FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2018] FCAFC 162

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellant appeals from a decision of the Federal Circuit Court of Australia (the primary judge) that dismissed an application for judicial review of a decision of the then Migration Review Tribunal (the Tribunal) made on 19 June 2015 by which the Tribunal affirmed a decision made by a delegate of the first respondent (the Minister) to cancel the appellant’s Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa (the visa) under s 137Q of the Migration Act 1958 (Cth) (the Migration Act).

2    The appellant argued five inter-related grounds of appeal in this court, the fifth of which was raised for the first time at the hearing. The grounds are that the primary judge erred:

(1)    in not finding that the Tribunal had breached s 359A of the Migration Act in relation to the email from the appellant’s sponsor;

(2)    in not finding that the appellant’s husband was an applicant before the Tribunal;

(3)    in refusing leave to join the appellant’s husband as a party to the proceeding;

(4)    in not finding that s 360 of the Migration Act had been breached in respect of the appellant’s husband;

(5)    because the appellant’s husband had standing to seek review of the cancellation decision made in relation to his wife because, by s 347(2)(a) a “non-citizen who is the subject” of a decision that is reviewable pursuant to s 338(3) may apply for review.

3    The Minister objected to leave being granted to raise (proposed) ground 5 because it had not been raised before, was not developed in argument, and had no prospects of success.

The facts

4    The appellant is a citizen of Nepal. On 18 January 2013, she applied for the visa. It was granted on 20 June 2013, which permitted her to commence employment as a hairdresser with her sponsor, Bathurst Hair and Beauty Pty Limited (the sponsor).

5    The appellant’s husband, Mr Dhaubhadel, was the holder of a subclass 187 (Regional Sponsored Migration Scheme) visa. As the regulation under which the visa was granted makes clear, family members do not need to meet the primary criteria for a visa in circumstances where their visa is dependent on their familial relationship with the primary visa holder. The description in Schedule 2 of the Migration Regulations 1994 (Cth) of the Regulation Subclass 187 – Regional Sponsored Migration Scheme provides (and provided at the relevant time) as follows:

187.1 Interpretation

…

187.2 Primary criteria

Note: The primary criteria for the grant of a Subclass 187 visa include criteria set out in streams.

If an applicant applies for a Subclass 187 visa in the Temporary Residence Transition stream, the criteria in Subdivisions 187.21 and 187.22 are the primary criteria for the grant of the visa.

If an applicant applies for a Subclass 187 visa in the Direct Entry stream, the criteria in Subdivisions 187.21 and 187.23 are the primary criteria.

…

The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

All criteria must be satisfied at the time a decision is made on the application.

(Emphasis added.)

6    On 19 December 2013, the director of the sponsor wrote an email to the Minister’s department in these terms (the dob in letter):

Business Name: BATHURST HAIR AND BEAUTY PTY LIMITED

Nomination Application ID: EGO1SREV89

File number: BCC2013/1351

Client Name: BINU DHAUBHADEL SINGH

Date of birth: 27 July 1984

Date of Visa Application: 18 January 2013

File number: BCC2013/94780

Transaction Reference Number: EGO0NN9EEG

Visa Application Receipt Number: 130118166761

Please note the employment for Mrs Binu Singh has been terminated due to non-compliance with terms and conditions of the employment contract. Binu has not joined the company and had no intention of joining. She is not responding to directors call to join and is not communicating. She has been advised by someone in DIAC that she does not have to join or is compelled to work in the region.

Company has terminated her employment.

Thanks & regards

Priya S

Director

Bathurst Hair & Beauty Pty Ltd

131a Howick St, Bathurst NSW 2795.

(Errors in original.)

7    On 26 May 2014, a representative of the department sent to the appellant a Notification of Intention to Consider Cancellation (NOICC) informing her, among other things, that “[i]t has come to my attention that you never commenced your employment with your nominating sponsor for your … [visa]”, and that she had 28 days to respond, and to provide reasons as to why the visa should not be cancelled.

8    On 23 June 2014, the appellant emailed her response to the NOICC, together with a number of attachments. She said, among other things, that she had started working for the sponsor at the salon from 1 July 2013, but stayed in Sydney, not Lithgow, in regional New South Wales, where the hair salon carried on business. The appellant also provided evidence from third parties attesting to the fact that she had worked at the salon until November 2013 when, the appellant said, she stopped work because she had become pregnant and was unwell as a result.

9    The appellant also made reference to the dob in letter in her response to the NOICC in these terms (errors in the original):

Even being aware of the fact that I worked in the salon until November and I was on maternity leave after that, Priyanka the director of Bathurst Hair and Beauty…made faulty complain against me to Immigration without giving me any notification…Only after getting second letter from immigration I came to know that she complained against me that I haven’t commence work after getting my permanent residence…

10    She also said in her response to the NOICC, in substance, that she did not in truth receive a salary, and that the money recorded as having been deposited in her bank account by the sponsor by way of salary was in fact her own money, which she had paid to the sponsor and which it then purported to pay her as her salary.

11    She also made detailed submissions about having paid to “Jaya” or “Jai”, a friend or relative of the owners of the salon, $26,000. She explained (errors in the original):

In the beginning, I thought it might cost me $40,000 for immigration and lawyer fee. But as I came to know that the immigration and lawyer fee would not cost that much because I make all the immigration and lawyer payment by myself to [the migration agent]. I asked Priyanka [the director who wrote the “dob in” letter] and Bobby [the other director] said that they had sponsored me so they want that money from me. Even after getting my permanent residency they keep asking me for money. They threaten me that if I don’t pay them money they will close the salon and cancel my visa. As I got no option I had to pay them.

12    She also said:

They always threaten me that they can cancel my visa so I was scared. And I told to pay them slowly because I haven’t got money to pay them and I refused to pay GST and rent. But they didn’t care about that. They didn’t see that although I was pregnant I was working there and operating the salon. They only want money and keep asking me more and more and were harassing me. Since I didn’t pay them when they asked for, they thought I won’t pay them so they complained me in the immigration. I became their victim.

13    On 4 July 2014, the Department of Immigration and Border Protection wrote to the appellant informing her that her visa had been cancelled on the basis that a delegate of the Minister considered that there was a ground for the cancellation of her visa under s 137Q(1) of the Migration Act, because she did not commence employment within 6 months of the grant of her visa.

14    The letter also said that “As your visa has been cancelled, any family unit members (for example a spouse or dependent children) who hold visas because they were members of your family unit, have had their visas automatically cancelled.”

15    On 8 July 2014, the appellant applied to the Tribunal to review the delegate’s decision. The application for review attached a copy of the delegate’s decision record. Relevantly, the decision record provided:

The visa holder is required to commence employment within 6 months of the grant of the visa. Not only has the visa holder not commenced her employment with her sponsor, based on her own submission, she has also colluded with the sponsor to falsify her employment record by giving the in order for it to be paid back to the visa holder as salary.

According to the visa holder, the sponsor has requested $40,000 to facilitate the application; and of the RSMS visa, the visa holder submitted that she paid $26,000 to the sponsor. In my view the visa holder was aware of the arrangement she entered into, and I find it unlikely that the visa holder did not have any concerns when informed of the $40,000 price. The visa applicant did not seek a second opinion in relation to the application with a registered migration agent or the department, where visa application charge information are readily available on the website. Furthermore, the visa holder has not made any complaints to the department or the industry regulatory bodies when she stated she was not receiving wages for her work at the sponsor. In my view, this is out of the ordinary for a legitimate employee, as is her admission that she colluded with the sponsor to falsify salary payments. Having considered the evidence available to me, I place great weight in this as a reason for cancelling the visa.

…

Based on the visa holder’s submission, it appears that the visa holder and the sponsor were in an arrangement that the visa holder had to pay the sponsor for the sponsor not to report the non-commencement of the employment. When the visa holder failed to pay the sponsor to continue their arrangement, the sponsor has reported the visa holder to the Minister for non-commencement of employment. Therefore I place significant weight in this as reason to cancel the visa.

…

It appears to me that rather than taking the official and reasonable approach such as contacting Fair Work Australia or the Department of Immigration, to make [a] complaint against the sponsor’s conduct, the visa holder has elected to deal with the sponsor on all occasions by paying the money. This suggests to me that the visa holder is aware of her arrangement with the sponsor, paying money to falsify employment records for the purpose of obtaining the RSMS visa. Therefore, I place significant weight in this as a reason to cancel the visa.

16    On 2 September 2014, Parish Patience, Immigration Lawyers, wrote to the Deputy Registrar of the Tribunal confirming that they had instructions to act for the appellant and for her husband.

17    On 17 September 2014, the solicitors sent a number of documents to the Tribunal, including a submission on behalf of the appellant, which included the following (errors in the original):

Based on the evidence provided hereof, we submit that the position of [salon] manager is genuine, where it was genuinely available at the time when Ms Singh approached the sponsoring employer for employment until Ms Singh was forced to leave employment. Further there are clear evidences that Ms Singh did commence work for the sponsoring employer, the email exchanges between the owner of the Salon certainly confirming that the Ms Singh was working after and within the 6 months of visa grant, the employer also transferred on two occasion pay to Ms Singh, clearly admitting the fact Ms Singh started employment. Even if Ms Singh did not start employment, the fact that the employer made payment clearly demonstrating that the employer has not been honest with the department and fabricated evidence for the purposes of the visa application. We thus submit that any and all of the materials provided by the sponsoring employer to the department are likely to be falsified and should not be relied upon.

18    The solicitors also included a statement by the appellant, which included the following (errors in the original):

I struggled and could not meet the sponsor growing payment demands. As I had feared, the sponsor had threatened, she eventually reported the Department of Immigration by giving wrong information saying that I never started the work which is totally untrue.

…

I [truly] regret for trusting the sponsor as I had no idea about her evil plan. I have been a victim of sponsor’s lies who took advantage on my visa status. As I was not receiving any salary for my work, I asked for salary for the work I was doing but the sponsor said she can’t pay the wages as the business was not doing well. She instead told me that she will withdraw her sponsorship application if I keep asking for salary. She said I must keep funding her for the visa. Because I was very scared, I paid money into her account and with that money she paid electricity, council, some of my salaries in the beginning. Later on she said I need to pay her cash instead as I think she was a bit worried if someone complained about this matter. Then I started paying her cash money.

19    The application to the Tribunal for review had also listed the appellant’s husband as an “applicant.” The Tribunal also acknowledged “the applications”, although it later (on 5 August 2014) invited only the appellant to attend a hearing before the Tribunal scheduled for 19 September 2014. The “Response to Hearing Invitation” was returned, signed by the appellant. It stated that the appellant would call her husband, who “was dependant applicant (sic) of my visa application.”

20    The appellant appeared before the Tribunal on 19 September 2014 and 14 November 2014 to give evidence and present arguments. For reasons that are immaterial, the hearing on 19 September 2014 did not deal with any substantive issue. The substantive hearing took place on 14 November 2014. The transcript of the hearing was in evidence. The appellant was represented by a lawyer or a migration agent, it is not clear which. The appellant’s husband did not give evidence, but was there, as the appellant told the Tribunal member, as “moral support.”

21    At the commencement of the hearing, the Tribunal member told the appellant that she accepted that she had commenced work at the salon, as follows:

Alright, just so it’s clear I do accept that you worked at Hairbiz, so I want that to be on the record. This was prior to your being granted the subclass 187 visa but you know I accept that evidence.

…

I’ve seen evidence in the terms of I think just a written statement and a statutory declaration and I believe there is a payment summary, I accept that. Alright what I have concerns about is your work with the Bathurst Salon.

The Tribunal’s reasons

22    The Tribunal concluded that the decision to cancel the appellant’s visa pursuant to s 137Q of the Migration Act should be affirmed.

23    Section 137Q of the Migration Act provides:

Cancellation of regional sponsored employment visas

Employment does not commence

(1) The Minister may cancel a regional sponsored employment visa held by a person if:

(a) the Minister is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations; and

(b) the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that period.

Employment terminates within 2 years

(2) The Minister may cancel a regional sponsored employment visa held by a person if:

(a) the Minister is satisfied that:

(i) the person commenced the employment referred to in the relevant employer nomination (whether or not within the period prescribed by the regulations); and

(ii) the employment terminated within the period (the required employment period) of 2 years starting on the day the person commenced that employment; and

(b) the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period.

24    In light of the grounds of appeal, it is not necessary to rehearse the Tribunal’s reasons in detail. Relevantly, the Tribunal recorded the content of the dob in letter, save that it did not record the last sentence of the principal paragraph of that letter, namely “She has been advised by someone in DIAC that she does not have to join or is compelled to work in the region.” Paragraph [9] of the Tribunal’s reasons read as follows:

Information in the Department’s file is that on 19 December 2013 the Department received an email from the sponsor, Bathurst Hair and Beauty Pty Limited (the Bathurst salon), that the applicant’s employment was terminated due to non-compliance with the terms and conditions of the employment contract. “Priya S”, director, stated that the applicant has not joined the company and had no intention of joining. She is not responding to “directors call to join and is not communicating”. The company has terminated her employment.

25    The Tribunal set out in detail the content of the appellant’s written submissions and the attachments, the submissions made by the appellant’s representative, and the evidence given by the appellant at the hearing (at paragraphs [10]-[115]). That evidence included the appellant’s admission that she was aware that “she was involved in some sort of fraud” at [74]. The appellant does not take issue with any part of the Tribunal’s reciting of the claims and the evidence, including that admission.

26    The Tribunal accepted the appellant’s evidence that she did commence working at the salon in Lithgow within six months of the date of the grant of the visa and that, having commenced work on 1 July 2013, she worked (albeit irregularly) until November 2013. Having accepted the appellant’s evidence in that regard, the Tribunal turned to the next issue arising under s 137Q of the Migration Act, namely whether the appellant’s employment terminated within the period of two years starting on the day the applicant commenced her employment.

27    The Tribunal did not accept the appellant’s evidence that she went on maternity leave in November 2013, and found that by electing not to attend work in Lithgow, her employment was terminated, either by her or the sponsor.

28    The Tribunal further found that the appellant never intended to move to Lithgow and that it had “significant concerns about the [appellant’s] honesty.” The Tribunal findings included the following:

124.    The Tribunal also has significant concerns about the applicant’s honesty. The Tribunal does not accept that the applicant intended to work genuinely for the sponsor or that she intended to return to work after she gave birth …

125.    Whilst the applicant has stated that she is telling the truth, the Tribunal finds that it was not until the Department was informed by Priyanka Singh of the applicant’s failure to attend her work and the NOICC was issued to her that the applicant revealed information about the money she had given to the sponsor. The Tribunal is satisfied that the applicant colluded with the sponsor to defraud the Department. The Tribunal finds that the applicant did not intend to work in Lithgow for the sponsor for the required period of two years after she was granted permanent residence. The Tribunal is satisfied that the applicant was a party to the fraud. She knew that she was doing the wrong thing by paying money to the sponsor and the sponsor would then pay her a wage.

126.    The applicant stated that her role was salon manager and she was responsible for opening and closing the salon. Yet she also gave evidence that she arrived at work on one day at 11am. This further confirms that the applicant never intended to work full time for the sponsor in regional Australia for the period of two years after being granted the visa.

127.    As well, the applicant did not mention that there were threats from the employer before she received the NOICC from the Department in May 2014 that they may cancel the visa. The Tribunal finds that the applicant was not honest with the Department before the NOICC was issued to her. Although the applicant claimed that she did not know her rights and she was in a vulnerable position and was taken advantage of by her employer and was scared of the employer, the Tribunal does not accept her claims that she was taken advantage of by her employer and to have been innocent of involvement in fraudulent conduct.

128.    The Tribunal is satisfied that the applicant was a willing party to the fraud. Her evidence was that she needed to cooperate with Priyanka Singh and keep funding her, otherwise the owner would withdraw the applicant’s application. The Tribunal finds that the applicant was not honest in her dealings with the Department.

129.    This is not the case of an innocent person who has been defrauded of her wages by an employer. The Tribunal is satisfied that this applicant knew that what she was doing. She was prepared to pay large amounts of money to the sponsor to gain a visa to which she was not entitled because she never intended to work for the sponsor in regional Australia for two years. The applicant speaks good English and did not request or need an interpreter at the hearing. Therefore she was capable of seeking legal advice or approaching the Department if she had concerns about the conduct of the employer. The Tribunal finds that the applicant was a party to the fraud. She was prepared to dishonestly obtain a benefit, permanent residence, by deception.

29    The appellant does not challenge these findings, nor any of the Tribunal’s findings on issues of discretion, which are set out at [138]–[150] of the Tribunal’s reasons, and to which it is unnecessary to make any reference.

The decision of the primary judge

30    The primary judge dismissed the appellant’s application for review and refused an application that the appellant’s husband, Mr Dhaubhadel, been included as a party to the proceeding pursuant to rr 11.01 and 11.02 of the Federal Circuit Court Rules 2001 (Cth).

31    The primary judge dismissed the joinder application. The sole ground of appeal was that the Tribunal failed to comply with s 359A of the Migration Act because it “failed to invite the [appellant] to comment on the information in the [dob in letter]… that would have been a reason or part of the reason for affirming the decision of the delegate to cancel the [appellant’s] visa.”

32    Section 359A of the Migration Act provides:

Information and invitation given in writing by Tribunal

(1) Subject to subsections (2) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or

(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

(4) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c) that is non-disclosable information.

(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

33    The primary judge held that, in substance, given that the Tribunal member told the appellant at the outset of the hearing that she accepted what the appellant said namely: that the appellant had, despite what the dob in letter alleged, in fact commenced work at the salon in July 2013; that she was no longer employed there; and that she and the sponsor had colluded to defraud the Minister’s department, then the “information” contained in the dob in letter was information that the appellant “gave for the purpose the application for review” and information that she gave “during the process that led to the decision that is under review” within the meaning of s359A (4)(b) and (ba) (see the decision of the primary judge at [107]-[112]).

34    The primary judge dismissed the application for joinder of the appellant’s husband on the ground that his visa was not cancelled by the delegate, but by operation of s 137Q of the Migration Act. Accordingly, there was no relevant “decision” capable of being reviewed. Hence, the Federal Circuit Court of Australia had no jurisdiction to hear any case sought to be brought by the appellant’s husband (citing Farah v Minister for Immigration and Citizenship [2011] FCA 185, at [2] and [3], per Jessup J).

35    For the reasons given below, in our view, the primary judge was correct to dismiss the application for review and not to allow the joinder.

The dob in letter - Ground 1

36    There is no substance to this ground of appeal. It turns on whether the Tribunal was obliged to give to the appellant a copy of the dob in letter. However, no obligation to do so ever arose, under s 359A of the Migration Act or otherwise, because the appellant knew from before June 2014 that the director of the sponsor had informed on her by telling the Department that she had not commenced work. She said so in her 23 June 2014 response to the NOICC, and in her 17 September 2014 statement to the Tribunal. Furthermore, her solicitor submitted, in his written submission to the Tribunal of the same date, that “any and all of the materials provided by the sponsoring employer to the department are likely to be falsified and should not be relied upon”. It was in response to that very claim that she had not commenced work that the appellant produced a number of pieces of evidence that established that she had commenced work.

37    Further, the Tribunal member told the appellant at the commencement of the hearing that she accepted the appellant’s evidence that she had, in fact, commenced employment at the salon. It must follow that the allegation in the dob in letter that the appellant “ha[d] not joined the company and had no intention of joining” and was “not responding” to “communications” from the directors were not allegations that, in light of the evidence she had produced, the Tribunal was going to accept. And the statement in the dob in letter “[s]he has been advised by someone in DIAC that she does not have to join or is compelled to work in the region” was not relevantly adverse to her. If anything, it reads as an (admittedly odd) exculpatory factor. But, in any event, the Tribunal had already been invited by the appellant’s solicitors not to accept anything that the employer said.

38    It follows, as the Minister’s counsel submitted, that the appellant has not identified any point in the conduct of the Tribunal of its review where the Tribunal considered that the information in the dob in letter would be the “reason or part of the reason for affirming the delegate’s decision” with the meaning of s 359A(1)(a). The case that the Tribunal did not comply with s 359A, therefore, fails at the first hurdle.

39    But in any event, the information contained in the dob in letter was, as the primary judge correctly found, information that the appellant herself gave within the meaning of s 359A(4)(b) and (ba), as her responses and submissions described above make abundantly clear.

40    Ground 1, therefore, must fail.

The role of the husband – Grounds 2, 3 and 4

41    The appellant contends that the primary judge ought to have joined Mr Dhaubhadel as a party to the proceeding in the Federal Circuit Court of Australia on the ground that the cancellation of her visa was a “determination” which was the “ultimate or operative determination” of her husband’s rights.

42    The appellant accepts that the submission is contrary to the decision of Jessup J in Farah v Minister for Immigration and Citizenship [2011] FCA 185 in relation to the relevantly identical provisions contained in s 140 of the Migration Act. In that case, Jessup J held that a dependent visa is cancelled by operation of law, not by any determination or decision. The appellant’s counsel accepts that, in order to make good grounds 2, 3 and 4, this court would have to find that the following passage from Farah v Minister for Immigration and Citizenship [2011] FCA 185 was wrongly decided:

The second, third, fourth and fifth appellants were also applicants in the Federal Magistrates Court. Their visas depended upon their status as family members of the first appellant. Their visas were cancelled not by the delegate under s 109, but by operation of s 140 of the Act itself. Although they purported to apply to the Tribunal for a review of the delegate’s decision to cancel their visas, the Tribunal held, rightly in my view, that it did not have jurisdiction to review the operation of s 140 of the Act. Both the proceedings before the Tribunal and the application in the Federal Magistrates Court were concerned wholly with the circumstances of the first appellant, and it is likewise those circumstances which should govern the disposition of the present appeal. Unless that appeal is successful, the visas of the other appellants will remain cancelled by the operation of s 140.

43    Section 137T of the Migration Act provides (and provided in 2014) as follows:

Cancellation of other visas

(1) If a person’s visa is cancelled under section 137Q, a visa held by another person because of being a member of the family unit of the person is also cancelled.

(2) The cancellation under subsection (1) of this section is set aside if the cancellation of the person’s visa under section 137Q is set aside under Part 5.

44    Section 338(3) of the Migration Act, at the relevant time, provided for certain “decisions,” as defined, to be reviewable by the Tribunal under Part 5 Division 2 of the Migration Act, subject to various exclusions. It provides as follows:

Decisions reviewable by Migration Review Tribunal

…

(3) A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is an MRT-reviewable decision unless the decision:

(a) is covered by subsection (4); or

(b) is made at a time when the non-citizen was in immigration clearance; or

(c) was made under subsection 134(1), (3A) or (4) or section 501; or

(d) was made personally by the Minister under section 109 or 116 or subsection 140(2).” [sub-section (d) was added on 11 December 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (No. 129, 2014)].

45    The appellant contends that the cancellation of the appellant’s visa by the delegate involved one decision which “by direct finding and by consequence, encompassed” her husband. It was also contended that s 137T (and presumably s 338(3)) of the Migration Act) constitute “remedial” provisions, which should be construed beneficially, such that they “should be construed so as to give the fullest relief which the fair meaning of its language will allow” (citing Bull v The Attorney-General for New South Wales (1913) 17 CLR 370, 384 per Issacs J).

46    The appellant also pointed to the different language used in a related provision contained in s 137J of the Migration Act, which deals with the automatic cancellation of visas of non-complying students. In particular, s 137J(2) speaks of relevant visas being cancelled “by force of this section” – language which the appellant accepts makes clear that the provision cancels the visa by conduct of the applicant without any “decision” being made by anybody to effect that cancellation: see Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300.

47    In our view, however, the reasoning in Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300 does not assist the appellant. In that case, Lander J at [8] and [9] said:

Section 137J of the Migration Act 1958 (Cth) (the Migration Act) applies if a notice is sent to a non-citizen under s 20 of the ESOS Act. The giving of a notice under s 20 of the ESOS Act activates the provisions of s 137J(2) of the Migration Act, which has the effect of cancelling the student’s visa by force of the section at the end of the 28th day after the day that the notice specifies as the date of the notice unless the student complies with one or other of paragraphs (a) or (b) of subsection (2) of s 137J. Section 137J(2) provides:

(2) The non-citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:

(a) the non-citizen complies with the notice; or

(b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:

(i) in Australia; or

(ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette;

makes himself or herself available to an officer for the stated purpose of explaining the breach alleged in the notice.

It is the subsection itself which cancels the non-citizen’s visa. Nothing needs to be done by the Minister or any other party to effectuate the cancellation of the non-citizen’s visa.

48    Later in his reasons in Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300, Lander J returned to the relevant question and said at [54]-[57]:

… [Section] 137J is, in my opinion, unambiguous. It operates to cancel the non-citizen’s visa where a notice has been sent to a non-citizen under s 20 of the ESOS Act. As I have already said, no decision is made to cancel a visa. Section 137J itself operates to cancel the visa.

There is nothing, in my opinion, in the Act … which would support the applicant’s contention that any administrative decision of any kind is made when s 137J applies by reason of a notice having been given under s 20 of the ESOS Act to a non-citizen. There is no administrative decision to be made. Section 137J(2) operates to cancel the non-citizen’s visa. The only decisions which have to be made relate to the Minister’s power to revoke the cancellation effected by s 137J(2).

Section 137K allow a non-citizen ‘where visa has been cancelled under s 137J’ to apply to the Minister for revocation of the cancellation. That section also recognises that the cancellation is effected by s 137J not by any administrative decision. The Minister may revoke the cancellation for any of the reasons in s 137L(1) of the Migration Act. The Minister may also revoke cancellation on her or his own initiative: s 137N of the Migration Act. If the Minister does revoke the cancellation under s 137L or s 137N ‘the visa is taken never to have been cancelled under section 137J’: s 137P(1) of the Migration Act.

The whole scheme of this subdivision of the Migration Act is to provide for a statutory form of cancellation of visas which does not require any administrative decision. The scheme is designed to avoid the requirement for any administrative decision and thereby any review of that decision. The Minister’s decision making only extends to considering whether the statutory cancellation should be revoked.

(Emphasis added.)

49    The contention sought to be advanced in this appeal is that “[t]he situation under s 137T is different as it is dependent upon the decision to cancel the primary visa under s 137J.”

50    In our view, Farah v Minister for Immigration and Citizenship [2011] FCA 185 (in respect of s 140) and Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300 (in respect of s 137J) were correctly decided and there is no relevant distinction to be drawn between a visa which is “cancelled by force of [the] section” and one which is “also cancelled” within the meaning of s 137J (that is, “[i]f a person’s visa is cancelled under section 137Q, a visa held by another person because of being a member of the family unit of the person is also cancelled”). The former is a more economical use of words, but the sections mean the same thing. In our view, to adopt what Lander J said in Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300, the whole scheme of each of those provisions is to provide for a statutory form of cancellation of visas which does not require any administrative decision. The scheme is designed to avoid the requirement for any administrative decision and thereby any review of that decision.

51    Further, the automatic nature of the cancellation is highlighted by s 137T(2), which provides that if the cancellation of [in this case, the appellant’s] visa under s 137Q is set aside, then the cancellation of [in this case, the husband’s] visa under s 137T is also set aside. That, it seems to us, makes irresistible the conclusion that both the cancellation under s 137T(1), and the setting aside of the cancellation under s 137T(2), are effected by operation of law, not by any determination or decision in relation to the holder of the dependent visa. It is true that s 137J(2) uses a different expression (viz, cancellation “by force of this section”) but, in our view, that does not affect the clear meaning of the words used in s 137T.

52    The appellant also points to the fact that the appellant’s husband was named as an applicant in documents filed with and accepted by the Tribunal as a reason for which he should have been joined. But that must be irrelevant. To suggest otherwise, in the face of the clear language of the statute, would (quite apart from anything else) impermissibly allow form to triumph over substance.

Proposed ground 5

53    We would not grant leave to add proposed ground 5. As the Minister submitted, it had not been raised before and it has no prospect of success.

54    Counsel for the appellant submitted that her husband would be “subject to the decision” within the meaning of s 347(2), but this submission faces the same insuperable hurdle as grounds 2, 3 and 4 – there is no “decision”.

55    Counsel submitted that the phrase “subject to the decision” should be construed to mean that “because the consequence of the decision was that the husband’s visa was cancelled, this meant that he was subject of the decision as that phrase would ordinarily be understood” in the decision of the Full Court in SZGSI v Minister for Immigration and Citizenship (2007) 160 FCR 506. However, it decided no such thing.

Regulation subclass 187

56    We should deal with one other point. During oral argument, the court asked counsel for the Minister to clarify the terms of the regulation under which the appellant’s husband’s visa was granted. By leave, counsel submitted a brief supplementary submission, setting out the regulation (extracted at [5] above). As counsel submitted, the regulation makes clear that the husband did not have to meet the substantive criteria for the grant of the appellant’s visa, save for the secondary criteria which include, for example, the public interest criteria set out in Subdivision 187.213. As counsel for the Minister submitted, and we agree, “[t]his is entirely consistent with the scheme of cancellation by operation of law that is provided for by s 137T, referring in turn to decisions made in relation to the primary visa holder by reference to s 137Q”.

57    In his brief post hearing submission, counsel for the appellant sought to contend otherwise. He submitted that “the visa criteria provide that compliance with the primary criteria by one member of the family unit creates compliance with the primary criteria by the other members of the family unit” and that if a family member’s visa is cancelled, it is “cancelled as a consequence of the decision to cancel the visa of the person who met the primary criteria”. In our view, that submission highlights the fact that the scheme envisaged by the regulation is entirely consistent with the relevant statutory scheme of the Migration Act, viz to provide for a statutory form of cancellation of visas which does not require any administrative decision.

58    For those reasons, we would dismiss the appeal with costs.

Associate:

Dated:    27 August 2018