Federal Court of Australia

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 507

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to file the amended notice of appeal handed up in Court on 21 April 2022 on or before 13 May 2022.

2.    The appeal be dismissed.

3.    The appellants pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

RARES J:

1    On 16 September 2016, a delegate of the Minister cancelled Sandeep Singh’s, the first appellant’s, temporary business entry (class UC) temporary work (skilled) (subclass 457) visa under s 116(1)(b) of the Migration Act 1958 (Cth). The second and third appellants are his wife and child. Mr Singh applied for a review of the delegate’s decision to the Administrative Appeals Tribunal.

The proceeding in the Tribunal

2    On 15 November 2016, pursuant to s 360(1) of the Act, the Tribunal invited Mr Singh to attend the hearing. Following a request from Mr Singh’s migration agent, on 5 December 2016, the Tribunal rescheduled the hearing for 18 January 2017 and issued a further invitation under s 360(1). The invitation, as issued on 5 December 2016, however, did not comply with ss 360A(1), 361(2) and (2A). That is because the letters and response to hearing invitation form merely requested Mr Singh to return the completed form within 7 days of being notified by the letter. It did not inform him, as s 361(1)(b) required, that he had 7 days after being notified of the invitation to attend the hearing, to give the Tribunal written notice that he wanted it to obtain oral evidence from a person named in the notice and that, if he did so, the Tribunal had to have regard to, but was not required to comply with, that notification (see s 361(3)).

3    Mr Singh’s agent returned the response on 12 January 2017 and in it indicated that he wished the Tribunal to take oral evidence from Maresh Sharma. The response identified Mr Sharma as a colleague of Mr Singh and, in answer to the request to describe his evidence and how it was relevant to Mr Singh’s case, the agent stated “can confirm employment with sponsoring company”.

4    On 16 January 2017 the agent emailed the Tribunal with a prehearing submission and a number of documents including:

    a notification dated 16 December 2016 from the Department that Gautom Investment Pty Ltd (the current employer) had been approved as a temporary business entry standard business sponsor for the purposes of 457 visas;

    an employee staff list, in which Mr Singh was named as equipment hire manager, and others were named as fleet manager, director, supervisor and accountant;

    a job description dated 5 July 2016 for the equipment hire manager role that stated he or she reported to the director; and

    an employment agreement dated 28 August 2016 between the current employer and Mr Singh engaging him as equipment hire manager.

5    On 18 January 2017, Mr Singh attended the hearing with his agent. The Tribunal’s hearing record sheet had been prepared in advance of the hearing. It recorded Mr Sharma’s role as witness and his mobile phone number. Handwritten entries on the hearing record sheet noted that Mr Sharma was available by phone and named the agent in her role as representative. At the foot of the hearing record sheet there was a typed note that the hearing attendant would update the sheet with additional required information, provide a photocopy to the member at the beginning of the hearing and retain the original. In different handwriting, the member completed the hearing record sheet in accordance with the direction that she fill it in and leave it in the hearing room for the hearing attendant at the conclusion of the hearing, which she noted occurred at 10:43 am on 18 January 2017. The member recorded on the hearing record sheet that Mr Singh or his representative had until 15 February 2017 to provide a written response in relation to the current employer’s application to the Department nominating Mr Singh as a person it was sponsoring for a 457 visa.

6    Mr Singh gave evidence to the Tribunal. Before the Tribunal, Mr Singh accepted that he had ceased employment for a period of more than 90 days after his former sponsoring employer had gone into liquidation in September 2015, thereby enlivening the discretion to cancel his visa under s 116(1)(b) of the Migration Act.

7    The Tribunal reviewed the role which Mr Singh said he performed at the current employer in his capacity as equipment hire manager. It noted that he had been previously employed by his former employer as a fleet manager. The Tribunal found that Mr Singh had informed it that the current employer had 6 vehicles and already employed a fleet manager. It asked him why in those circumstances the business needed to employ him. He responded that his job required him to manage the business’s provision of scaffolding for 10 clients and undertake mechanical work when trucks broke down. Mr Singh told the Tribunal that he was not aware of how long the Department would take to process the current employer’s application to sponsor him.

8    At the conclusion of the hearing, the Tribunal agreed to postpone making any decision so that Mr Singh could provide further evidence in relation to the current employer’s nomination application. It told him that it would wait until 15 February 2017 for him to provide further evidence in relation to that matter. In its reasons, it recorded that it had explained that it would not agree to wait for any other nomination application or a review of the current employer’s one if that decision were unsuccessful.

9    The Tribunal recorded in its reasons that on 13 February 2017 the agent had written to it advising that the current employer’s sponsorship nomination for Mr Singh had been submitted on 29 August 2016 but had not yet been approved and requested a further four week extension. The Tribunal wrote to the agent on 16 February 2017 and advised that it would wait until the close of business on 15 March 2017 for further evidence and would then proceed to make its decision on the evidence before it. The Tribunal found that Mr Singh had not provided any further information as at the time it made its decision on 21 April 2017. It found that its correspondence dated 16 February 2017 had made clear to him that it would proceed to make its decision on the basis of the evidence before it at any time after close of business on 15 March 2017 and, because he had not responded, it felt at liberty to make its decision on the evidence before it.

10    The Tribunal found (at par 37):

With respect to the purpose of the applicant’s stay in Australia and whether there is a compelling need for him to remain here, the Tribunal accepts that the applicant wishes to remain here to work and that he wants to bring his child to Australia. It also accepts that he has been employed by Gautom and that a nomination application, of which he was the subject, was made in August 2016. The applicant was given an opportunity to provide the Tribunal with further evidence, by 15 March 2017, regarding that nomination application. No further evidence has been provided. While the Tribunal takes into account that Gautom has agreed to sponsor the applicant, the Tribunal is not satisfied that the applicant is subject of an approved nomination to work in skilled employment in Australia. While the Tribunal accepts that the applicant wishes to remain employed in Australia because he has concerns that he will not be able to secure employment in India, it is not satisfied that this is the purpose of a Subclass 457 visa. Its purpose is to temporarily address a skills shortage. The Tribunal finds the applicant’s evidence regarding his employment with Gautom as a plant hire manager to be vague and lacking in detail. It notes from the employee staff list provided to the Tribunal by the applicant that his new employer already has a fleet manager. When it asked what he is actually doing in the business his description of his role was somewhat vague. The Tribunal has concerns as to whether he is in fact employed by his new sponsor in a skilled occupation. Overall the Tribunal is not satisfied the applicant is currently employed in a skilled occupation, as the subject of an approved nomination. It gives this factor significant weight in favour of cancelling the visa.

(emphasis added)

11    After reviewing other matters and having weighed up all the evidence, the Tribunal concluded that the appropriate decision was to cancel the visa and affirmed the delegate’s decision.

This appeal

12    Mr Singh was unrepresented at the trial before the Federal Circuit and Family Court which rejected his application for constitutional writ relief. On the appeal, counsel for Mr Singh did not seek to rely on the matters which Mr Singh had urged before the Court below or in his filed notice of appeal. Counsel drafted an amended notice of appeal which raised 2 grounds namely that:

(1)    his Honour erred in failing to find the Tribunal’s decision was affected by a jurisdictional error because it had not had regard to, or acted in a legally reasonable way, in respect of Mr Singh’s request that it call Mr Sharma as a witness; and

(2)    the Tribunal erred in failing to adjourn the hearing to enable the current employer to seek review in the Tribunal in relation to the refusal of its nomination to be a sponsor of Mr Singh.

13    The Minister opposed the grant of leave for the appellant to rely on either ground as, first, each lacked merit, secondly, granting leave would effectively turn the appeal into a trial from which there was no appeal of right and, thirdly, although he did not claim any prejudice, noted this was not sufficient to allow a new ground to be raised on appeal.

Fresh evidence on the appeal

14    In addition, Mr Singh sought to rely on the affidavit of the transcriber who annexed a transcript of the hearing before the Tribunal. I admitted the affidavit and transcript provisionally under s 57 of the Evidence Act 1995 (Cth) in order to determine whether they should be admitted as further evidence on the appeal pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth). The Minister did not suggest that he would prejudiced by admitting the transcript.

15    In my opinion, the affidavit and transcript should be admitted as further evidence on the appeal so as to enable an evaluation of the merits of ground 1: CDJ v VAJ (1998) 197 CLR 172 at 201 [109], McHugh, Gummow and Callinan JJ said of an analogue of s 27:

Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.

(emphasis added)

16    The transcript records the member saying that, if Mr Singh did not make contact with the Tribunal by 15 February 2017, she would assume that the current employer’s sponsorship application had been refused and may proceed to make the decision on that basis, but, she told him and the agent, he would need to let her know what happened in that case. The member added “you may not be able to provide the answer before that date because, if the Department hasn’t made a decision, you’ll need to ask me for more time and I’ll consider the request”.

The appellant’s submissions

17    Mr Singh argued that, on the evidence, the Tribunal was obliged to consider his request to call Mr Sharma even though it was not made within 7 days of the notification of the hearing on 5 December 2016, in accordance with s 361(3) of the Migration Act, relying on what Wigney J said in BOX16 v Minister for Immigration and Border Protection [2020] FCA 801 at [63]–[64] and in particular at [66], where his Honour said:

The Tribunal’s consideration of the applicant’s wishes [to call a witness] must be real and genuine, not just an empty gesture: Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 at [38]; AYX17 [v Minister for Immigration and Border Protection (2018) 262 FCR 317] at [48]. The Tribunal must also not, in determining whether or not to obtain oral evidence from a witness in accordance with the applicant’s wishes, act arbitrarily or capriciously and must take into account matters such as the potential relevance or importance of the proposed evidence and the sufficiency of any written evidence that may have been provided by the prospective witness: Maltsin [88 ALD 304] at [38].

18    Mr Singh argued that there was nothing to suggest that the Tribunal gave any, let alone any real and genuine, consideration to his request that it call Mr Sharma. That was because it made no reference to the request during the hearing or in its reasons, despite the hearing record sheet recording that Mr Sharma was available. He contended that the Tribunal appeared to have overlooked the request that Mr Sharma be called or, alternatively, there was no evident or intelligible justification for it not calling him. He submitted that Mr Sharma, as a colleague, could have given evidence that Mr Singh was employed in a skilled occupation that conformed to his job description and title, that could have addressed the Tribunal’s finding at par 37, namely that his evidence concerning his role as equipment hire manager was vague and lacking in detail. Mr Singh argued that by concluding that it was not satisfied that he was employed in a skilled occupation, it found, in effect, that he was not performing duties as an equipment hire manager. He contended that had it taken evidence from Mr Sharma, as he had requested, the Tribunal’s concerns in relation to the nature of his employment with the current employer may have been addressed and there was no obvious difficulty preventing the Tribunal from calling him by telephone on the number noted in the hearing record sheet.

19    In support of ground 2, Mr Singh argued that notwithstanding the abolition of 457 visas by the Migration Legislation Amendment (Temporary Skill Shortage Visa Complementary Reforms) Regulations 2018 (Cth), the Tribunal could conclude at a remitted hearing that his visa should not have been cancelled. If that occurred, he contended, and the Minister accepted, that Mr Singh would not be barred from applying for another substantive visa by force of s 48 of the Migration Act.

Consideration

20    In AYX 17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 at 331–332 [48], Tracey and Mortimer JJ said of the analogues of ss 361(3) and 363(1)(a) in Pt 7 of the Act (ss 426(3) and 427(1)(a)):

The work to be done by the second aspect of s 426(3) (namely that the Tribunal is “not required” to obtain evidence from a person named in the notice) is, in our opinion, to make clear that the Tribunal has a discretion whether or not to take evidence from a nominated person. It emphasises the nature of the power in s 427(1)(a). The only express control or condition on that discretion is that the Tribunal must “have regard to” an applicant’s wishes. In our opinion this means the Tribunal must, through inquiries of the applicant, understand why the applicant wants the Tribunal to take evidence from the nominated person, and how that person’s evidence is said by an applicant to relate to the Tribunal’s review. It is to these matters the Tribunal must give real and genuine consideration, in the way explained by Kenny and Lander JJ in Maltsin [88 ALD 304] at [38] (Spender J agreeing).

(emphasis added)

21    Their Honours said that the analogue of s 363(1)(a) conferred a wide discretion on the Tribunal, consistent with its inquisitorial function, to determine whether or not to hear from witnesses proposed by an applicant for review (at 332 [49]) and that the discretion was conditioned by a requirement that it be exercised in a legally reasonable way (at 336 [75]). They also approved what Rangiah J had said in CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 at [53]–[59], that a well-recognised function of a decision-maker hearing oral evidence is to assist him or her in determining issues of credibility and reliability of a principal witness or party (at 337–338 [80]). Tracey and Mortimer JJ also held at that it is open to the Tribunal, in an appropriate case, to decide that the evidence of an applicant for review is so compromised that hearing oral evidence of a corroborating witness would not affect the outcome, but that it is necessary for the Tribunal to exercise some caution before coming to that conclusion (262 FCR at 338 [81]–[82], 339–340 [85]–[86]), as held by Lee and Finkelstein JJ in W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449 at 450 [3].

22    It is not necessary for the Tribunal to make reference in its reasons to the disposition of a request for a medical examination or for any other investigation sought by an applicant for review under an analogue of s 363(1): Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 605–606 [31]–[33] per French CJ and Kiefel J, at 616–617 [69]–[70] per Gummow J (Heydon J and Crennan J agreed with both judgments at 623 [91] and [92]). There, Gummow J said (at 619 [76]):

First, the decision in Maltsin [88 ALD 304] concerned the obligation of the Migration Review Tribunal (the MRT) under s 361(3) of the Migration Act, the analogue of s 426(3) with respect to the Refugee Review Tribunal. Sub-section (3) of s 361 provides that the MRT “must have regard” to any notice given by an applicant, under sub-s (2) or (2A), that the applicant wishes the MRT to obtain oral or written evidence. The reasoning in Maltsin [88 ALD 304] respecting consideration of an applicant’s wishes is not relevant to the power conferred in discretionary terms by s 427(1). Indeed, the Full Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs ([2002] FCAFC 277 at [24]–[25]), when specifically addressing s 427(1)(d), concluded that there was no obligation on the Tribunal to consider whether to exercise the power there conferred.

23    In my opinion, there is no reason to conclude that the Tribunal failed to have regard to Mr Singh’s request that it call Mr Sharma as a witness. Rather, the only information which Mr Singh provided to the Tribunal was that Mr Sharma was a colleague who could confirm his employment with the current employer. There was no issue that Mr Singh was actually employed by his current employer. The issue on review was what the nature of Mr Singh’s duties were. Based on the employee staff list, which the agent provided to the Tribunal, Mr Sharma was not a senior employee or even a person named on the list. The job description identified the current employer’s director as the person to whom Mr Singh reported. It is unlikely that a subordinate employee would be able to give useful or other evidence relating to the nature of the duties which Mr Singh performed, and the response to the hearing invitation did not suggest that Mr Sharma could.

24    Moreover, at no point during the hearing, including when, towards the end of the hearing, the Tribunal raised with Mr Singh that it found his evidence about his current job to be quite vague and the member may be concerned about this, did Mr Singh or the agent suggest that Mr Sharma could support his account of what his duties as equipment hire manager involved. Nor did he or the agent suggest or enquire, at any point before the conclusion of the hearing, about the Tribunal’s intention as to whether Mr Sharma might be called. Nor did he or the agent assert to the Tribunal that Mr Sharma’s evidence could be relevant or, after the hearing, seek that Mr Sharma be called.

25    In those circumstances, it was open to the Tribunal to have regard to Mr Singh’s request to call Mr Sharma, but to proceed on the basis that taking evidence from him was unnecessary because there was no issue about the evidence which he could give based on the hearing request statement that he could “confirm employment with sponsoring company” and it did not need to refer to this in its reasons: SZGUR 241 CLR 594.

26    In addition, there is no evidence or basis to infer that there was a reasonable possibility that Mr Sharma’s evidence could have produced a different result. There is no evidence of what Mr Sharma was going to say, if anything, in addition to what was in the request to call him that could have been evidence that there was a realistic possibility that a different result could have occurred had Mr Sharma given evidence: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at 600 [39] per Kiefel CJ, Gageler, Keane and Gleeson JJ. Accordingly, in my opinion, ground 1 must fail.

27    Ground 2 must fail because at the conclusion of the hearing, the Tribunal told Mr Singh and his agent that if no contact were made with it by 15 February 2017, it would assume that the sponsorship nomination for him had been refused and it may proceed to make its decision on that basis. When the agent wrote to the Tribunal on 13 February 2017 she requested a further 4 week extension before the Tribunal made its decision and promised to provide the decision notification record to the Tribunal as soon as it had been received. The Tribunal wrote in its email of 16 February 2017 that it would wait until 15 March 2017. In fact, it waited more than a month after that before publishing its decision in circumstances that it had heard nothing further from Mr Singh or his agent. Thus, Mr Singh was on notice that the Tribunal had been prepared to grant an extension of time to receive information about the sponsorship nomination and, had indicated that if nothing further were heard, it would make its decision on the evidence before it. Mr Singh did not seek any further extension or provide the Tribunal with any further information relating to the sponsorship application.

28    The Tribunal had said in its email of 16 February 2017 that it would proceed to make its decision on the evidence before it after 15 March 2017, but in that email did not convey that it would refuse to entertain any further application for an extension of time to learn of the fate of the sponsorship nomination.

29    The particulars to ground 2 in the proposed amended notice of appeal referred to the Tribunal’s failure to allow an adjournment for his employer to appeal to the Tribunal in relation to the refusal of its sponsorship nomination of him. However, on the material in the appeal papers, the only information before the Tribunal and the Court was that the current employer’s sponsorship nomination for Mr Singh was being considered by the Department and, at the time of the Tribunal’s decision, had not been determined. I have treated the new ground 2 as being based on the failure to allow any further adjournment until the fate of the current employer’s pending sponsorship nomination was known. The Tribunal left it to Mr Singh to apply for an extension of time and had not reached the point of communicating an inflexible determination to proceed to making a decision, regardless of whether it knew the outcome of the Department’s consideration of his current employer’s sponsorship nomination.

30    In those circumstances, not having heard further from Mr Singh or his agent after 16 February 2017, it was not unreasonable for the Tribunal to make its decision on 21 April 2017.

Conclusion

31    As the proposed new grounds of appeal were fully argued, on the basis of the proposed amended notice of appeal, and there was no prejudice to the Minister in that course, in my opinion it is desirable, in the interests of justice, to grant Mr Singh leave to file the amended notice of appeal, but to order that the appeal be dismissed with costs.

Associate:

Dated:    6 May 2022