Poskus v Minister for Immigration & Multicultural & Indigenous Affairs

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.

Counsel for the Appellants: Ms H Riley (Pro bono)