Salaria v Minister for Immigration and Border Protection

1. The application is dismissed.
2. The applicant is to pay the first respondent's costs in the amount of $1,756.00. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CHARLESWORTH J: 1 In this matter, oral reasons for judgment were delivered on 20 November 2018. This is a written record of the Court's reasons, with some insubstantial revisions. 2 This is an application for an extension of time in which to appeal from a judgment and orders of the Federal Circuit Court of Australia (FCC). The primary judge dismissed an application for judicial review of the decision of the Administrative Appeals Tribunal. The Tribunal, in turn, affirmed a decision of a delegate of the (then-titled) Minister for Immigration and Border Protection, to cancel the first applicant's Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa. The second and third applicants are family members of the first applicant, Mr Salaria. By the operation of s 140 of the Migration Act 1958 (Cth), the cancellation of Mr Salaria's visa had the automatic consequence that the visas held by these family members were also cancelled. I will refer to Mr Salaria as the applicant. 3 The delegate cancelled the applicant's visa in the exercise of the power conferred by s 116 of the Act. 4 Section 116 of the Act conferred a power on the delegate to cancel the applicant's visa if the delegate was satisfied that a condition for the grant of the visa had been breached. It was a condition of the visa held by the applicant that he work only in the occupation listed in the most recently approved nomination for him as the holder of a subclass 457 visa. Broadly speaking, the effect of that condition was that the applicant was required to work only in the occupation of a cook and only for his nominated employer. The Tribunal affirmed the delegate's decision and in doing so reached the conclusion that the applicant had breached that condition because he had obtained employment and worked as a taxi driver. Accordingly he had not worked only in the occupation nominated in respect of the visa. 5 The grounds for judicial review before the FCC were cast in terms that reflected the status of the applicant as a self-represented litigant. They are set out at [12] - [15] of the reasons of the primary judge as follows: 12. The applicant first arrived in Australia in July 2007, pursuant to a student visa. He studied community welfare, cookery and hospitality in this country. Whilst he was a student, he drove taxis, on a part-time basis, to support himself and his family. 13. On 25 May 2015, the applicant was granted a sub-class 457 (temporary work (skilled)) visa, pursuant to the Migration Act 1958. The visa in question was subject to condition - namely that the applicant could only work in the occupation listed in the visa for the employer, who was nominated to provide his employment in that occupation. In the applicant's case, his visa nominated him to work only as a cook for his sponsor, Trehan & Sharmas Pty Ltd, which operates a restaurant in Murray Bridge. 14. In July 2016, information came to the attention of a delegate of the Minister for Immigration & Border Protection that the applicant had been working as a taxi driver, in contravention of his visa condition. The applicant's wife and child are classified as secondary visa holders, whose entitlement to remain in Australia depends on the continuing grant of a visa to the applicant. 15. On 8 July 2016, the Minister's delegate wrote to the applicant in the following terms: 'The standard business sponsor who nominated you in the most recently approved nomination for the visa is TREHAN & SHARMAS PTY LTD (the sponsor) who nomination was approved on 25 May 2015 for you to work for them in the occupation of a Cook 351411. Reliable information received from the Department reveals that you have been driving a taxi since January 2015. Driving a taxi or even holding a taxi license demonstrates that you have not only been performing the duties performed by a Cook 351411. Based on the information it appears that Rajesh SALARIA has not worked in the occupation listed in the most recently approved nomination for the visa. If this is correct, your visa may be cancelled under paragraph 116(1)(b) of the Migration Act 1958 because you have not complied with a condition of the visa.' 6 In addition, the applicant filed an affidavit in which he sought to challenge the Tribunal's conclusion that he had worked as a taxi driver in the following terms: I have stated to tribunal officer that I started my work around 2.30 pm and finished around 9 - 9:30 pm. It takes around 1 hour to go to work from my house. I live in Norwood and my work is in Murray bridge. I reach home at night and go to sleep. In morning I spend time with my daughter, get some groceries if needed, have food, and go to work. There is no time for me to work anywhere else. Member did not understand this. There is no scope that I can work anywhere else. I had informed member that I have not shared my taxi pin with anyone. This is true as I did not. I told member that many times my pin renewal papers were kept in taxi and it is highly possible that drivers would have seen it. This pin is not in my bank pin it's just a taxi pin. Member had a different point of view in this scenario and misunderstood my statement. Member made error in his decision. 7 The primary judge detected no jurisdictional error affecting the decision of the Tribunal. 8 In the course of the proceedings before the FCC, the applicant made additional submissions to the effect that he had indeed been working as a taxi driver. He then sought before the learned primary judge to provide an explanation as to why the Tribunal ought not to have exercised the discretion to cancel the visa. The primary judge said in relation to the submissions of the applicant (at [49]): The difficulty arising in this case is that, on judicial review, the applicant has articulated a reason for the applicable discretion to be exercised in his favour, which he did not articulate before either the delegate or the AAT, namely that he had been employed by an unscrupulous employer, who did not pay him appropriately and this state of affairs drove him to breach his visa condition. 9 Later his Honour said (at [53]): In this case, the applicant elected to mislead both the delegate and then the Tribunal regarding the circumstances surrounding his breach of visa condition. Thereafter, before this court, he has decided to put his case on a different tack in regards to his application, which he did not take before the Tribunal. In my view, because this issue was not raised before the Tribunal, it cannot later be found to constitute a jurisdictional error. 10 The application for an extension of time in which to appeal was filed in this Court about six weeks out of time. This Court has the discretion to extend the time in which to appeal. The principles guiding the exercise of the discretion are well settled. Among the relevant factors are the length of the delay, the adequacy of any explanation given for the delay, the prejudice that might be suffered by the respondent if an extension of time were granted, the prejudice that might be suffered by the applicant if the extension were to be refused, and relatedly, the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 - 349. These principles are not to be taken as exhaustive: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33] - [36] (per Griffiths J). 11 In relation to any assessment of the merits of the appeal, Mortimer J in MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 said: 6. Even in circumstances where the Court is persuaded on the basis of the kinds of factors referred to that an extension of time may be appropriate, the prospects of success of any appeal may be determinative of the manner in which the Court's discretion should be exercised. That is because it is not in the interests of the administration of justice to utilise the resources of the Court and of other parties where there is no realistic prospect the appeal will succeed if an extension is granted. Such a process also exposes an applicant to the risk of significantly greater legal costs if the appeal is unsuccessful and the Court makes the usual order as to costs. 7. An application for an extension of time provides an opportunity for the Court to consider the merits of arguments on an appeal, perhaps more promptly than might occur in an appeal as of right. The prospects of success must be considered, paying due attention to the fact the arguments have not been fully developed and the Court does not possess all of the evidence it might on an appeal. Even where there is explicable delay, it is likely the Court's determination will best serve a balance between fairness to an applicant and the appropriate use of the Court's and other parties' resources if leave is refused in respect of matters which enjoy no realistic prospects of success. 12 In an affidavit filed on 26 June 2018 in support of his application, the applicant gave the following explanation for the delay (without alteration): Federal Circuit court gave decision on my application on 06/04/2018. I am self represented. I do not have any lawyer or legal advise. I was not aware that I can challenge Federal circuit court decision. I only knew that I have applied in court and its was refused so its all done. One of my community member advised me that this can be challenged to Federal court and then I googled federal court and got a landline number and ask them the procedure ... 13 The affidavit goes on to say that the applicant's employer had been found guilty of underpaying employees and taking advantage of them, including those who had been sponsored by a 457 visa. The affidavit asserts that Fair Work Australia had imposed fines on the employer. The applicant states that his case is now before the South Australian Employment Tribunal. 14 For the Minister it is submitted, correctly, that no prejudice in the relevant sense would be suffered should the application for an extension of time be granted except to say that the proposed appeal is, the Minister submits, wholly without merit. 15 In having regard to the explanation for the delay in commencing the appeal I give considerable weight to the circumstance that the applicant is a self-represented litigant. That is merely one circumstance to weigh in the balance. I am of the view that the question of whether or not an extension of time should be granted in this particular matter should turn on an assessment of the merits of the proposed appeal and it is to that topic which I now turn. 16 The proposed grounds of appeal are set out in a draft notice of appeal marked MFIA-1. There are three paragraphs. The first merely states that the applicant is authorised to make an affidavit. That is not a proper ground of appeal and need not be considered further. 17 The second paragraph states that there is jurisdictional error in the Tribunal's judgment. No particulars are provided. 18 The third proposed ground of appeal is expressed in the same terms as the ground for judicial review before the primary judge, except that it concludes with the following statement: I had applied in Federal Circuit Court but respected judge failed to find jurisdictional error in judgment. Tribunal made grave jurisdictional errors in the decision. Tribunal asked itself wrong questions and did not put enough weight on right facts. 19 The role of this Court on an appeal is to detect appealable error affecting the decision of the primary judge. In turn, the task of the primary judge was to discern and if discerned, correct any jurisdictional error affecting the decision of the Tribunal. The grounds for judicial review as originally cast asserted that the Tribunal had erred in determining that the applicant had worked as a taxi driver and had therefore breached the condition of his visa. In light of the submissions made before the FCC and in light of the submissions made before this Court in support of the application, I consider the challenge to that aspect of the Tribunal's decision to have been abandoned. 20 As in the FCC, the applicant made submissions in support of this application to the effect that he had been underpaid by his nominated employer and significantly so. The applicant relied on documents which confirm that a former employer was issued a compliance notice by the Fair Work Ombudsman and ordered to repay underpaid wages. I will proceed on the bases that the applicant presently has proceedings on foot in the South Australian Employment Tribunal in relation to the breach of his work conditions, including the payment of wages and superannuation, that judgment on that application is reserved and that the result of the application is of course accordingly unknown. 21 At the commencement of the hearing of this application, the applicant made an application for an adjournment on the ground that he was awaiting judgment from the South Australian Employment Tribunal in respect of the underpayment of his wages. Judgment in that proceeding, the applicant submitted, would enable him to furnish proof before this Court that he had told the truth before the learned primary judge concerning his reasons for working in a second occupation. I did not consider that the grant of an adjournment was either necessary or appropriate. The primary judge implicitly, if not expressly, accepted the applicant's assertions or evidence that he had, in fact, worked as a taxi driver. The proceedings before the learned primary judge did not fail because the FCC did not believe the applicant. The proceedings failed because the learned primary judge could not detect jurisdictional error affecting the decision of the Tribunal. 22 As the primary judge stated, the Tribunal was obliged to determine the review of the delegate's decision on the material before it. It could not constitute jurisdictional error for the Tribunal to fail to determine the review before it on the basis of evidence that the applicant had not, in fact, given. Indeed, it is clear from the reasons given by the Tribunal that the applicant persisted with an assertion that he had not worked as a taxi driver and he was disbelieved in that regard. The grounds for the proposed appeal do not particularise any appealable error on the part of the primary judge. Nor is any jurisdictional error identified in respect of the decision of the Tribunal. 23 I weigh in the balance the explanation given for the delay, the merits of the proposed appeal, and the prejudice to either party in respect of the outcome. In my view, however, it is not in the interests of justice to grant an extension of time in which to appeal because the appeal cannot possibly succeed. The application should be refused. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.