FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2017] FCA 546

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the First Respondent’s costs fixed in the sum of $4,300.

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

EX TEMPORE REASONS FOR JUDGMENT

WHITE J:

1    The appellant appeals against the dismissal by the Federal Circuit Court (the FCC) of his application for judicial review.

2    The appellant’s wife, Daljit Kaur, was granted a Student (Class TU) Higher Education Sector (Subclass 573) visa on 9 December 2014 in order to commence study in a Master of Science course at Flinders University. The appellant, who was a secondary applicant on his wife’s application, was granted a visa of the same type.

3    The appellant and Daljit Kaur arrived in Australia on 31 December 2014.

4    The appellant’s visa was made subject to Condition 8104 (Migration Regulations 1994 (Cth), Sch 8), which as then in force provided:

(1)    Subject to subclauses (2) to (6), the holder must not engage in work for more than 40 hours a fortnight while the holder is in Australia.

(2)    If the holder is a member of the family unit of a person who satisfies the primary criteria for the grant of a student visa, the holder must not engage in work in Australia until the person who satisfies the primary criteria has commenced a course of study.

(3)    If the holder is able to engage in work in accordance with subclause (2), the holder must not engage in work for more than 40 hours a fortnight while the holder is in Australia unless subclause (4) or (5) applies.

(4)    Subclause (3) does not apply if:

(a)    the visa for which the primary criteria were satisfied is:

(i)    a Subclass 573 (Higher Education Sector) visa; or

(ii)    a Subclass 574 (Postgraduate Research Sector) visa; and

(b)    the course of study is a course for the award of a masters or doctorate degree that is registered on the Commonwealth Register of Institutions and Courses of Overseas Students.

(5)    Subclause (3) does not apply if:

(a)    the visa for which the primary criteria were satisfied is a Subclass 576 (Foreign Affairs or Defence Sector) visa; and

(b)    the course of study is a course for the award of a masters or doctorate degree.

(6)    In this clause:

fortnight means the period of 14 days commencing on a Monday.

5    Subject to a qualification, the effect of Conditions 8104(1) and (3) was to limit the work in which the holder of a student visa could engage to a maximum of 40 hours per fortnight, and the effect of Subcondition (2) was to preclude altogether a member of the primary visa holder’s family from working until the primary applicant had commenced a course of study. The qualification is that Condition 8104(4) had the effect that the limit of 40 hours per fortnight did not apply to a secondary applicant after the primary applicant had commenced study in (relevantly) a Masters course.

6    The Minister’s delegate and the Administrative Appeals Tribunal (the Tribunal) accepted that Condition 8104(2) did not preclude the appellant from working once his wife had commenced an English proficiency course in early 2015. The Minister’s delegate and the Tribunal considered, however, that the appellant had breached Condition 8104(1) by working more than 40 hours per week whilst his wife was undertaking that course.

7    The circumstances giving rise to that finding are as follows. On 5 June 2015, Compliance officers of the Department of Immigration and Border Protection found the appellant working on a strawberry farm at Mount Barker. The officer who interviewed the appellant reported that, when questioned, the appellant had given varying accounts about his work, at one stage saying he had been working at the strawberry farm for 10 days starting at 7 am and finishing at 3 pm, at another stage, saying that he had been working regularly, and at another stage, saying that he had been working 30 hours per week for 10 days. The Compliance officer also reported that the employer at the strawberry farm (the grower) had said that the appellant had been working there since February or March.

8    At 10.56 am on 5 June 2015, the Compliance officer gave the appellant written notice under s 116 of the Migration Act 1958 (Cth) of intention to consider cancellation of his student visa. Ten minutes later, the officer commenced an interview with the appellant with the assistance of an interpreter over the telephone. Things then moved rapidly. At 11.30 am, the officer decided to cancel the appellant’s visa. At 11.34 am, he informed the appellant of that fact, and at 11.37 am, the officer, acting pursuant to s 189 of the Migration Act, detained the appellant.

9    Twelve days later on 17 June 2015, the appellant was granted a Bridging visa and released from detention.

10    Before that release, on 9 June 2015, the appellant applied to the Migration Review Tribunal for a review of the visa cancellation decision. That application was heard in the Tribunal which affirmed the delegate’s decision. The Tribunal member formed an adverse view of the appellant’s credibility, saying:

[23]    I did not find Mr Singh to be an impressive witness. He started off asserting he had never worked more than twenty hours a week, then said he only worked twenty to twenty two hours a week and then that during one period he worked thirty hours in ten days, or 3 hours per day. He also said he had calculated this and it was no more than 30 or 32 hours in that period. The variety of answers to a question that he knew was an issue in the proceedings led me to doubt that any answers about the number of hours he worked were truthful.

11    The Tribunal member’s reasons for affirming the delegate’s decision were as follows:

[36]    I have considered all of the information before me, but have concluded the visa should be cancelled to maintain the integrity of the work rights provided to secondary visa holders and support the obligation of visa holders to be clear about the nature of his or her work rights. There is nothing before me that can convinces me Mr Singh is required to remain in Australia to support his wife. I am not convinced that Ms Kaur would not be able to continue her study if Mr Singh is not in Australia.

12    In effect, the Tribunal member affirmed the delegate’s decision for two principal reasons: the perceived need to maintain the integrity of the work limitation condition and the absence of a material effect on the appellant’s wife if his visa was cancelled and he had to leave Australia.

13    The appellant, representing himself, then sought judicial review in the FCC. The grounds of his application were as follows:

1.    The member did not look at the facts properly. In fact there were no evidence brought in the AAT on basis of which my visa got cancelled. The AAT has made a jurisdictional error by overusing the powers vested in them by the law of this country and did not act on a legitimate reason to cancel my visa.

2.    The mere proof AAT has whilst deciding my visa was my statement and the decision record of DIBP. They did not value my statement as they said there is so much discrepancy in my statement about my working hours.

3.    So the total statement on which AAT passed the verdict was just DIBP decision. The DIBP officers made me to speak in the middle of a strawberry farm to speak to an interpreter on speakerphone in the month of June 2015. The month of June is the starting month of winter and we all know how breezy the winters are here in SA. Now please imagine and consider the impact of breeze right in the middle of strawberry garden. I was not able to hear properly and could not answer properly. It was a pure case of miscommunication. Moreover I was in the state of shock. My interview with interpreter should had happened in a room with no disturbance. The officer on duty did not perform his duty well. Looking at my English language skills I should had been given a chance to speak with interpreter in a quiet place or room. I had been denied the basic right for my defence or it was not properly delivered to me. After that officers along with four other people took me to owner's house and kept us in room. They spoke to owner in different room and through net door the owner just said he work since this month and these many hours.

4.    I would like to bring kind attention of Your Honour that why there was documentary evidence of my job has been presented by DIBP to AAT. Why AAT did not demand it from DIBP. How come the respected member came to a conclusion that I worked more than 40 hours a fortnight? If my owner had given a statement why the copy of that statement had not been provided to me?

5.    We all are humans and we make mistakes. How could DIBP simply rely that the owner is speaking truth? There were more than 70 people work for owner and there was a contractor who used to call us for work. This would have been the second time my owner saw me working for him in his fields when officers brought me there.

6.    If you made me stand in 10 people of my origin, the owner would not be in a position to recognize me even and for sure he would have no clue what my name is?

7.    Unless the things are documented how come respected member of AAT came to conclusion and affirmed the decision of DIBP? We all are humans and she said there have been discrepancies in my statement every time I gave it. Nobody asked for a written statement by the owner with documented hours? Could not there be possible discrepancies in his statement? He had more than 70 workers to handle and he did not meet us. How can he be so accurate without having any records about my working hours? Did any questions asked to him how he calculated and came to a figure of final hours of my work.

8.    The honourable member did not take these considerations into account and on her personal assumptions, rather than using law properly, cancelled my visa leading my life to very critical condition. She did not use provisions of law fairly in my case and overlooked the facts of case.

14    In summary, the appellant complained that the Tribunal had not received any evidence, other than his own statements to the Tribunal, during the course of the hearing, that the Tribunal member should not have acted on the records of the Department for a number of reasons, which included the less than conducive circumstances in which the interview on 5 June 2015 had taken place, the limited contact which he had had with the strawberry grower, with the prospect that the grower may well have confused him with somebody else, that the evidence before the Tribunal was incomplete or unreliable, and that there was an absence of confirmatory documentary evidence.

15    The FCC Judge reviewed the Tribunal’s reasons in some detail and concluded that the Tribunal’s decision was not affected by jurisdictional error: Singh v Minister for Immigration [2016] FCCA 3053 at [26].

16    The grounds of the appellant’s appeal to this Court are as follows:

1.    Your Highness in FCCI (sic) has overlooked the fact that the Tribunal member decided my review application based on “Guess Work”.

2.    In coming to [the] decision in [the] AAT, the Presiding member stated in point 23 of the decision that she was in doubt in ascertaining the number of hours I worked per week and whether I was in breach of my visa condition.

3.    If Presiding member was in doubt then why did she not clear her doubts?

4.    Her decision in the absence of clear facts, the guess work and wrong assumption that lead to a wrong decision has [had] a devastating effect on my life.

17    It is to be remembered that it is incumbent on an appellant in an appeal of the present kind to show error in the judgment appealed from: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. It is also to be remembered that it is not the function of this Court to engage in a general merits review of the decision in the Tribunal. This Court, like the FCC, does not have the jurisdiction or power to engage in a review of that kind. The task of the FCC was to consider whether the Tribunal’s decision was affected by jurisdictional error because, looking at it very generally, the Tribunal had not undertaken its decision-making in the way required by the law. The function of this Court on appeal is only to decide whether the FCC was in error in the decision which it made on that question.

18    The expression “Guess Work” which appears in the appellant’s first ground of appeal is his own characterisation of the Tribunal’s decision and, in my opinion, is not an accurate characterisation. The Tribunal member did not engage in guess work. Instead, the member noted the different answers which the appellant had given when questioned about the extent of his work. There was no suggestion that the Tribunal member did not record accurately the appellant’s answers. It is apparent that it was the appellant’s own changing evidence which gave rise to some uncertainty in the Tribunal member’s mind as to the reliability of his account of the extent to which he had worked.

19    It was for the Tribunal member to make the assessment of the evidence which was before her and, in [20] of her reasons, the Tribunal member made a positive finding that the appellant had breached Condition 8104 by working more than 40 hours per fortnight.

20    In his submissions today, the appellant submitted that the Tribunal member did not have evidence to support her findings. It is true that the Tribunal member did not have any oral evidence from a witness other than the appellant himself, but that does not mean that the Tribunal did not have evidence. The member did have the documentary evidence contained on the Department’s file. In addition, the Tribunal member had evidence in the form of the appellant’s own admissions about his work. It may have been preferable for the Tribunal member to have had other evidence but it cannot be said that the Tribunal member did not have evidence on which to base her findings.

21    Contrary to the appellant’s submissions, this was not a case in which it could be said that a failure by the Tribunal member to make her own inquiries about the extent of his work constituted a denial of procedural fairness or a failure to undertake the statutory task of review. In particular, this was not a case of the kind to which the High Court referred in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25] so that it could be said that a failure by the Tribunal to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, constituted a failure to conduct the review required by the Act.

22    Generally speaking, it is for applicants to put before the Tribunal the evidence and submissions they wish to support their claim: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, at [187]. A recent application of that principle is seen in the decision of Logan J in Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264, at [20]. The appellant had not adduced evidence such as wage records, evidence of earnings or the like to indicate that he had not worked more than 40 hours per fortnight.

23    Grounds 1 and 2 in the Notice of Appeal refer to [23] of the Tribunal’s reasons. In my opinion, the appellant misunderstands the purport of the Tribunal member’s reasons in [23]. The Tribunal member was not there recording her own doubts about the extent of the appellant’s work, but instead her doubts about the reliability of the appellant’s evidence and the reasons for those doubts.

24    On my assessment, the effect of the first four grounds of appeal to this Court is to invite this Court to engage in a form of merits review of the Tribunal decision. As I have explained, that is not the function of this Court on appeal, nor was it the function of the FCC at first instance. Those grounds do not suggest any basis upon which this court could conclude that there had been an error by the FCC.

25    In the fifth ground of appeal, the appellant referred to the decision of the FCC in Jayshree Enterprises Pty Ltd v Minister for Immigration [2016] FCCA 2825 and submitted that this was a recent case in which guess work of the Tribunal had been deemed to be jurisdictional error. He contended that the same approach should be adopted in his own case. In my opinion, there are at least two reasons why that contention should not be accepted. First, the FCC Judge in Jayshree Enterprises used the word “guestimate” to describe a finding of the Tribunal which he considered was not soundly based in the evidence. That is different from the present case because there was evidence upon which it was open to the Tribunal Member to conclude that the appellant was working more than 40 hours per fortnight. Secondly, and in any event, the decision of the FCC in Jayshree Enterprises was overturned on appeal: Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264.

26    I accept that any error made by the Tribunal Member as to the number of hours worked by the appellant even if more than 40 hours per fortnight, is a matter which may have had some bearing on the exercise of the discretion to affirm or not to affirm the visa cancellation. However, any such error would be an error within the Tribunal’s jurisdiction and not such as to establish jurisdictional error of the kind which would permit either the FCC or this Court to intervene.

27    One cannot help but have some sympathy for the situation in which the appellant and his wife are now placed. If the appellant’s wife is to continue her studies in Australia, then there will necessarily be a separation of the appellant from his wife on his return to India. It is not difficult to accept that that will cause difficulties for each of them. However, this is not a matter that was overlooked by the Tribunal member, as [36], to which I referred earlier, shows that this was a matter expressly addressed by her.

28    For the reasons I have now given, I have not been able to identify any error by the FCC which would justify this Court on appeal overturning the FCC decision. Accordingly, the appeal is dismissed.

Associate:

Dated:    18 May 2017