Singh v Migration Review Tribunal

'To Whom it may Concern, TERMINATION OF 457 BUSINESS SPONSORSHIPS For Consultants Exchange A'Asia Pty Ltd - PQBS - 170502623 I am acting on behalf of the above named company and wish to advise that they will be terminating their sponsorship with regards to the following person: Name: DOB: Last known address: Tejinder Singh 06/06/79 189 Blackburn Road Blackburns Hill VIC 3130 Yours faithfully Allison McMillin Ingrid Webber Ambler Collins Pty Ltd General Manager on behalf of Consultants Exchange A'Asia Pty Ltd' The decision of the departmental officer to cancel the visa is dated 22 July 2003 and timed at 10.07 am. The notification of the decision is dated at 10.10 am on 22 July 2003 and the applicant's signature appears on that notification showing a time of 10.12 am on 22 July 2003. As the MRT was advised on behalf of the applicant, it seems tolerably clear that 'Consultants Exchange Australasia had [not] withdrawn their sponsorship of the applicant until representations were made to them by DIMIA on 22/7/03.' 12 The MRT concluded that it was positively satisfied that the correct and preferable decision was that the subclass 457 visa granted on 8 October 2002 should be cancelled. The MRT affirmed the decision under review to cancel the Temporary Business Entry (Class UC) visa which the applicant held. 13 The grounds for relief sought by the applicant under the Judiciary Actand the Migration Actare: '2. The Tribunal denied the applicant procedural fairness in that the Tribunal was required to exercise discretion and balance the reasons for and against the desirability of affirming the decision of the Delegate to cancel the applicant's visa but failed to record the reasons against affirming the decision or the relative weight to be ascribed to them. 3. The Tribunal committed an error of law in that it did not quash the decision of the Delegate for the denial of procedural fairness to the applicant in that: (a) In the Decision - Part B - Record of Decision Whether to Cancel Visa - Section 7 - Decision, the Delegate was required to exercise discretion and balance the reasons for and against the desirability of canceling the visa but failed to record the reasons against canceling the visa or the relative weight to be ascribed to them including that the applicant had been compliant in all dealings with the Department. (b) In the Notice of Intention to Consider Cancellation - Part A - Section 9, the Delegate was required by the Migration Act 1958 (the "Act") at s 119(a) to "give particulars of those grounds" and no particulars of grounds were given. (c) The Delegate was required to give the applicant a reasonable time to prepare his case why grounds do not exist but only gave the applicant one business day as the alleged breach was recorded at 8.46 pm on a Friday evening on 18 July 2003 but the applicant was required to attend at interview at 10.00 am on 22 July 2003 which was insufficient time for the applicant to seek legal advice on his position and copies of a large number of documents from his employer. (d) The applicant was threatened by the Delegate of being placed in immigration detention if he did not sign the Notice of Intention to Consider Cancellation - Part C - Notification of Decision to Cancel Visa under s 116 of the Migration Act 1958 - Section 9 that he had received the Part B - Record of Decision Whether to Cancel Visa. (e) The decision at interview was reached by 10.07 am on 22 July 2003 for an interview scheduled to commence at 10.00 am which was not sufficient time for the applicant to present his case in the detail required. 4. The Tribunal ignored relevant material in a way that affected the exercise of its power in that at no time was the second respondent able to produce evidence of the termination of the applicant's employment against the applicant's evidence that his employment had never been terminated. 5. The Tribunal identified a wrong issue or alternatively relied on irrelevant material in a way that affected the exercise of its power in that at paragraph 16 of the Decision it found the applicant to be "an independent contractor and not an employee" when the definition of an employee includes those working as independent contractors who are exclusively offering their labour services. 6. The Tribunal ignored relevant material in a way that affected the exercise of its power in that while it was evident that the applicant was still employed as he had received no termination notice but was awaiting the next assignment from the sponsoring employer, he had little choice but to take other employment such as driving a taxi to enable him to continue basic subsistence. 7. ADDITIONAL GROUND - The applicant was denied procedural fairness in that the Tribunal used in its decision matters that it had led the applicant to believe at the hearing were not relevant or would not be used against him: (a) The Tribunal declined to hear submissions on a matter deemed to be irrelevant being the fact that the sponsoring company had withdrawn its sponsorship on 22 July 2003 but then used that matter in the determination of its decision. (b) The tribunal led the applicant to believe the exact name of the company for which he worked had not been the sponsoring company which was a breach for which he could not be held accountable but then used that against him in its decision. 8. ADDITIONAL GROUND - The Tribunal committed jurisdictional error in that it ignored relevant evidence being that the sponsoring company only expressed an intention to terminate its sponsorship but had never done so in its determination that the sponsoring company had withdrawn it sponsorship.' 14 The decision of the MRT is a privative clause decision pursuant to s 474(2) of the Migration Act. The High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 held that decisions taken in breach of the rules of natural justice are not within the scope of the protection afforded by s 474 of the Migration Act. Grounds 2 and 3, and 7 and 8 allege a breach of the rules of natural justice. 15 So far as ground 2 is concerned, that ground is essentially an attack on the adequacy of the reasons and, as such, is not a proper basis for review: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. A fair reading of the reasons of the MRT indicates that there was a weighing up by the MRT of relevant considerations, including the considerations weighing against affirming the decision. 16 The particularised allegations of denial of procedural fairness in ground 3 seem to be directed at breaches of procedural fairness by the original decision maker. The detailed facts seem to suggest that there was a very swift rush to judgment by the delegate, as the notification of intention to cancel was recorded at 8.46 pm on evening of Friday 18 July 2003; the applicant was required to attend at interview at 10.00 am on 22 July 2003; and the decision to cancel was made at 10.07 am on 22 July 2003. 17 However, there are no cognate allegations against the way the hearing in the MRT occurred. Section 349 of the Migration Act provides that the MRT may affirm, vary or set aside the decision of the Minister's delegate, and s 349(1) provides that in so doing the MRT may 'exercise all the powers and discretions that are conferred by this Act on the person who made the decision.' 18 The role of the MRT is to decide what was the correct or preferable decision on the material before the MRT. A Full Court of the Federal Court in The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234 said: 'It is, of course, well established that the Tribunal determines what was the correct or preferable decision having regard to the whole of the evidence placed before it. It is not confined to the evidence which was before the primary decision-maker. The Tribunal is, however, obliged to address the same question as was before the primary decision-maker. This distinction was spelled out by Davies J in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342.' 19 Weinberg J in Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 said at 526: '… The issue properly before the IRT was not whether or not the respondent had an entitlement to a new student visa but rather whether or not the cancellation decision was the "correct and preferable" decision. It was that decision alone which could be affirmed or set aside. In setting aside that decision, the IRT was not empowered under the Act to grant a new student visa even if it thought that such an order was necessary or appropriate.' 20 The complaints in the particularised ground 3 cannot give rise to any jurisdictional error on the part of the MRT. 21 With regard to the allegations of a denial of procedural fairness that are made in grounds 7 and 8, the transcript of the proceedings in the MRT reveals that Consultants Exchange Australasia Pty Ltd ("Consultants Exchange Australasia") whose ACN is 083 236 453, according to a statement made by the MRT at the hearing on 3 December 2003. The evidence suggests that the applicant, when he was about to finish his diploma, was introduced to a company called Zinc InfoTech, and that company sent him to Consultants Exchange Australasia to arrange the sponsorship, and that subsequent to the grant of the visa he worked for Zinc InfoTech . That work was subject to an agreement between Mr Singh and cXc Consulting Pty Ltd ("cXc Consulting"), which company paid him consultancy fees. cXc Consulting is a different company from Consultants Exchange Australasia, the ACN for cXc Consulting being 087 819 538. However, it is plain from a letter of 25 September 2002 under a letterhead "cXc Consultants Exchange", that the sponsoring company used a degree of looseness in the business names, and companies, under which it operated. The letter commenced: 'Dear Tejinder Welcome to Consultants Exchange Australasia (cXc), "the" management team. Please find detailed in this letter information to assist you during your contracting period in Australia through one of our companies and in your dealings with cXc. Also enclosed are various forms which you are required to complete and return to our office.' and later: 'As you will be receiving a salary through our company, you are required to complete a Tax File Number Declaration Form (enclosed). Instructions are provided with this Form but if you experience any difficulties in completing it, contact our office to assist you. You will need to return the completed declaration form to cXc.' and later, under the heading "CONTRACT AGREEMENT": 'You will have already completed an "Options Agreement" with cXc, advising us of your personal details. Enclosed is an Agreement between yourself and the nominated cXc company which employs you.' 22 The Tribunal member said to the migration agent acting for the applicant: 'So without knowing it, your client was in breach of 8107 from day one?' and the agent said: 'Yes, I agree with you. Without knowing, yes.' 23 At the MRT hearing, the applicant's agent referred to the facsimile of 22 July 2003 set out above, which appears to be by Amber Collins Pty Ltd, Immigration and Commercial Consultants on behalf of Consultants Exchange Australasia, which was faxed to the Department 'two hours after the decision was made', 24 The Tribunal Member noted: 'The Department haven't nominated as a ground for cancellation that the sponsorship was withdrawn'. And: 'Therefore, I'm not interested.' The Member continued: 'If they had stated as a ground for cancelling your visa that the sponsorship had been withdrawn, then I would be looking at that ground this morning, but they haven't, and therefore I don't need to address whether that company had the right to withdraw the sponsorship or not.' 25 As appears from the reasons of the MRT, the MRT did not indicate that it would not make a finding that the applicant had never worked for the sponsoring company. What the MRT indicated was that it was unnecessary for it to consider whether the company had withdrawn its sponsorship or whether the company had the right to withdraw the sponsorship. The MRT reinforced that position by saying: 'The circumstances relating to the cancellation are the driving, not the withdrawal of sponsorship. I don't need to go into the withdrawal of sponsorship. It's got nothing to do with it.' And: 'The fact that somebody rang up the former employer and got them to withdraw the sponsorship has got nothing to do with it. It's out there in left field. We don't need to touch it.' 26 It is true that par 32 of the MRT's reasons contains the sentence, 'The sponsoring company advised the Department that he had ceased working for them.' This statement is incorrect: the facsimile on behalf of Consultants Exchange Australasia advised that 'they will be terminating their sponsorship with regards to' the applicant. The evidence did establish that the applicant, since his return from India in March 2003 had not worked for Zinc InfoTech or Consultants Exchange Australasia or cXc Consulting. I do not accept that it can be fairly said that the MRT misled the applicant in any respect in respect of the hearing in the MRT on Wednesday 3 December 2003. 27 Ground 6 appears to be a restatement of the matters referred to in ground 4. It seems plain from the transcript of the hearing by the MRT that it did not consider it necessary to make a decision as to whether the applicant's "employment" by the sponsor had been terminated. The MRT recognised that the applicant had claimed he tried to get work in the IT industry and was unable to do so, and for that reason started driving taxis. The MRT noted that the applicant had claimed that he had worked for Zinc InfoTech until December 2002 when he returned to India, and on his return to Australia in March 2003 had attempted to contact Zinc InfoTech without success, and had left messages for cXc Consulting which were not favoured with any response. It noted that his relationship with his girlfriend had broken up, that he was running short of money, and that as a consequence he had started driving taxis. It is plain, in my opinion, that these matters were not only identified by the MRT, but taken into account in the exercise of the statutory discretion. 28 Ground 5 of the applicant's application is directed to the statement in par 16 of the reasons of the MRT that the agreement between cXc Consulting and the applicant was structured so that 'the visa applicant is an independent contractor and not an employee.' The sentence dealing with the structure of the agreement in the middle of par 16 is followed by the sentence that there was a PAYE payment summary for the period from 1 December 2002 to 17 December 2002 showing that payments were made by cXc Consulting to the applicant. The characterisation by the MRT seems to accord with some of the provisions of the agreement dated 25 September 2002. Clause 2.1 of that agreement provides: 'The Specialist is engaged by the Company in the capacity of a computer Specialist and will be paid consultancy fees calculated from the revenue received by the Company from third parties who enter into agreements for the Specialist's services (the "Client").' And cl 2.4 provides: 'The Specialist will not be paid by the Company for any periods of sickness, statutory holidays or any non revenue earning periods. The Specialist has no holiday entitlement, paid or otherwise, or long service leave from the Company as there is no employment relationship between them.' 29 However, it seems to me that whether the applicant, during the time of the currency of the agreement between cXc Consulting and the applicant, is properly to be characterised as an "independent contractor" or an "employee", is irrelevant to the decision of the MRT. That decision was based on a breach of condition 8107 which gave rise to a power to cancel the visa pursuant to s 116(1)(b) of the Migration Act. 30 None of the grounds of the application for prerogative relief directed to the MRT has been made out. It follows that the application should be dismissed. 31 Having regard to the circumstance that the initial hearing of this application on 5 May 2004 had to be adjourned to 17 May 2004 because of late delivery to the applicant of the tape recording of the proceedings in the MRT, I indicated then that I would hear the parties on the question of costs. 32 My present view is that the Minister should pay the costs of the applicant thrown away by the need to adjourn on 5 May 2004, but that otherwise the applicant should pay the Minister's costs of and incidental to his application, to be taxed if not agreed. The parties should submit, within seven days, any submissions on costs they might wish to make in the light of my expressed present view on the question of 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 Spender .

Solicitor for the Respondent: Blake Dawson Waldron