|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Federal Court of Australia |
Last Updated: 24 February 2005
FEDERAL COURT OF AUSTRALIA
Poskus v Minister for Immigration & Multicultural & Indigenous Affairs
RYTIS
EUGENIJUS POSKUS and LINA POSKIENE -v- MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
V 834 of 2003
RYAN J
22 FEBRUARY 2005
MELBOURNE
|
RYTIS EUGENIJUS POSKUS
First Applicant LINA POSKIENE Second Applicant |
|
|
AND:
|
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
Respondent |
|
DATE OF ORDER:
|
22 FEBRUARY 2005
|
|
WHERE MADE:
|
THE COURT ORDERS
THAT:
1. The application be
dismissed.
2. The applicants pay the respondent’s costs, to be taxed in
default of agreement.
Note: Settlement and entry of
orders is dealt with in Order 36 of the Federal Court Rules.
|
AND:
|
REASONS FOR JUDGMENT
The Tribunal’s Decision
1 This is an application to review a decision of the Migration Review Tribunal ("the Tribunal") affirming a decision of a delegate of the respondent Minister that the visa applicants are not entitled to the grant of a Temporary Business Entry (Class UC) visa ("the visa"). The applicants are seeking a writ of certiorari to quash the decision, and mandamus to require the respondent to direct the Tribunal to hear and determine their application according to the law.
2 The applicants in this matter are a husband and wife, who are citizens of Lithuania. The husband, Rytis Poskus ("the primary applicant") in this matter was born on 26 January 1967 and the wife, Lina Poskiene was born on 12 March 1973.
3 On 5 March 1999, both applicants entered Australia lawfully on Temporary Business Entry (Class UC), subclass 456 Business (Short Stay) visas valid until 5 June 1999. On 4 June 1999, the applicants were granted Short Stay (Visitor) (Class TR) visas, subclass 676 Tourist (Short Stay) visas ("visitor visas") in accordance with the Migration Act 1958 (Cth) ("the Act) and Migration Regulations 1994 (Cth) ("the Regulations"). The visitor visas were valid until 4 September 1999. Attached to the visitor visas was condition 8101 of Schedule 8 of the Regulations which provides that ‘the visa holder must not engage in work in Australia’. On the 2 September 1999, the primary applicant applied for a Temporary Business Entry (Class UC), subclass 457 Business (Long Stay) visa ("the business visa"). This application included the primary applicant’s wife.
4 The grant of a visa of that class was subject to reg 457.22 of the Regulations which provides, so far as is relevant;
‘457.221 If the applicant is in Australia at the time of application, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.’
5 The visitors’ visas which the applicants last held and which expired on 4 September 1999 were subject to a condition which cl 676.6B of Schedule 2 to the Regulations makes it mandatory to impose on visas of that class, namely condition 8101 in Schedule 8 to the Regulations. That condition is in these terms:
‘The holder must not engage in work in Australia.’
It was therefore necessary, by force of
reg 457.221, for the decision-maker entrusted with the grant or refusal of
a subclass
457 (Business) (Long Stay) visa to be satisfied that the primary
applicant had complied substantially with the condition that he
must not engage
in work in Australia.
6 It is necessary to outline briefly the requirements which must be satisfied by an applicant for a business visa. Three separate applications have to be lodged and approved. One, an application for a Temporary Business Sponsorship application ("the sponsorship application") is to be lodged by the proposed employer and that employer must then be approved as a business sponsor. Secondly, an application for a Nomination of a Business Activity ("the nomination application") must be lodged by the proposed employer and approved. Finally, the proposed employee must lodge an application for a Temporary Business Entry visa. Accordingly, although the present application concerns only the decision on the applicants’ business visa application, information relating to the decisions on the related application by the employer, Burvale Ridge, has an important bearing on the application for relief in this Court.
7 In addition to the primary applicant’s application for a business visa that was lodged on 2 September 1999, Burvale Ridge Pty Ltd (as trustee for J Hall Family Trust trading as J Hall Concrete Constructions Pty Ltd) ("Burvale Ridge") on the same date lodged both a sponsorship application and a nomination application.
8 On 4 September 1999, the applicants’ visitor visas expired. The applicants were subsequently issued with Bridging Visas A while awaiting the determination of their substantive visa application. Again, condition 8101 was attached to those bridging visas.
9 On 31 March 2000, Burvale Ridge was approved as a business sponsor and became entitled to nominate two persons. That sponsorship was effective for twelve months and lapsed on 31 March 2001. Also on 31 March 2000, Burvale Ridge’s business activity nomination application for a Building Construction Supervisor was refused. Subsequently, the applicants’ visa application was refused in consequence of the refusal to approve Burvale Ridge’s business activity nomination.
10 Applications for review of both refusals were lodged with the Tribunal. The Tribunal as then constituted affirmed both decisions but, because of a perceived procedural irregularity, the matters were remitted for rehearing by the Tribunal differently constituted. This recital of what happened from that point is taken from the Tribunal’s reasons published on 5 August 2004;
‘11. Both matters were constituted to the current Tribunal on 28 June 2002. By letter dated 3 July 2002 the Tribunal invited the visa applicant to comment on information contained in the Department's file that he had worked in Australia since March 1999 and that he had not had permission to work since 5 June 1999. The visa applicant was also invited to comment on the absence of an approved nomination (T1, f 29). A letter was sent to the sponsor on the same day.
12. By letter dated 9 July 2002, the visa applicant's then migration agent stated in response to the information in relation to work:
Our client has instructed us that he has not worked in that time.
Further our client cannot comment on such an allegation until specific details of the time, place and dates that our client allegedly worked [sic]. We request that you provide us with exact details of the allegations in order that our client may comment on why you are misinformed.
13. The Tribunal advised that the information arose from a file note appearing on the Department's file. Several further extensions of time were provided to comment on the absence of an approved nomination. On 18 November 2002, the Tribunal received notification that the review applicant had engaged a new migration agent (T1, f 115).
14. The Tribunal convened a hearing on 18 December 2002 at which the visa applicant gave evidence. Mr James Hall gave evidence on behalf of the sponsor. Mr Hall stated that the visa applicant had not worked for the company. He had been recommended to Mr Hall through contacts in the Lithuanian community, and had visited Mr Hall's office and sites but he had not been paid for this. Mr Hall had lent him money and had paid the legal fees for the migration application.
15. The visa applicant stated that he had not worked in Australia. He supported himself through the assistance of friends, money sent from Lithuania and the sponsor had paid the fees for the migration application and had lent him some money.
16. In the process of obtaining further information in relation to the review of the nomination and a new application for approval as a standard business sponsor by J Hall Concrete Constructions Pty Ltd, the Tribunal received information from the sponsor's accountants in relation to the company's employees. These documents included a group certificate in the name of Rick Poskus showing that the person of that name had been employed from 2 April 2002 to 30 June 2002 during the 2001/2002 financial year, earning $13 616 in that period.
17. By letter dated 17 June 2003, the Tribunal invited the visa applicant to comment on that information as follows:
This matter was heard by the Tribunal on 18 December 2002. Since that time, a further hearing has taken place in relation to the application for approval as a standard business sponsor made by J Hall Concrete Constructions Pty Ltd (your sponsor). Prior to that hearing, further documents were provided by your sponsor's accountant. These included a group certificate which indicated that an employee named Rick Poskus was employed by the sponsor from 2 April to 30 June 2002 earning $13616 in that time ....
At the hearing of the review application on behalf of the sponsor, Mr James Hall and the sponsor's representative confirmed that you were also sometimes known as Rick Poskus. Mr Hall stated that you had not been employed by the sponsor. However Mr Hall stated that no members of your family were working for the company and there was no one else by the name of Poskus who had been employed by the sponsor.
18. On 8 July 2003 a new representative for the visa applicant informed the Tribunal by telephone that the visa applicant would be seeking a new migration agent. The representative was advised to put this advice in writing. This was confirmed by the visa applicant's previous migration agent in writing on 9 July 2003. On 14 July 2003 a new migration agent contacted the Tribunal requesting an extension of time to respond to the Tribunal's request for comment of 17 June 2003. No extension of time was granted.
19. On 15 July 2003 the visa applicant's new representative advised that the visa applicant was employed by J Hall Concrete Constructions Pty Ltd as demonstrated by the group certificate. He was in severe financial difficulty and needed to work in order to support his family. J Hall Concrete Constructions Pty Ltd urgently required his services, and following representations from the company, he commenced employment. Mr Hall's statements to the contrary could not be explained. The representative noted that the visa applicant had applied to the Department on 16 February 2001 for permission to work and that no decision was every made on that application. The representative submitted that taking this into account, the visa applicant's action was not in blatant disregard of his bridging visa requirements but rather motivated by his need to provide subsistence for his family.
We submit that, although our client breached the `no work' condition on his bridging visa, he still satisfied clause 457.221 in that he has substantially complied with the conditions of his last substantive visa and his subsequent bridging visa. The only condition he has failed to comply with is the `no work' requirement. We submit that one breach of condition in these circumstances does not detract from the fact that there has been substantial compliance generally and ask the Tribunal to take the overall circumstances into account.’
11 Under the heading "FINDINGS AND REASONS" in its reasons for decision of 5 August 2003, the Tribunal noted that the "no work" condition 8101 applied to the primary applicant’s visitor’s visa which had been issued on 4 June 1999 and to his subsequent bridging visas issued on 2 September 1999 and 25 March 2002. The Tribunal then continued at [22] of its reasons;
‘The visa applicant has not had permission to work in Australia since 5 June 1999. The Tribunal invited the visa applicant to comment on information that he had been working in Australia since May 1999. This was denied. The Tribunal asked the visa applicant at the hearing whether he had worked in Australia. This was also denied. The group certificate plainly shows that the visa applicant breached condition 8101 in relation to his last bridging visa issued on 25 March 2002. It was not until the Tribunal presented the visa applicant with evidence in the form of a group certificate, that he agreed that he had been working for the sponsor. It was stated that J Hall Concrete Constructions Pty Ltd urgently required his services and following representations from the company he commenced employment. Although no starting date is stated, as the application for sponsorship was made in September 1999 and the visa applicant was in Australia on a visitor's visa with no work rights between June and September 1999, it is reasonable to consider that the information that the visa applicant had been working since May 1999 is correct. Therefore the Tribunal is not satisfied that the visa applicant has complied with condition 8101 in relation to any of his bridging visas or his visitor visa.’
12 In the course of its reasons for decision of 5 August 2003 the Tribunal also noted that cl 457.223 of Sch 2 to the Regulations did not require strict compliance; it was sufficient for the applicant to have complied substantially with the conditions to which his previous visa had been subject. In the case of the primary applicant, the only such condition was the "no work" condition 8101. The Tribunal went on to observe that, in deciding whether there had been substantial compliance with a condition, Sackville J in Kim v Witton (1995) 59 FCA 255, in a passage cited with approval by Katz J in Baidakova v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 1436, had indicated, at 271;
‘... In my opinion, in determining whether an applicant has complied substantially with a condition imposing a prohibition, the Tribunal should consider the relevant circumstances of the case. Without being exhaustive, these include
• the nature of the breach of condition;
• the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;
• whether or not the applicant deliberately flouted the condition; and
• if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.’
13 However, the Tribunal also pointed out that, in Minister for Immigration and Multicultural Affairs v Modi [2001] FCA 1656 a Full Court of this Court had held that those enumerated factors did not constitute a test for substantial compliance and it was open to the Tribunal to take into account a range of factors in considering whether it was satisfied that an applicant had substantially complied with a relevant condition of a visa. The Tribunal then set out the following findings and reasons in relation to substantial compliance with condition 8101;
‘25. In light of the visa applicant's repeated previous denials that he had worked and his previous evidence to the Tribunal that he had supported himself financially in Australia only through the support of relatives and friends, the Tribunal does not find the visa applicant to have been a witness of credit. Although the visa applicant's new representative submitted that "one breach of condition in these circumstances does not detract from the fact that there has been substantial compliance generally", condition 8101 was the only condition to which the visa applicant's visitor and bridging visas were subject and he has admitted to breaching this condition. However this admission came only after the presentation of incontrovertible evidence that he had done so and the Tribunal does not consider his subsequent admission in such circumstances to mitigate the Tribunal's findings as to his credibility.
26. The nature of the breach is significant, as the Tribunal has found that the visa applicant worked over a considerable amount of time and the Tribunal has evidence that he earned at least $13000 in the 2001/2002 year alone. The visa applicant was also aware that he was prohibited from working. This was demonstrated in his evidence to the Tribunal and in his application for permission to work. The Tribunal does not accept that the fact that the visa applicant may have applied for permission to work excuses the breach of the condition. There is no evidence that the visa applicant was misled by the Department or anyone else in relation to the condition and the Tribunal does not consider that the visa applicant's financial circumstances constitute circumstances to indicate that the visa applicant complied substantially with the condition, particularly when weighed against the seriousness of the breach. The Tribunal has taken the overall circumstances into account and it is not satisfied that the visa applicant complied substantially with the conditions to which his bridging visas and/or his visitor visa were subject. The visa applicant does not meet clause 457.221.’
14 The Tribunal next observed, in passing, that, although J Hall Concrete Constructions Pty Ltd had, by the time of the Tribunal’s decision, been approved as a sponsor, there was still no approval of a nomination (presumably by J Hall concrete Constructions Pty Ltd) in relation to the primary applicant. That, and other considerations, prevented, in the Tribunal’s view, the primary applicant from satisfying various other paragraphs of sub-clause 457. However, the Tribunal emphasised that those findings were not essential to its decision when it said, at the end of [27] of its reasons;
‘... In Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596 the Federal Court held that once the Tribunal has established that at least one essential criterion had not been satisfied, it was not obliged to make findings in relation to any other criteria. The visa applicant would not meet clause 457.223, however the Tribunal has already found that the visa applicant does not meet clause 457.221 and must affirm the decision on that basis.
28. As the primary visa applicant does not satisfy all of the primary criteria, the secondary visa applicant does not satisfy the secondary criteria.’
The proceedings in this Court
15 The proceedings in this Court were instituted on 1 September 2003 when the applicants filed an application for review under s 39B of the Judiciary Act 1903 (Cth) of the decision of the Tribunal of 5 August 2003. The application sought an order in the nature of certiorari to quash that decision and an order in the nature of mandamus requiring the Tribunal to hear and determine the application before it according to law. Several alleged jurisdictional errors were identified in the application as supporting the issue of constitutional writs. They included a finding of fact unsupported by evidence, an error in construing cl 457.22 1 of the Regulations, and a denial of natural justice particularised in various ways.
Resolution of the issues raised by the submissions for the applicants
16 When the hearing resumed on 13 May 2004, after the applicants had been given leave to amend the application, Mr Hurley of Counsel for the applicants submitted that only one "live issue" remained between the parties. That was whether there had been substantial compliance with visa condition 8101. However, as the submission developed it appeared to involve a subsidiary argument that the Tribunal’s finding on that issue had been infected by a failure to accord procedural fairness.
17 It was conceded on behalf of the applicants that, if the Tribunal’s conclusion as to substantial compliance had been based on Mr Poskus’ having only worked from April to June 2002, its decision was unexceptionable. However, it was contended, if, on the other hand, the Tribunal had acted on the primary applicant’s having worked since May 199 there had been a denial of natural justice and a failure to comply with s 359 of the Act. That section provides:
‘(1) Subject to subsection (2), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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
(c) invite the applicant to comment on 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.
(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; or
(c) that is non-disclosable information.’
18 The first proposition advanced by Mr Hurley was that the proper inference to be drawn from the Tribunal’s reasons is that it found that Mr Poskus had worked without permission for a period longer than that from April to June 2002 to which the group certificate had attested. That inference was said to be supported by the statement in [26] of the Tribunal’s reasons quoted at [13] above that "the Tribunal has evidence that he earned at least $13,000 in the 2001/2002 year alone" (emphasis added). However, I do not consider those words to give rise to a preferable inference that the Tribunal found affirmatively that the primary applicant had worked for a longer period, and earned more, than was disclosed in the group certificate. Reading the Tribunal’s reasons with the benevolence enjoined, for example, by the High Court in Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1996] HCA 6; (1996) 185 CLR 259 at 271-272, I consider the inference to be at least equally open that the Tribunal considered that the evidence permitted only a finding in respect of the $13,000 from April to June 2002 and, while the possibility of further work at other times remained open, it proceeded to assess whether there had been substantial compliance solely on the finding allowed by the evidence.
19 It was next submitted on behalf of the applicant that the Tribunal had misunderstood, or overlooked, the effect of the provisions of the Regulations governing an application for a bridging visa with permission to work. The primary applicant had made an application for such a bridging visa which was rejected on 22 September 1999. On the next day, 23 September 1999, a fresh application for a bridging visa without any limitation as to work was made. The fate of that application is unclear. There is no affirmative evidence that it was ever granted but, equally, no refusal of it was ever notified to the applicants in accordance with s 66(2) of the Act.
20 A third application for a bridging visa with permission to work was made on 16 February 2001. That application, it will be remembered, was noted by the Tribunal at [19] of its reasons quoted at [10] above as having been referred to by the applicant’s representative as demonstrating that his action in working had not been in blatant disregard of his bridging visa requirements. However, Mr Hurley for the applicants submitted that the Tribunal’s failure to advert to the apparently unresolved application for a bridging visa with freedom to work was significant. Had the Tribunal not overlooked that application, it would have ascertained its status with possibly significant consequences for its assessment of whether the primary applicant had substantially complied with the conditions of his bridging visa.
21 In the same context Counsel for the applicants pointed out that, on 25 March 2002, the primary applicant had made a further application for permissions to work attached to a bridging visa. No decision was made then or at any time before October 2003 on whether the primary applicant should have a bridging visa. On 23 October 2003 he obtained a new bridging visa with permission to work. The intervening hiatus, so the argument went, should have put the Tribunal on enquiry as to what had happened to the earlier, unresolved, applications lodged on 23 September 1999 and 25 March 1999. However, it is clear from [19] of the Tribunal’s reasons, which I have already noted is reproduced at [10] above, that the applicant’s representative proceeded before the Tribunal on the footing that the application made on 16 February 2001 had been unresolved. The Tribunal considered the matter on the same basis but it was clear that, on 25 March 2002, a fresh application for a bridging visa with permission to work had been made. Implicit in that application was an acknowledgement that the primary applicant had not been granted permission to work before 25 March 2002. If the preferable inference about the Tribunal’s decision-making processes is that identified at [18] above, the only period of work in respect of which the Tribunal had to consider substantial compliance was that from April to June 2002 during which the only "live" application for permission to work which could have been pending was that made on 25 March 2002.
22 In a related way it was submitted on behalf of the applicant that the Tribunal, having been put on enquiry about the fate of the application of 25 March 2002 for a bridging visa with permission to work, should have sought information from the Secretary of the Department pursuant to s 359(4) of the Act. Section 359 as a whole provides;
‘(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3) If an invitation is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.’
23 As I understood this third argument, it involved the contention that, had the Tribunal made the suggested enquiry of the Secretary to the Department, that would have enlivened, or revived, the Secretary’s obligation under s 352(4) of the Act in respect of the outcome of the application of 25 March 2002. Section 352 in its totality provides;
‘(1) If an application for review is made to the Migration Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.
(2) Subject to subsection (3), the Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:
(a) sets out the findings of fact made by the person who made the decision; and
(b) refers to the evidence on which those findings were based; and
(c) gives the reasons for the decision.
(3) If the application is for review of an MRT-reviewable decision covered by subsection 338(4), the Secretary must comply with the requirements of subsection (2) within 2 working days after being notified of the application.
(4) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.’
24 However, the obligation of the Secretary in the present case arose in respect of decisions made on 31 March 2000 by a delegate of the Minister refusing Burvale Ridge Pty Ltd’s nomination of a business activity and consequently refusing the applicants’ application for substantive visas. The Tribunal at [6] of its reasons for the decision under review stated that it had in its possession the following documents:
‘T1 – MRT case file V02/04073, folio numbered 1–107;
T2 – MRT case file V02/04072, folio numbered 1–219;
T3 – MRT case file V00/02038, folio numbered 1–97;
T4 – MRT case file V00/02037, folio numbered 1–82;
D1 – Departmental case file CLF2000/22832, folio numbered 1-213.’
25 There is no evidence before the Court to suggest that any material in the possession or control of the Department which was relevant to the review of the delegate’s decision of 31 March 2000 was not included in one or other of those files. In any event, s 359 of the Act is facultative rather than mandatory; see eg VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 where Crennan J made these observations, at [27] about ss 424 and 427 of the Act which correspond, in their application to the Refugee Review Tribunal, with s 359 empowering the Tribunal to seek additional information;
‘Following established authority, her Honour found that ss 424 and 427(1)(d) empowering the Tribunal to obtain information and require investigations are permissive not mandatory. The principles have been clearly explained. See: Dissanayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976 esp. at [18]. The fact that the Tribunal did not use enabling provisions like s 424 (to seek additional information) and 427(1)(d) (to make further enquiries) does not indicate any error of law on its part See also: SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 598 esp. at [40]. (No issue concerning ss 424 and 427 arose in a subsequent appeal to the Full Court: SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397.)’
26 In the present case I am satisfied that the Tribunal complied with the requirements of s 359A of the Act. The information that the tribunal considered would be the reason or part o the decision for affirming the decision under review was information to the effect that Mr Poskus had worked while a "no work" condition attached to his bridging visa was in force. The Tribunal also made clear that this information was capable of bearing on the issue of substantial compliance when it wrote to the primary applicant care of his then solicitors a letter dated 3 July 2002 which contained these passages;
‘Section 359A of the Act states that the Tribunal must explain, and invite comment on, ‘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’.
You are invited to comment, in writing, on the following information:
• The Tribunal has information that you have worked in Australia since March 1999. This information is relevant to the review as you have not had a visa with work permission since 5 June 1999. It is a requirement for a subclass 457 visa that you have substantially complied with the conditions on your current visa; ...
.........
Section 359(2) of the Migration Act allows the Tribunal to invite a person to give it additional information that is relevant to the review of a decision.
Accordingly, the Tribunal now invites you to provide the following additional information:
• Evidence of how the visa applicants have supported themselves in Australia since June 1999; • Details of all Mr Poskus’s skills and experience relevant to the nominated activity, eg current resume, certified true copies of qualifications, detailed references from former employers, etc; and • Evidence as to how Mr Poskus has maintained his skills and experience while in Australia and unable to work.’
27 The applicants’ solicitors clearly understood the issue which was being raised by the Tribunal and how it was capable of affecting the outcome of the review when they replied by letter dated 9 July which included this passage;
‘In that letter you stated, ‘The Tribunal has information that you have worked in Australia since March 1999’.
Our client has instructed us that he has not worked in that time.
Further, our client cannot comment on such an allegation until specific details of the time, place and dates that our client allegedly worked. We request that you provide us with exact details of the allegations in order that our client may comment on why you are misinformed.’
That denial was maintained in
evidence before the Tribunal by both the primary applicant and Mr Hall of
the sponsoring company,
Burvale Ridge. It was only retracted after the group
certificate came to light in the course of a review of the nomination
application
and a new application for approval of J Hall Concrete Constructions
Pty Ltd as a standard business sponsor. After that revelation,
the Tribunal
again complied with s 359A by writing to the primary applicant care of his
then migration agent a letter dated 17 June 2003 which included this
passage;
‘Section 359A of the Act states that the Tribunal must explain, and invite comment on, ‘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’.
You are invited to comment, in writing, on the following information:
• This matter was heard by the Tribunal on 18 December 2002. Since that time, a further hearing has taken place in relation to the application for approval as a standard business sponsor made by J Hall Concrete Constructions Pty Ltd (your sponsor). Prior to that hearing, further documents were provided by your sponsor's accountant. These included a group certificate which indicated that indicated [sic] that an employee named Rick Poskus was employed by the sponsor from 2 April to 30 June 2002 earning $13616 in that time (see attached).
• At the hearing of the review application on behalf of the sponsor, Mr James Hall and the sponsor's representative confirmed that you were also sometimes known as Rick Poskus. Mr Hall stated that you had not been employed by the sponsor. However Mr Hall stated that no members of your family were working for the company and there was no one else by the name of Poskus who had been employed by the sponsor.’
28 That letter elicited this response (omitting formal parts) dated 15 July 2003 from Fernandez Canda Gerkens, new solicitors then acting for the applicants;
In your letter, you invited our client to provide additional information regarding his application. We will now deal with each request in turn:
• Group Certificate indicating employee, Rick Poskus, was employed by J Hall Concrete Constructions Pty Ltd from 2 April to 30 June 2002
Our client was so employed by J Hall Concrete Constructions Pty Ltd. We are instructed that out client was in severe financial difficulty and needed to work in order to support his family. J Hall Concrete Constructions Pty Ltd urgently required his services and, following representations from the company, he commenced employment.
It is relevant to note that Mr Poskus applied to the Department on 16 February 2001 for permission to work (see attached copy receipt). Our examination of the Department's file provided under FOI indicates that no decision has ever been made on this application.
Taking these matters into account, we submit that our client's action was not in blatant disregard of his Bridging Visa requirements but rather motivated by his need to provide subsistence for his family.
• Evidence of Mr James Hall, representative of J Hall Concrete Constructions Pty Ltd, at MRT hearing (18 December 2002) that our client had not worked for his company although no one else by the name of Rick Poskus had been employed by this company.
We are instructed that our client is unable to explain the discrepancies in Mr James Hall's evidence in relation to this point.
• Our client is working in contravention of the ‘no work’ condition on his Bridging visa and, therefore, does not satisfy clause 457.221
We submit that, although our client breached the 'no work'
condition on his Bridging visa, he still satisfies clause 457.221 in that
he has
substantially complied with the conditions of his last substantive visa and his
subsequent bridging visa. The only condition
he has failed to comply with is
the "No work" requirement. We submit that one breach of condition in these
circumstances does not
detract from the fact that there has been substantial
compliance generally and ask the Tribunal to take the overall circumstances
into
account.’
29 It can thus be seen that the applicants’ legal advisers were under no misapprehension about the effect of the revelation that the primary applicant had engaged in paid work and its significance for the issue of substantial compliance. They elected not to give particulars or adduce evidence of the period or periods for which Mr Poskus actually worked but were content to confess and avoid the contravention of the Regulations by contending that it did not preclude a finding of substantial compliance. It is to be noted in this context that the solicitors brought to the Tribunal’s attention the apparently unresolved application for permission to work of 16 February 2001.
30 In these circumstances there was no failure by the Tribunal to comply with s 359A. Moreover, as already explained, I consider that the primary applicant had, and exercised, an ample opportunity to comment on adverse information in the possession of the Tribunal. It is therefore unnecessary to consider the vexed question discussed eg in the context of the Refugee Review Tribunal by French J in WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220, of whether, and when, a provision like s 359A operates in conjunction with s 357A to exhaust the requirements of the natural justice hearing rule in relation to an applicant’s right to comment on adverse information known to the Tribunal.
Conclusion
31 For the reasons outlined above each of the grounds of attack on the Tribunal’s decision has failed. The applicants having, with the benefit of competent and experienced advice, elected to conduct their application on a certain footing, cannot be heard to complain that the Tribunal should have assessed the issue of substantial compliance on a different basis. In my view, the following observations of Gummow and Hayne JJ in Abebe v the Commonwealth (1999) 197 CLR 5120 at 576 [187] can be paraphrased to apply with equal force to the present case;
‘The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.’
32 Similarly, it was for the applicants to advance whatever evidence or argument they wished to advance in support of their contention that there had been substantial compliance with Reg 457.221 notwithstanding the breach of the "no work" condition.
33 The application must be dismissed with costs.
|
I certify that the preceding thirty-three (33) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Justice Ryan
J.
|
Associate:
Dated: 22 February 2005
|
Counsel for the Applicants:
|
Mr T Hurley
|
|
|
|
|
Solicitor for the Applicants:
|
Armstrong Ross
|
|
|
|
|
Counsel for the Respondent:
|
Mr W Mosley
|
|
|
|
|
Solicitor for the Respondent:
|
Clayton Utz
|
|
|
|
|
Date of Hearing:
|
13 May 2004
|
|
|
|
|
Date of Judgment:
|
22 February 2005
|
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/2005/118.html