Federal Court of Australia Guggal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 641 Appeal from: Guggal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 89 File number: VID 276 of 2022 Judgment of: O'CALLAGHAN J Date of judgment: 14 June 2023 Catchwords: MIGRATION – appeal from judgment of Federal Circuit and Family Court of Australia (Division 2) dismissing an application for review of a decision of the Administrative Appeals Tribunal (Tribunal) – where applicant contended that he had worked for several days in December 2018 – where Tribunal found that applicant's evidence to be inconsistent – where Tribunal found that the applicant ceased employment in September 2018 – where evidence was not inconsistent – whether Tribunal's error was jurisdictional Legislation: Migration Act 1958 (Cth) s 116(1)(b) Migration Regulations 1994 (Cth) Condition 8107(3B) Cases cited: Guggal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 89 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Nathanson v Minister for Home Affairs (2022) 403 ALR 398 Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 45 Date of hearing: 9 June 2023 Counsel for the Applicant: V Murano Counsel for the First Respondent: L Hamzi Solicitor for the Respondents: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS VID 276 of 2022 BETWEEN: KAMALJEET GUGGAL Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: O'CALLAGHAN J DATE OF ORDER: 14 June 2023 THE COURT ORDERS THAT: 1. The name of the first respondent be amended to "Minister for Immigration, Citizenship and Multicultural Affairs". 2. The application for extension of time be allowed. 3. The appeal be allowed. 4. The orders of the Federal Circuit and Family Court of Australia (Division 2) be set aside and, in their place, order that: (a) the decision of the second respondent made on 23 May 2019 be quashed; (b) the second respondent determine the applicant's review application according to law; and (c) the first respondent pay the applicant's costs of and incidental to proceeding MLG2193/2019, to be taxed if not agreed. 5. The first respondent pay the applicant's costs of this proceeding, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT O'CALLAGHAN J: INTRODUCTION 1 The applicant seeks an extension of time to appeal from the decision of the Federal Circuit and Family Court of Australia (Division 2) made on 18 February 2022, dismissing his application for judicial review of the decision made by the second respondent (the Tribunal) to affirm the decision of a delegate of the first respondent (the Minister) to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. 2 The application was heard on the understanding that the question of the whether to grant the extension sought would turn on the merits of the proposed grounds of review. (It was common ground that the application for an extension of time was necessary because the notice of appeal ought to have been filed 67 days earlier.) 3 The Tribunal affirmed the decision of the delegate to cancel the applicant's visa under s 116(1)(b) of the Migration Act 1958 (Cth), by reason of his purported non-compliance with visa Condition 8107. 4 Section 116(1)(b) of the Migration Act provides that "… the Minister may cancel a visa if he or she is satisfied that … its holder has not complied with a condition of the visa". 5 Schedule 8 of the Migration Regulations 1994 (Cth) sets out various conditions to which various visas are subject from time to time. At all relevant times, Condition 8107(3B)(b) provided that "if the holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days". Although the delegate identified Condition 8107(3B)(b) as the relevant visa condition that was said to have been breached by the applicant, the Tribunal and the court below identified Condition 8107(3)(b), which is a different condition. Nothing, however, turns on that error. I will refer to it as Condition 8107. THE TRIBUNAL'S REASONS 6 The critical part of the Tribunal's reasons is as follows: 29 The Tribunal has carefully considered the evidence before it. 30 The applicant stated early in the hearing that he had ceased employment with the sponsor in September 2018, which was consistent with written statements he had previously supplied, and consistent with information the sponsor gave the Department in February 2019. However, after the Tribunal explained condition 8107 and the requirement he must find a new sponsor within 90 days otherwise his visa may be cancelled, the applicant then remarked that he actually also worked for several days in December 2018, therefore the 90 days should start from 20 December 2018 and that is now when he believes to be the date he ceased employment. The Tribunal is of the view that the applicant was attempting to change the narrative to suit his purposes. The Tribunal does not accept this claim by the applicant as it is not consistent with his previous statements, or evidence from the sponsor. Additionally the letter from the applicant's own solicitor indicates that his employment ceased in September 2018. The Tribunal therefore finds the applicant ceased employment in September 2018. 31 The evidence before the Tribunal indicates that the applicant did not become the subject of an approved nomination by an approved sponsor within 90 days of ceasing employment and has not done so since the cessation of his employment in September 2018. On this basis, the Tribunal finds that the period during which the applicant ceased the relevant employment had exceeded 90 consecutive days. The Tribunal accordingly finds that the applicant did not comply with condition 8107(3)(b). 32 For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised. THE REASONS OF THE PRIMARY JUDGE 7 The applicant was self-represented at the hearing before the primary judge, where he raised 11 grounds of review, each of which was rejected. 8 It is tolerably clear from her Honour's reasons that the grounds of appeal now sought to be advanced by pro bono counsel for the applicant, Mr V Murano, were not advanced below in the same way they were advanced before me. 9 To the extent that they touch on the matter raised on this application, her Honour's reasons were as follows (see Guggal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 89): 50 In any event, and secondly, the Tribunal did not rely solely on the employer's evidence in concluding that the applicant's employment had come to an end in September 2018 and not in December 2018. At paragraph [30] of the Tribunal's reasons for decision, the Tribunal explained its reasoning in concluding that the applicant's employment with his former employer had come to an end in September 2018 and not in December 2018 as later claimed. 51 In essence, it is apparent from its reasons that the Tribunal formed the view that the applicant's employment had ceased in September 2018. This conclusion was reasonably open to the Tribunal on the basis of: • The applicant's own evidence; • the apparent shift in the applicant's evidence during the hearing after the Tribunal explained the 90 day time frame; • correspondence from the applicant's solicitor which referred to the applicant's employment coming to an end in September 2018; and • the information provided by the applicant's former employer, which was also consistent both with the applicant's initial evidence as well as correspondence from his lawyer. 52 In relation to the applicant's own evidence, the Tribunal referred to the fact that in the hearing before it, the applicant initially gave evidence that his employment had come to an end in September 2018 and that it was only after the Tribunal had explained the requirements of condition 8107 of his subclass 457 visa that the applicant said that he had actually worked for his former employer in December 2018. Further, the applicant himself did not identify the fact that he had worked for the sponsor in December 2018 until his written submissions and supporting statements provided at the Tribunal hearing on 6 May 2019. 53 The Tribunal also had before it a claim by the applicant's employment lawyer that he was seeking unpaid wages for the period up to September 2018. There is no mention of any claim in respect of work performed in December 2018. … 58 I accept that the Tribunal's decision was clearly open to it on the basis of the evidence before it. When one considers the material before the Tribunal in its totality, it cannot, in my view, be said that there is illogicality or irrationality in the Tribunal's determination of the date on which the applicant's employment with the sponsor came to an end. Nor can it be said that the Tribunal's decision was unreasonable or lacked probative evidence. The Tribunal had before it conflicting evidence as to the date on which the applicant's employment with the respondent came to an end and its resolution of that conflict was available to it on the evidence before it. (Footnotes omitted.) THE APPLICANT'S CASE 10 The applicant contends in an amended draft notice of appeal that the primary judge erred in not finding that the decision of the Tribunal was affected by jurisdictional error by reason of the Tribunal ignoring and/or misunderstanding and/or overlooking critical evidence, or alternatively, making illogical findings about whether the applicant had in fact complied with Condition 8107. 11 In my view, for the reasons that follow, the applicant should be granted an extension of time to file his amended draft notice of appeal, and the appeal should be allowed. 12 Mr Murano submitted that paragraph [30] of the Tribunal's reasons set out above was critical to its conclusion that the applicant's employment ceased in September 2018 and that it contained the following errors. 13 First, in an email that the applicant sent to the delegate on 5 March 2019, the applicant said this (errors in original): Eventually, this was my turn to get sacked by My employer, There was a day when he screamed on me to get F..k.d and do whatever you want… you are just a temporary resident who is nothing at the front of a citizen… He kicked me out and called me back a short time back on the job for a couple of days when his co-worker Named [Hardeep Singh Gill] went overseas, I returned to work in that thought that he might help me again however upon asking for unpaid money, he refused to pay anything said this time I have made proper arrangements to deport you to your blood country. After deceived twice I have been living in some kind of depression … 14 It was contended that "[o]n any sensible reading" of those words, the reader would discern that the applicant's evidence was that: • he had been retrenched by his employer (i.e. Tyrebarn Dandenong); • after being retrenched, his employer called him back to work for a couple of days, as another employee had gone overseas – and the applicant did return to work for a couple of days; and • after returning to work for his employer, he was retrenched a second time (i.e. "deceived twice") because he asked his employer to pay money owing to him. 15 Secondly, on 6 May 2019, before his hearing at the Tribunal, the applicant provided a letter titled "Character Reference Letter" from a taxi driver who stated that he always liked to get his tyres changed at Tyrebarn Dandenong and that "[t]he last time I saw Mr. Kamaljeet Singh Guggal on 17/12/2018 at Tyrebarn Dandenong. I had changed my car tires and wheel alignment Fixed, I am pretty much satisfied with his services" (errors in original). 16 It was contended that "[o]n any sensible reading" of that reference, "the reader would discern that the taxi driver's evidence was that the [a]pplicant was working at Tyrebarn Dandenong (i.e. his employer) on 17 December 2018". 17 Thirdly, on 6 May 2019, before his hearing at the Tribunal, the applicant provided a statement which said (errors in original): I was granted 457 visa on 7th March 2015 but he asked me to come on a little late and I Arrived on work 8th August and I was kicked out from work on 23rd September 2018 however due to his request that another person has gone to India he wanted me to work on 17, 18, 19 December but upon asking for money he shouted at me and said leave, don't want to see you" are just a temporary residence, I will tell the immigration and they will remove you". After getting sack unfairly, even I was aware of my right to claim with 21 days, I tried not to do any damage to Pali [i.e. the Applicant's employer]. I was called back to me on the job again while meeting in the petrol station, I came to know his co-worker had gone overseas, I worked there again in that hope I will get my money back but upon asking he said "leave, I don't want to see you, you are just a temporary residence, I will tell immigration and they will remove you" 18 It was contended that "[o]n any sensible reading" of that statement, the reader would discern the applicant's evidence was that: • on 8 August 2015, he commenced working for his employer (i.e. Tyrebarn Dandenong); • on 23 September 2018, he was retrenched by his employer; • as another employee had gone overseas, his employer asked him to return to work; • he returned to work on 17 December 2018, 18 December 2018 and 19 December 2018; and • after 19 December 2018, he was again retrenched by his employer because he asked his employer to pay money owing to him. 19 The Minister did not dispute that Tribunal had received those documents prior to the hearing. 20 Fourthly, it was contended that on 13 May 2019, the applicant provided to the Tribunal a letter from Fitzroy Legal Service that stated "Mr Guggal instructs that he was paid cash-in-hand between 27 April 2017 and 23 September 2018, and was given $800 monthly". 21 It was contended that the letter says nothing as to the period of time during which the applicant was employed by his employer, but rather identified the period of time during which the applicant was paid cash-in-hand by his employer. 22 It was submitted that having regard to the above evidence that was before the Tribunal in advance of the hearing on 6 May 2019, contrary to what the Tribunal found at [30], it is plain that by saying at the hearing that he "actually also worked for several days in December 2018", the applicant did not "attempt to change the narrative to suit his purposes" or make a claim that was "not consistent with his previous statements". It was further submitted that the letter from the Fitzroy Legal Service did not state that the applicant "ceased employment in September 2018". 23 The applicant submitted that those factual errors were of central significance because they resulted in the Tribunal not lawfully forming a state of satisfaction for the purposes of s 116(1)(b), and that there was jurisdictional error, citing Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 35 [33] (Gageler and Keane JJ) ("The 'satisfaction' required to found a valid exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act is a state of mind. It is a state of mind which must be formed reasonably and on a correct understanding of the law. Equally, it is a state of mind which must be untainted by a material breach of any other express or implied condition of the valid exercise of that decision-making power …") 24 It was submitted that the Tribunal's purported state of "satisfaction" that s 116(1)(b) was engaged arose because it incorrectly found that the applicant had, during the hearing on 6 May 2019, attempted to "change the narrative to suit his purposes" and given evidence that was "not consistent with his previous statements". The Tribunal made those findings because it: • ignored or overlooked or misunderstood evidence in the first statement; • ignored or overlooked evidence in the reference; • ignored or overlooked or misunderstood evidence in the second statement; and • misunderstood evidence in the letter from the Fitzroy Legal Service. 25 As a result of the various errors set out above, the Tribunal found the applicant had not complied with Condition 8107; and was purportedly "satisfied" that grounds for cancellation arose for the purposes of s 116(1)(b). 26 It was also submitted that the Tribunal's purported state of "satisfaction" for the purposes of s 116(1)(b) was not lawfully formed, because the Tribunal's finding at [30], that the applicant had not complied with Condition 8107, flowed from the various identified errors set out above, which errors led the Tribunal to make erroneous findings that the applicant's evidence was inconsistent. 27 The result, it was contended, is jurisdictional error, because the Tribunal's state of satisfaction for the purposes of s 116(1)(b) was not lawfully formed, in circumstances where the material ignored, overlooked and misunderstood was of central importance to the Tribunal's functions in this case, citing Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at 451 [70] (Kenny, Griffiths and Mortimer JJ). 28 Alternatively, jurisdictional error was put on the basis of illogical reasoning, citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 [131] and 649-50 [135] (Crennan and Bell JJ). 29 It was submitted that whichever way the error is conceptualised, it is material and jurisdictional, because had the errors not been made, there is a realistic possibility the Tribunal could have found the Applicant did comply with Condition 8107. The Tribunal would therefore not have been satisfied that there were grounds to cancel the visa under s 116(1)(b), with the result that the visa would not have been cancelled (citing, among many other cases, Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26 at [32] (Kiefel CJ, Keane and Gleeson JJ). THE MINISTER'S CASE 30 The Minister contended to the contrary. 31 He contended that the applicant's case "proceeds from a misunderstanding or misinterpretation as to what the evidence relied on says, and what it does not say. The documents the applicant relies on do not establish that the applicant, in fact, worked for his Sponsor in December 2018, or that, as at 6 March 2019, the applicant had complied with condition 8107(3)(b) of his visa". 32 The Minister contended that: • the second statement says that the applicant was asked to return to work "but" upon asking for money, his employer shouted at him and told him to leave – which indicates that the applicant did not in fact work on 17, 18 or 19 December 2019, notwithstanding a later reference in the second statement to having "worked there again"; • the reference does not state that the applicant was in fact working on 17 December 2018, or that he was responsible for performing the work concerned – to the contrary, it avoids saying that the applicant worked on that day, or performed the services described; • the first statement does not establish that the applicant in fact worked at Tyre Barn Dandenong at any time after 23 September 2018 and merely states, without reference to any dates, that the applicant was "called… back a short time…for a couple of days…"; and • the first statement says that the applicant was called back to work due to the fact that Hardeep Singh Gill had travelled overseas, whereas the second statement suggests that Hardeep Singh Gill may have already left in 2014, and goes on to say that the applicant has "heard" that Hardeep Singh Gill was at that time working at Tyre Barn Dandenong – which further obscures when the applicant returned to work, if he did at all. 33 It was submitted that "[t]aken at their highest" the statements and the reference collectively show no more than: • the applicant's employment was terminated on 23 September 2018; • the applicant was asked to return to work between 17 and 19 December 2018; • the applicant was seen at Tyre Barn Dandenong on 17 December 2018; • upon asking for unpaid money, on or around 17 December 2018, (which may or may not have been in respect of work performed up to September 2023) the applicant's employer shouted at him and told him to leave; and • the applicant may or may not have "worked there again" at some point after being retrenched on 23 September 2018. (Citations omitted.) 34 As to the letter from the Fitzroy Legal Service, it was submitted that it "refers to unpaid wages for the period between 27 April 2017 and 23 September 2018" and that there is no mention of any claim in respect of work performed in December 2018, and it was therefore reasonably open to the Tribunal to form the view, on the basis of the letter, that the applicant's employment had ceased in September 2018. 35 The Minister also submitted that in circumstances where the letter "made no mention of work performed in December 2018, [it] constitutes evidence in support of the findings made by the Tribunal" (emphasis in original). 36 It was submitted that "[t]he Tribunal set out its findings on the material questions of fact, together with the evidence on which those findings were based. In reaching its conclusion, the Tribunal relied on evidence, including from third parties, which established that the applicant had ceased work in September 2018. The [s]tatements and the [r]eference did not feature in that reasoning because, on a proper reading, and in light of the totality of the evidence before the Tribunal, they were not dispositive of the issue in question". 37 It was next submitted on behalf of the Minister that "[i]n the event the Tribunal is found to have ignored or overlooked the [s]tatements or the [r]eference, that error was not jurisdictional" because: First, the Tribunal's function in this case was to determine whether or not it was satisfied that there were grounds for cancellation under s 116(1)(b) of the Act. That state of satisfaction in turn depended on whether the applicant had complied with condition 8107(3)(b), and therefore whether he had ceased employment in September or December 2018. The Tribunal's state of satisfaction was not dependent on any anterior findings as to whether the applicant had changed his narrative or given inconsistent evidence during the hearing. In other words, those findings were not made "on the way" to the Tribunal reaching its state of satisfaction. The Tribunal could have found that the applicant's evidence was consistent throughout the hearing, and still found that the applicant had not satisfied condition 8107(3)(b) in light of the totality of the evidence before it. In turn, while the Statements and the Reference may have had the capacity to influence the Tribunal's findings as to the consistency of the applicant's evidence (which is not admitted), they were not central to the Tribunal's function for the purposes of s 116(1)(b) of the Act. … Secondly, any error in the Tribunal's approach to the [s]tatements and the [r]eference was not material in the relevant sense. The Tribunal was presented with cogent evidence that the applicant has ceased working for his Sponsor in September 2018 … In light of that evidence, even if the Tribunal had considered the [s]tatements and the [r]eference, it was unlikely to place any weight on them, or to prefer them to the countervailing evidence before it. The Tribunal was therefore unlikely to change its ultimate finding that, as at 6 March 2019, the applicant had not complied with condition 8107(3)(b)… 38 As to the irrationality ground, it was submitted that: The Tribunal's decision exposes no legal error in the sense that it is one at which "no rational or logical decision maker could arrive at on the same evidence". To the contrary, it is plainly a conclusion on which "logical or rational or reasonable minds might differ". The Tribunal had conflicting evidence before it and accepted the evidence which supported a finding that the applicant's employment ceased in September 2018. Secondly, the rationality of the Tribunal's findings at paragraph 30 of its Reasons as to the inconsistency in the applicant's evidence were irrelevant in circumstances where those findings were not necessary for the Tribunal to reach the conclusion it did. The correct approach is "to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it." In this case, for the reasons stated above, it was open for the Tribunal to reach the conclusion it did. Finally, even if the Tribunal's findings as to the applicant's inconsistent evidence were "made on the way" to the Tribunal reaching the requisite state of satisfaction, those findings were in themselves rational and open to the Tribunal for the reasons stated in Part III above. (Citations omitted.) CONSIDERATION 39 In my view, the application for an extension of time should be granted, and the appeal should be allowed. 40 The critical part of the Tribunal's reasoning is that the applicant was not to be believed because it was only after it had been explained to him at the hearing that, under Condition 8107, he was obliged to have found a new sponsor within 90 days otherwise his visa may be cancelled that the applicant "then remarked that he actually also worked for several days in December 2018" and that he was "attempting to change the narrative to suit his purposes" and that his new version was "not consistent with his previous statements, or evidence from the sponsor" (emphasis added). That, together with the reference in the Fitzroy Legal Service letter being something that "indicate[d] that his employment ceased in September 2018", led the Tribunal to find that the applicant ceased employment in September 2018. 41 But on any view of the two statements and the reference, that evidence was consistent – not inconsistent – with the claim that the Tribunal regarded as something akin to recent invention. 42 It is true that the taxi driver does not say, in terms, that the applicant actually did the work referred to, but it is the preferable reading of the reference. But the two statements, it seems to me, are tolerably clear – "he (the sponsor) kicked me out and called me back a short time on the job for a couple of days" and "I returned to work" were assertions contained in the first statement. And the second statement puts dates to that return to "work[] there again" – namely, 17, 18 and 19 December 2018. In my view, it is very difficult to understand how those statements could on any view of them be read as inconsistent with his statement before the Tribunal that "he actually also worked for several days in December 2018". 43 I also accept the applicant's submission about the Fitzroy Legal Service letter. It simply does not speak to the issue of whether the applicant worked in December – it is about his claim for unpaid wages. That is made clear by the fact that the letter states that the applicant had sought assistance "with recovering unpaid wages" and was claiming underpayments in the order of $63,000. 44 And there can be no doubt about the materiality of the finding at paragraph [30] of the Tribunal's reasons – it is the crux of the factual finding that the applicant ceased employment in September 2018. And it is jurisdictional, because, as the applicant submitted, had the errors not been made, there is a realistic possibility the Tribunal could have found the applicant did comply with Condition 8107, and would not therefore have been satisfied that there were grounds to cancel the visa under s 116(1)(b), with the result that the visa would not have been cancelled. The materiality of the error makes it jurisdictional. DISPOSITION 45 Orders will be made accordingly. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan. Associate: Dated: 14 June 2023