants Exchange Australasia") whose ACN is 083 236 453, according to a statement made by the MRT at the hearing on 3 December 2003. The evidence suggests that the applicant, when he was about to finish his diploma, was introduced to a company called Zinc InfoTech, and that company sent him to Consultants Exchange Australasia to arrange the sponsorship, and that subsequent to the grant of the visa he worked for Zinc InfoTech . That work was subject to an agreement between Mr Singh and cXc Consulting Pty Ltd ("cXc Consulting"), which company paid him consultancy fees. cXc Consulting is a different company from Consultants Exchange Australasia, the ACN for cXc Consulting being 087 819 538. However, it is plain from a letter of 25 September 2002 under a letterhead "cXc Consultants Exchange", that the sponsoring company used a degree of looseness in the business names, and companies, under which it operated. The letter commenced: 'Dear Tejinder Welcome to Consultants Exchange Australasia (cXc), "the" management team. Please find detailed in this letter information to assist you during your contracting period in Australia through one of our companies and in your dealings with cXc. Also enclosed are various forms which you are required to complete and return to our office.' and later: 'As you will be receiving a salary through our company, you are required to complete a Tax File Number Declaration Form (enclosed). Instructions are provided with this Form but if you experience any difficulties in completing it, contact our office to assist you. You will need to return the completed declaration form to cXc.' and later, under the heading "CONTRACT AGREEMENT": 'You will have already completed an "Options Agreement" with cXc, advising us of your personal details. Enclosed is an Agreement between yourself and the nominated cXc company which employs you.' 22 The Tribunal member said to the migration agent acting for the applicant: 'So without knowing it, your client was in breach of 8107 from day one?' and the agent said: 'Yes, I agree with you. Without knowing, yes.' 23 At the MRT hearing, the applicant's agent referred to the facsimile of 22 July 2003 set out above, which appears to be by Amber Collins Pty Ltd, Immigration and Commercial Consultants on behalf of Consultants Exchange Australasia, which was faxed to the Department 'two hours after the decision was made', 24 The Tribunal Member noted: 'The Department haven't nominated as a ground for cancellation that the sponsorship was withdrawn'. And: 'Therefore, I'm not interested.' The Member continued: 'If they had stated as a ground for cancelling your visa that the sponsorship had been withdrawn, then I would be looking at that ground this morning, but they haven't, and therefore I don't need to address whether that company had the right to withdraw the sponsorship or not.' 25 As appears from the reasons of the MRT, the MRT did not indicate that it would not make a finding that the applicant had never worked for the sponsoring company. What the MRT indicated was that it was unnecessary for it to consider whether the company had withdrawn its sponsorship or whether the company had the right to withdraw the sponsorship. The MRT reinforced that position by saying: 'The circumstances relating to the cancellation are the driving, not the withdrawal of sponsorship. I don't need to go into the withdrawal of sponsorship. It's got nothing to do with it.' And: 'The fact that somebody rang up the former employer and got them to withdraw the sponsorship has got nothing to do with it. It's out there in left field. We don't need to touch it.' 26 It is true that par 32 of the MRT's reasons contains the sentence, 'The sponsoring company advised the Department that he had ceased working for them.' This statement is incorrect: the facsimile on behalf of Consultants Exchange Australasia advised that 'they will be terminating their sponsorship with regards to' the applicant. The evidence did establish that the applicant, since his return from India in March 2003 had not worked for Zinc InfoTech or Consultants Exchange Australasia or cXc Consulting. I do not accept that it can be fairly said that the MRT misled the applicant in any respect in respect of the hearing in the MRT on Wednesday 3 December 2003. 27 Ground 6 appears to be a restatement of the matters referred to in ground 4. It seems plain from the transcript of the hearing by the MRT that it did not consider it necessary to make a decision as to whether the applicant's "employment" by the sponsor had been terminated. The MRT recognised that the applicant had claimed he tried to get work in the IT industry and was unable to do so, and for that reason started driving taxis. The MRT noted that the applicant had claimed that he had worked for Zinc InfoTech until December 2002 when he returned to India, and on his return to Australia in March 2003 had attempted to contact Zinc InfoTech without success, and had left messages for cXc Consulting which were not favoured with any response. It noted that his relationship with his girlfriend had broken up, that he was running short of money, and that as a consequence he had started driving taxis. It is plain, in my opinion, that these matters were not only identified by the MRT, but taken into account in the exercise of the statutory discretion. 28 Ground 5 of the applicant's application is directed to the statement in par 16 of the reasons of the MRT that the agreement between cXc Consulting and the applicant was structured so that 'the visa applicant is an independent contractor and not an employee.' The sentence dealing with the structure of the agreement in the middle of par 16 is followed by the sentence that there was a PAYE payment summary for the period from 1 December 2002 to 17 December 2002 showing that payments were made by cXc Consulting to the applicant. The characterisation by the MRT seems to accord with some of the provisions of the agreement dated 25 September 2002. Clause 2.1 of that agreement provides: 'The Specialist is engaged by the Company in the capacity of a computer Specialist and will be paid consultancy fees calculated from the revenue received by the Company from third parties who enter into agreements for the Specialist's services (the "Client").' And cl 2.4 provides: 'The Specialist will not be paid by the Company for any periods of sickness, statutory holidays or any non revenue earning periods. The Specialist has no holiday entitlement, paid or otherwise, or long service leave from the Company as there is no employment relationship between them.' 29 However, it seems to me that whether the applicant, during the time of the currency of the agreement between cXc Consulting and the applicant, is properly to be characterised as an "independent contractor" or an "employee", is irrelevant to the decision of the MRT. That decision was based on a breach of condition 8107 which gave rise to a power to cancel the visa pursuant to s 116(1)(b) of the Migration Act. 30 None of the grounds of the application for prerogative relief directed to the MRT has been made out. It follows that the application should be dismissed. 31 Having regard to the circumstance that the initial hearing of this application on 5 May 2004 had to be adjourned to 17 May 2004 because of late delivery to the applicant of the tape recording of the proceedings in the MRT, I indicated then that I would hear the parties on the question of costs. 32 My present view is that the Minister should pay the costs of the applicant thrown away by the need to adjourn on 5 May 2004, but that otherwise the applicant should pay the Minister's costs of and incidental to his application, to be taxed if not agreed. The parties should submit, within seven days, any submissions on costs they might wish to make in the light of my expressed present view on the question of costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender . Associate: Dated: 25 August 2004 Counsel for the Applicant: Mr Michael Wilson Solicitor for the Applicant: Sharma Lawyers Counsel for the Respondent: Mr Peter Bickford Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 17 May 2004 Date of Judgment: 25 August 2004