Poskus v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 156 (10 August 2005)

Last Updated: 10 August 2005

FEDERAL COURT OF AUSTRALIA

Poskus v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 156

Migration Act (Cth) 1958 s 359A























RYTIS EUGENIJUS POSKUS and LINA POSKIENE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and MIGRATION REVIEW TRIBUNAL

VID 193 of 2005






SUNDBERG, MARSHALL and NORTH JJ
10 AUGUST 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 193 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:	RYTIS EUGENIJUS POSKUS FIRST APPELLANT LINA POSKIENE SECOND APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT MIGRATION REVIEW TRIBUNAL SECOND RESPONDENT

JUDGES:	SUNDBERG, MARSHALL and NORTH JJ
DATE OF ORDER:	10 AUGUST 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The Migration Review Tribunal be added as a respondent.
2. The appeal be dismissed.
3. The appellants pay the first respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 193 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:	RYTIS EUGENIJUS POSKUS FIRST APPELLANT LINA POSKIENE SECOND APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT MIGRATION REVIEW TRIBUNAL SECOND RESPONDENT

JUDGES:	SUNDBERG, MARSHALL and NORTH JJ
DATE:	10 AUGUST 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The appellants appeal from the decision of the primary judge dismissing their application to review a judgment of the Migration Review Tribunal, affirming a decision of the first respondent’s delegate that they are not entitled to the grant of a Temporary Business Entry (Class UC) visa. The grant of that visa was subject to clause 457.22 of the Regulations made under the Migration Act 1958 (Cth) (the Act). This required the first appellant to have substantially complied with the conditions to which any visa held, or last held, by him is or was subject. The first appellant’s visitor visa issued on 4 June 1999 and his subsequent bridging visas were subject to a condition that "The holder must not engage in work in Australia". The Tribunal found that the first appellant had not substantially complied with that condition.

2 In order to understand the ensuing summary of the primary judge’s reasons for dismissing the application, it is necessary to refer to some of the evidence before the Tribunal. On 3 July 2002 the Tribunal wrote to the appellants’ solicitors setting out the substance of s 359A of the Act and continuing:

"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 ...."

3 The solicitors replied by letter of 9 July, which is in part as follows:

"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."

4 The denial that the first appellant had worked was maintained in evidence before the Tribunal by both the first appellant and the representative of his sponsoring company, Burvale Ridge Pty Ltd (as trustee of J Hall Family Trust trading as J Hall Concrete Constructions Pty Ltd).

5 On 17 June 2003 the Tribunal wrote to the appellants’ migration agent. After again referring to s 359A, it invited the appellants’ comment on a group certificate showing that a Rick Poskus had been engaged by the sponsor from 2 April 2002 to 30 June 2002 and had earned $13,616 in that period. This elicited a response from the appellants’ new solicitors by letter of 15 July. In relation to the information that the group certificate showed that Rick Poskus was employed by J Hall Concrete Constructions Pty Ltd from 2 April to 30 June 2002, the solicitors said:

"Our client was so employed by J Hall Concrete Constructions Pty Ltd. We are instructed that our 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."

6 The letter then turned to whether the first appellant had failed to substantially comply with the "no work" condition:

"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."

7 The primary judge dealt first with the appellants’ submission that the Tribunal had proceeded on the basis that the first appellant had worked since May 1999, and that it had denied him natural justice and failed to comply with s 359A in that it had not provided him with the essential features of this allegation, namely the place where the first appellant was alleged to have worked and the period during which he was alleged to have worked there.

8 Section 359A(1) requires the Tribunal to

"(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."

9 The primary judge did not accept the starting point of the s 359A/natural justice submission. His Honour said:

"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 ... 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."

What his Honour called the inference that was "at least equally open" was that which he in fact drew.

10 After setting out the facts recorded at [2] to [6], the primary judge said:

"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 ....

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."

11 The appellants’ notice of appeal contains four grounds – two relating to the period during which the first appellant worked and two relating to other matters. The latter grounds were not pursued. However, the appellants seek to amend their notice so that the grounds would be as follows:

"1. ...

(a) His Honour erred in finding [18] that the statement of reasons of the MRT properly construed meant that the MRT had not inferred that the first appellant had engaged in work in Australia contrary to the condition 8101 imposed on his visa for a period other than 2 April 2002 to 30 June 2002;

(b) His Honour erred in finding that the MRT took into account an allegation (‘the allegation’) that the first appellant had engaged in work in Australia for a period other than from April 2002 to June 2002 without giving notice of [the essential features of the allegation, namely, the place where the appellant was alleged to have worked and the period during which he was alleged to have worked there] to either of the appellants [and without giving the appellants an opportunity to test the allegation and without testing the allegation itself];

2. His Honour erred in failing to hold that the MRT found unreasonably and/or without evidence and/or by taking into account an irrelevant consideration that the first appellant had worked since May 1999;

3. His Honour erred in failing to hold that the MRT had breached s 359A of the Migration Act 1958 by not giving proper particulars of the allegation;

4. His Honour erred in failing to hold that the MRT erred in asking itself the wrong question in that it asked whether working for 50 months out of 50 months was substantial compliance with condition 8101 when it should have asked whether working for 3 months out of 50 months was substantial compliance with that condition."

Ground 1(a) appears in the notice of appeal as filed. Ground 1(b), except the parts we have enclosed in brackets, is in the notice. The bracketed parts are sought to be added. Grounds 2, 3 and 4 are sought to be added.

12 The viability of all grounds of appeal depends on the appellants satisfying us that the inference drawn by the primary judge set out at [9] was not properly drawn. In our view the proper inference to be drawn from the reasons of the Tribunal is that drawn by his Honour.

13 The relevant part of the Tribunal’s reasons on substantial compliance is as follows:

"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.

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."

The emphases are ours. The observations in [14] below are directed to them.

14 The breach admitted by the first appellant is that he had worked between 2 April and 30 June 2002. The "incontrovertible evidence" is that provided by the group certificate, namely that he had worked between those dates. The "nature of the breach", which the Tribunal described as "significant", is the admitted breach. The first appellant has never admitted any other or different breach; only that he had worked between the specified dates. The Tribunal’s statement that the application for permission to work does not excuse "the breach" is again a reference to the admitted breach. The breach that is then said to be "serious" is the same breach that has earlier been described as "significant".

15 It is true that the words "the visa applicant worked over a considerable period of time and the Tribunal has evidence that he earned at least $13000 in the 2001/2002 year alone" might suggest that the Tribunal was looking beyond the period 2 April to 30 June 2002. However, those words do not in our view outweigh the strong and clear indications set out at [14] that in determining the question of substantial compliance the Tribunal was focusing on that confined period.

16 The Tribunal’s statement, before it turned to substantial compliance, that it was "reasonable to consider that the information that the visa applicant had been working since [March] (the Tribunal wrongly says May) 1999 is correct" might in isolation support the appellants’ contention. However the context explains that the words "since [March] 1999" are not intended to convey that at all times since then the first appellant had been working. Rather it is concerned to indicate that after the first appellant had entered Australia in March 1999, there had been a period during which he had worked. That is because the quoted passage appears immediately after the Tribunal’s discussion of the import of the group certificate showing that he had worked from 2 April to 30 June 2002. Accordingly it is not a fair reading of the passage to treat it as a finding that at all times since March 1999 the first appellant had been working.

17 It is to be noted that the basis upon which the appellants’ solicitors invited the Tribunal to proceed was that the first appellant had substantially complied with the work condition notwithstanding the admitted breach in relation to the period 2 April to 30 June 2002. As the primary judge said, they did not give particulars or adduce evidence of the period or periods for which the first appellant actually worked. Rather they elected to confess and avoid the admitted breach by contending that it did not preclude a finding of substantial compliance. In those circumstances, there is no occasion to subject what the Tribunal said to a strained interpretation.

18 The primary judge also said:

"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."

The "certain footing" referred to is that propounded in the solicitors’ letter of 15 July 2003, namely that the issue of substantial compliance should be assessed in relation to the period 2 April to 30 June 2002.

19 After it had concluded that the first appellant had not satisfied clause 457.221, the Tribunal went on to say:

"The visa applicant was also informed by letter dated 3 July 2002 [the letter referred to at [2]] that if that nomination application was unsuccessful, and there was no other approved sponsorship and nomination in place, the Tribunal would have no alternative but to affirm the decision under review. Although J Hall Concrete Constructions Pty Ltd has now been approved as a sponsor, there is still no evidence of the approval of a nomination in relation to the visa applicant. As there is no approved nomination in place, the visa applicant would not meet subclauses 457.223(4) or (5)."

The Tribunal went on to say that the first appellant did not meet the requirements of the other sub-clauses of clause 457.223, and continued:

"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."

20 Although the Tribunal affirmed the delegate’s decision on the basis that clause 457.221 was not satisfied at the time of decision, it appears to have found that the requirements of clause 457.223 were not satisfied. In those circumstances it may be doubted whether, if the appellants’ substantial compliance submission were accepted, there would be any point in remitting the matter to the Tribunal. Counsel were not able to assist the Court on this point, having quite reasonably devoted their attention to the matters canvassed before the primary judge, of which clause 457.223 was not one. In view of our conclusion on clause 457.221 we need not pursue this question further.

21 The basis for all the grounds of appeal now sought to be pursued having fallen away, we will not give leave to amend the grounds. The appeal will be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sundberg, Marshall and North.

Associate:

Dated: 10 August 2005

Counsel for the Appellants:	Ms H Riley (Pro bono)
Counsel for the Respondents:	Mr W Mosley
Solicitors for the Respondents:	Clayton Utz
Date of Hearing:	5 August 2005
Date of Judgment:	10 August 2005