D*Costa v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 619 (16 May 2005)

D’Costa v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 619

MIGRATION – Subclass 457 visa – Whether applicant complied substantially with previous visa – Whether employer/employee relationship existed – Whether change of employer

Judiciary Act 1903 (Cth) s 39B

Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 24, 35, 36, 37 and 38 referred to
Zurich Australian Insurance Ltd v AMEC Pty Ltd (unreported, 31 March 1998, Kennedy, Pidgeon and Ipp JJ, Supreme Court of Western Australia) referred to

DESMOND ANTHONY D'COSTA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, DANICA BULJAN (in her capacity as a Member of the Migration Review Tribunal) and STEVE KARAS (in his capacity as Principal Member of the Migration Review Tribunal)

V455 of 2004

WEINBERG J
16 MAY 2005
MELBOURNE

BETWEEN:	DESMOND ANTHONY D'COSTA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT DANICA BULJAN (in her capacity as a Member of the Migration Review Tribunal) SECOND RESPONDENT STEVE KARAS (in his capacity as Principal Member of the Migration Review Tribunal) THIRD RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	16 MAY 2005
WHERE MADE:	MELBOURNE

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN:	DESMOND ANTHONY D'COSTA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT DANICA BULJAN (in her capacity as a Member of the Migration Review Tribunal) SECOND RESPONDENT STEVE KARAS (in his capacity as Principal Member of the Migration Review Tribunal) THIRD RESPONDENT

1 This is an application, pursuant to s 39B of the Judiciary Act 1903 (Cth), to review a decision of the Migration Review Tribunal ("the MRT") given on 9 March 2004. By that decision, the MRT affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister") refusing the applicant a Temporary Business Entry (Class UC) visa, subclass 457.

2 The applicant is a citizen of India. He arrived in Australia on 5 September 1998 as the holder of a Temporary Business Entry (Class UC) visa ("the previous visa"). The previous visa expired on 10 June 2002. The applicant has remained in Australia on several bridging visas since that time.

3 The applicant’s wife and children were secondary visa holders under the previous visa. They were also secondary applicants in the visa application presently under review. The success or failure of their application is wholly dependent upon the success or failure of the applicant’s primary application. Accordingly, nothing further need be said about their involvement in this proceeding.

4 The applicant lodged his application for a further Temporary Business Entry (Class UC) visa on 7 June 2002, some three days before his previous visa expired. On 25 February 2003, the Minister’s delegate refused that application on the ground that the applicant had not "complied substantially" with a condition that had been imposed on the previous visa.

5 On 24 May 2003, the applicant lodged an application for review with the MRT. As previously indicated, on 9 March 2004 the MRT affirmed the delegate’s decision. On 6 April 2004, the applicant filed an application for review of the MRT’s decision in this Court. It is that application that forms the basis of this proceeding.

6 The applicant’s case can be summarised briefly. He contends that the MRT misconstrued the particular condition that attached to his previous visa, and/or asked itself the wrong question, when it concluded, as the delegate had done, that he had not "complied substantially" with that condition.

7 In order to understand that contention it is necessary to set out the relevant legislative provisions that govern this matter.

8 The relevant criteria for the grant of a subclass 457 visa are to be found in clause 457 of Sch 2 of the Migration Regulations 1994. As the applicant was in Australia at the date of his application for the subclass 457 visa, he was required, at the time of the MRT’s decision, to satisfy the criterion found in clause 457.221. That provides as follows:

9 The previous visa had been subject to condition 8107, in Sch 8. At the relevant time condition 8107 provided as follows:

10 The reference to "the Secretary" was to the Secretary of the Minister’s Department. It was common ground that the applicant had not obtained the permission of the Secretary to change his employer, or his occupation, in Australia. Therefore, the first issue to be determined by the MRT was whether he had relevantly changed employer or occupation. The second issue was whether, even if he had changed employer or occupation, he had "complied substantially" with the condition that he not do so without the permission in writing of the Secretary.

11 The MRT found that the applicant had changed employer without obtaining the requisite permission in writing. It therefore did not consider the alternative limb of condition 8107, namely whether he had changed occupation without obtaining that permission.

12 The MRT’s reasons for decision, at some points, appear to treat the applicant’s sponsor for his application for the previous visa, La Freight Lift Private Limited ("La Freight"), as his employer, both immediately prior to, and upon his arrival in Australia. In a letter to the Department of Immigration & Multicultural Affairs dated 8 April 1997, to which the MRT referred, which was prepared by the applicant’s migration agents, La Freight was described as one of "Madras’ leading Break Bulk, custom and freighting agents". It was said to have been incorporated in 1993, and to have established a reputation as a sound and reliable member of the Indian freight forwarding industry. It was further said to be seeking the opportunity to expand into the Australian market. In order to facilitate that aim, it proposed to nominate an operations and logistics manager to establish and commence operating the Australian branch of the company. The applicant was nominated to fulfil that role.

13 The letter went on to speak of the applicant’s experience, and to vouch for his expertise in providing freight services. He was said to have been involved in the profitable establishment and operation of La Freight in both its head office, and its airport office, in Madras. In broad terms, the company proposed that within 12 to 18 months, a mirror service to that operating in India would be in place.

14 The letter several times referred to La Freight as "the employer". At one point it indicated that the applicant was "proposed to be employed" in the capacity of the company’s "Australian Logistics Manager". However, it did not make clear whether the applicant was to be employed in that capacity immediately upon his arrival in Australia, or only after certain steps had been taken to establish the business in this country.

15 The letter referred to four attachments. These were a Form 956 "Appointment of person to act as agent", a Form 1068 "Nomination by a Business Sponsor", a Form 1067 "Business Sponsorship Application and a Form 932 "Migration Agents Declaration".

16 Regrettably, at least three of these documents can no longer be located. It is unclear whether the Department has misplaced them, or whether they were lost while in the custody of the MRT. The documents in question are plainly of considerable importance in determining whether or not the applicant was an employee of La Freight when he arrived in Australia. On one view, and that was certainly the position he took before this Court, he had never been an employee of that company. He claimed that La Freight was merely a family business that he had assisted over a period of years, and that his only employer in India had been Singapore Airlines.

17 I was provided with a transcript of the applicant’s evidence before the MRT. There are a number of references, in that transcript, to the applicant’s relationship with La Freight both before he came to Australia, and immediately thereafter. At one point, the MRT referred to his receiving a "salary" of $40,000 per annum for a period of four years. Presumably, that was a reference to something that appeared in one of the lost documents. There is nothing in the letter that refers to those documents regarding a "salary", or a figure of $40,000 per annum, or any other figure.

18 Without seeing the critical documents, it would be dangerous to place too much weight upon the MRT’s reference to the applicant receiving a "salary" as indicating that he had been employed by La Freight in India, or that he was employed by La Freight when he arrived in Australia. It is true that the previous visa appears to have been granted upon the basis that an employer/employee relationship between La Freight and himself existed prior to his arrival in this country. However, it is also possible to construe the various representations made in the letter as simply indicating that La Freight proposed, at some point, to employ him as its logistics manager.

19 In the end, that did not occur. For reasons that are not presently relevant, La Freight never paid him any salary, and only contributed a miniscule amount towards the cost of setting up an Australian branch. Indeed, the applicant apparently gave up the idea of setting up that branch, and on 18 April 2000 incorporated his own company, Transition Agencies Pty Limited ("Transition"). Its business was freight transport, a business that was similar in some respects to the business conducted by La Freight. The applicant was the sole director, secretary, and shareholder of Transition.

20 In its findings, the MRT correctly identified the key issue as being whether the applicant had changed his employer or occupation without permission in writing from the Secretary. It observed that he claimed that although he incorporated and became a director of Transition, "he continued to work for La Freight Lift, the employer for whom he was originally authorised to work, throughout the period for which his previous substantive visa was granted". The MRT reasoned that if the applicant remained in an employer/employee relationship with La Freight throughout the period of his previous visa, no breach of condition 8107 would be established. On the other hand, if the employer/employee relationship between the applicant and La Freight was severed when he established Transition, a breach of that condition would be shown to exist.

21 Curiously, in the light of some of its later findings, the MRT concluded that there was actually very little objective evidence to indicate that the applicant had ever worked for La Freight. It found that he had not worked for La Freight in India, and had never received a salary or wage from that company since his arrival in Australia. The evidence was that La Freight had not paid for, or contributed to, the applicant’s relocation expenses to Australia. Indeed, the MRT went on to find that there was very little independent evidence to support the conclusion that La Freight had ever had any control over how the applicant performed his duties in this country.

22 The MRT said that in considering whether or not an employer/employee relationship existed, it would have regard to the legal tests articulated in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 24, 35, 36, 37 and 38. In addition, it referred to a "Victorian [sic] Full Supreme Court decision" of Zurich Australian Insurance Ltd v AMEC Pty Ltd (which it described as "unreported, March 1998, Kennedy, Pidgeon and Ipp JJ", and was actually delivered by the Supreme Court of Western Australia on 31 March 1998).

23 The MRT then set out a series of factors that were said to support, and to be inconsistent with, the applicant having been employed by La Freight. Importantly, at [50], it concluded, on balance, that the applicant’s relationship with La Freight should be viewed as a contract for service, rather than an employer/employee relationship. Certainly, as from the time that Transition was incorporated, the applicant was "self-employed as an independent contractor". As a result, any employer/employee that he may once have had with La Freight was definitely severed by that time.

25 Having found that there was a change of employer, the MRT went on to conclude that the applicant had not complied substantially with the conditions to which the previous visa had been subject. Nothing turns upon that finding. It is rather the anterior finding that there had been a change of employer that is the subject of the present application.

26 Mr Gibson, counsel for the applicant, submitted that the MRT’s decision could not be sustained. He contended that, on its own findings, and notwithstanding what the applicant may have claimed when the matter was before the MRT, the applicant had never, in truth, been an employee of La Freight (even though some of the documents filed in support of the previous visa might have suggested that this was the case). Moreover, La Freight had never employed the applicant after he had arrived in Australia. His relationship with that company was, as the MRT found, that of an independent contractor. In those circumstances, any severance of that relationship that may have occurred, and that may have been followed by the applicant setting up his own business, could not possibly have resulted in a change of employer. A person who was not employed by anyone when he came to this country did not change his employer when he severed his relationship with a company for which he was acting, but by which he was not employed. A person who subsequently set up his own business, and became self-employed, did not have an employer. Self evidently, he could not thereby be found to have "changed" his employer.

27 Mr Hay, who appeared for the Minister, submitted that notwithstanding the various arguably contradictory findings made by the MRT, the evidence pointed strongly to the applicant having been an employee of La Freight in India, and having continued to be an employee of that company upon his arrival in Australia. He recognised the difficulty of maintaining that position in the face of the MRT’s conclusion at [50] that the applicant’s relationship with La Freight was more likely to have been one of contract for service than an employer/employee relationship. He therefore submitted, in the alternative, that even if the MRT erred in law in finding that there had been a change of employer, and even if that amounted to jurisdictional error, the matter should not be remitted because it would be futile to do so. He contended that the MRT would inevitably conclude that even if no change of employer had occurred, there had certainly been a change of occupation.

28 Notwithstanding the cogency with which Mr Hay presented his arguments, I am unable to accept his submissions. I cannot see how the MRT could, as a matter of logic, conclude that the applicant, who it found had never been an employee of La Freight, whether before or after his arrival in Australia, and who later established his own business, thereby in some way, changed his employer. It may be that statements made to the Department at the time the applicant sought the previous visa were misleading. However, a more benevolent view of his conduct is also reasonably open. Neither of these possibilities has anything to do with whether condition 8107 was breached.

29 The MRT did not, at any stage, consider whether the applicant changed his occupation after arrival in this country. The fact that he did not pursue efforts on behalf of La Freight, but went into an analogous business, on his own account, might lead the MRT to precisely that conclusion. On the other hand, it would be open to the MRT to find that there was no change of occupation, but rather simply a new mode of carrying out that occupation. It cannot be said that the latter conclusion is so untenable that it would be futile to remit this matter for reconsideration.

30 It follows that the applicant is entitled to succeed on this application. The matter should be remitted to the MRT for reconsideration in accordance with these reasons for judgment.

31 Mr Gibson conceded that the manner in which the application was argued before me differed significantly from the written submissions that had been prepared by the applicant’s former counsel. Mr Hay, though not prejudiced, or taken by surprise by Mr Gibson’s arguments, submitted that if the matter were remitted, any costs that might be ordered in favour of the applicant should be reduced by reason of costs thrown away in meeting a series of contentions that were not pressed before this Court. He fixed those costs at $1250. Mr Gibson did not resist that submission. Accordingly, I will order that the Minister pay the applicant’s costs of and incidental to this application, less the amount of $1250.

32 The second and third respondents did not appear. I assume, in the ordinary way, that they simply submitted to any order that the Court might make, save as to costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Counsel for the Applicant:	Mr J.A. Gibson

Solicitor for the Applicant:	Clothier Anderson & Associates

Counsel for the Respondent:	Mr R.S Hay

Solicitor for the Respondent:	Clayton Utz

Date of Hearing:	16 May 2005

Date of Judgment:	16 May 2005

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V455 OF 2004

JUDGE:	WEINBERG J
DATE:	16 MAY 2005
PLACE:	MELBOURNE

Federal Court of Australia

D*Costa v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 619 (16 May 2005)