Anna v Minister for Immigration

[2018] FCCA 3183

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANNA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3183

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – non-compliance with PIC 4020 – previous use of bogus documents – refusal to waive the criterion – Tribunal misstated the effect of PIC 4020 – whether a jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.349, 359AA

Migration Legislation Amendment Regulations 2011 (No 1) (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Applicant WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 236 FCR 593
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Hossain vMinister for Immigration [2018] HCA 34
Minister for Immigration v Yusuf [2001] HCA 30, (2001) 206 CLR 323

Applicant: GIRISH KUMAR ANNA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1133 of 2017

Judgment of: Judge Driver

Hearing date: 5 November 2018

Delivered at: Sydney

Delivered on: 10 December 2018

REPRESENTATION

Solicitors for the Applicant: Mr M Arch of Concordia Pacific

Solicitors for the Respondents: Ms B Griffin of Australian Government Solicitor

ORDERS

1. The application lodged on 11 April 2017 and filed on 12 April 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1133 of 2017

GIRISH KUMAR ANNA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant, Mr Anna, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 March 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Anna a temporary partner visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. Mr Anna is a citizen of India who originally entered Australia on 18 July 2009 as the holder of a student visa.

4. On 16 January 2013, Mr Anna applied for a skilled independent visa.

5. On 25 July 2014, the Minister’s Department refused the application for the skilled independent visa on the basis “that the applicant had provided false information and bogus documents in respect of his claimed overseas work”[1], and that he therefore did not satisfy Public Interest Criteria (PIC) 4020 of Schedule 4 to the Migration Regulations 1994 (Cth) (Regulations).

   [1] Relevant Documents (RD) at 240 – 241 ([39] of the Tribunal’s decision)

6. Mr Anna did not seek review of the decision to refuse his application for the skilled independent visa.

7. On 11 August 2014, Mr Anna made the application for the temporary partner visa that gives rise to these proceedings.

8. On 24 June 2016, the Minister’s Department refused Mr Anna’s application for the temporary partner visa on the basis that he had previously been refused a visa (namely the skilled independent visa) by reason of his non-satisfaction of PIC 4020 “within the relevant timeframe”.[2]

   [2] RD 139

9. Mr Anna then sought merits review before the Tribunal.

10. The Tribunal noted that Mr Anna and his sponsor gave evidence at a hearing on 15 March 2017.[3]  The Tribunal noted Mr Anna’s evidence as follows:

    a)he had been in a de facto relationship with the sponsor since October 2013 and he was living in the sponsor's home. The sponsor’s ex-husband had passed away in 2010.[4] The sponsor and her late husband had one daughter together who lived with Mr Anna and the sponsor. The sponsor had not told him anything about her ex-husband or that side of the family. The sponsor’s daughter was attending a selective high school at Baulkham Hills, was progressing well at school, undertaking extra tuition and participating in Tae-Kwon-Do and ballet. He said that she did not have many friends but knew of one friend, Maggie, who had recently changed schools;[5]

    b)he was aware of the Minister’s Department's decision regarding the refusal of his skilled independent (subclass 189) visa application, but did not seek review. He did not agree that he had provided false information and bogus documents;[6] and

    c)he gave evidence about friends of himself and his sponsor and claimed that about 10 friends attended their wedding. If the partner visa were refused, the sponsor would stay in Australia and sponsor him for a partner visa. He said that he was concerned for the sponsor and her daughter if he were required to return to India.[7]

    [3] RD 237 at [12]

    [4] It appears that this was in fact evidence from the sponsor but nothing turns on that

    [5] RD 238 at [16]-[23]

    [6] RD 238 at [20]

    [7] RD 239 at [24]

11. The Tribunal noted the sponsor’s evidence. Relevantly, the sponsor claimed that it was her daughter’s friend Jennifer who changed schools, not her friend Maggie.[8] The Tribunal put that inconsistency to Mr Anna for comment under s.359AA of the Migration Act 1958 (Cth) (Migration Act) and noted his response.[9] 

    [8] RD 239 at [25]-[33]

    [9] RD 240 at [34]

12. The Tribunal considered that the issue before it was whether Mr Anna met PIC 4020 as required by clause 820.226 of Schedule 2 to the Regulations. The Tribunal summarised PIC 4020 and noted that the requirements in PIC 4020(1) and (2) could be waived if there were certain compelling or compassionate reasons justifying the granting of the visa.[10]

    [10] RD 240 at [36]-[37]

13. The Tribunal was satisfied on the evidence before it that, as Mr Anna’s subclass 189 visa application was refused because he did not satisfy PIC 4020(1) less than a month prior to the partner visa application being made, PIC 4020(2) was not met.[11]

    [11] RD 241 at [44]

14. Having considered the documentary and oral evidence before it, and the circumstances of the sponsor and her daughter, the Tribunal was not satisfied that the circumstances, individually or cumulatively, were sufficiently compelling or compassionate to justify the granting of the partner visa.[12]

    [12] RD 244 at [67]

The present proceedings

1. These proceedings began with a show cause application lodged on 11 April 2017 and filed the following day.  Mr Anna continues to rely upon that application.  There is one ground in it:

   Ground 1: The Administrative Appeals Tribunal committed jurisdictional error by misinterpreting Public Interest Criterion 4020 of Schedule 4 of the Migration Regulations 1994.

   Particulars

   1. The Tribunal erred when it held (at paragraphs 44, 66 and 69 of its Decision Record) that the applicant was “barred” from filing the Partner visa application that is the subject of these proceedings by virtue of Public Interest Criterion 4020(1).

   2. Public Interest Criterion 4020(1) does not, properly construed, operate to “bar” the filing of any visa application.

   3. The Tribunal’s incorrect interpretation of the effect of Public Interest Criterion 4020 led it to erroneously affirm the Minister’s decision to refuse the applicant’s visa application.

2. The only evidence I have before me is the book of relevant documents filed on 23 June 2017. 

3. The parties filed pre-hearing written submissions and made oral submissions through their legal representatives at the trial on 5 November 2018.

Consideration

Mr Anna’s contentions

1. The Tribunal’s decision to affirm the refusal of the application for the temporary partner visa is said to have been based on its conclusion that Mr Anna was “barred” from filing the application.  The Tribunal’s decision so records at [66], where the Tribunal stated: [13]

   The decision to refuse the applicant the subclass 189 Skilled Independent visa as the applicant did not meet the PIC 4020(1) criteria was made on 25 July 2014. Accordingly, the applicant would be barred from filing any further application until 26 July 2017 unless the criteria were waived.

   (applicant’s emphasis retained)

   [13] RD 244

Analysis of the applicable law

1. The criteria relevant to the determination of an application for a temporary partner visa application are provided in clause 820 of Schedule 2 to the Regulations.

2. The criteria of clause 820 include two separate “headings” relevant to “primary applicants”. Clause 820.21 provides a heading reading “Criteria to be satisfied at time of application”, while clause 820.22 reads “Criteria to be satisfied at time of decision”.

3. None of the sub-clauses in clause 820 that appears under the heading “Criteria to be satisfied at time of application” specifies that an applicant who has had an earlier visa application refused by reason of non-satisfaction of PIC 4020 within three years of the making of the application for the temporary partner visa is barred from filing such an application within the three year period following the earlier refusal.

4. The complete absence of any criterion under the heading “Criteria to be satisfied at time of application” stating that an application may not be made by an applicant who has previously had an earlier visa application refused by reason of non-satisfaction of PIC 4020 supports an interpretation that clause 820 of the Regulations does not provide for any such bar.

5. Clause 820.226 appears under the heading of clause 820.22, “Criteria to be satisfied at time of decision”.

6. Clause 820.226 provides that it is a criterion for the grant of a temporary partner visa that:

   The applicant satisfies public interest criteria 4020 and 4021.

7. The fact that clause 820.226 appears below the heading “Criteria to be satisfied at time of decision” supports the interpretation that an applicant who has had a previous application refused by reason of non-satisfaction of PIC 4020 is not barred from filing the further application.

8. PIC 4020 relevantly provides as follows:

   (1)     There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part-5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)     the application for the visa; or

   (b)     a visa that the applicant held in the period of 12 months before the application was made

   (2)     The Minister is satisfied that during the period:

   (a)     starting 3 years before the application was made; and

   (b)     ending when the Minister makes a decision to grant or refuse the visa;

   The applicant and each member of the family unit of the applicant has not been refused a visa because if a failure to satisfy the criteria in subclause (1).

   (applicant’s emphasis retained)

9. It is said to be of “signal importance” to these proceedings that PIC 4020 does not contain any language within the entirety of its text that states that an applicant is barred from making a further visa application if that applicant has suffered the refusal of a previous visa application within the three year period preceding the making of the further visa application.

10. The references in subclause PIC 4020(2)(b) to the making of a decision to grant or refuse the visa indicate that the proper interpretation of PIC 4020 is that it prevents the grant of a further visa to an applicant who has had a prior application refused by reason of non-satisfaction of PIC 4020 within the three year period prior to the time of the making of a decision by the Minister’s Department as to whether to grant or refuse the subsequent visa application.

11. Furthermore, if it were the case that PIC 4020 were to be interpreted to preclude the filing of a visa application by an applicant who has had a prior application refused by reason of non-satisfaction of PIC 4020, then the words in subclause 4020(2)(b) would “have no work to do”.  That these words have been included in this subclause supports the interpretation that PIC 4020 does not impose a bar against the filing of a further application, but rather that the clause operates to prohibit the grant of a further application until the three year period following the making of the original or first application that has been refused has expired.

12. The Explanatory Statement that was issued by the Minister at the time of recent amendments to PIC 4020[14] also supports the interpretation that the regulation does not impose a bar against the filing of a further application, as the Tribunal concluded in this case, but rather, is intended to prevent the grant of a further visa. The Explanatory Statement provides that the purpose of PIC 4020 is to:

    prevent the grant of a visa if the application has had a (sic) application refused under subclause 4020(1) and makes a subsequent application within the period commencing three years before the current application was made, and ending when the Minister makes a decision to grant or refuse the application.

    (applicant’s emphasis retained)

    [14] The amendment is said to have been made by Migration Legislation Amendment Regulations 2011 (No 1) (Cth) dated 26 June 2011 but that has not been verified

13. There is no language in this Explanatory Statement which states that the purpose of PIC 4020 is to bar the filing of further applications by applicants who have suffered previous refusals due to non-satisfaction of PIC 4020.  Rather, the Explanatory Statement, like the wording of PIC 4020 itself, contemplates that PIC 4020 will be applied as an instrument to govern the determination of applications once made.

14. The High Court stated in Craig v South Australia:[15]

    If…an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

    [15] [1995] HCA 58; (1995) 184 CLR 163 at [179]

15. This passage from Craig v South Australia was quoted with approval by McHugh, Gummow and Hayne JJ at [82] of their reasons in Minister for Immigration v Yusuf.[16]

    [16] [2001] HCA 30, (2001) 206 CLR 323

16. McHugh, Gummow and Hayne JJ made the following additional observations concerning the nature of jurisdictional error in Yusuf, also at [82]:

    “Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive….. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, in that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have the authority to make the decision that was made; he or she did not have jurisdiction to make it.

17. In this case, Mr Anna submits that the Tribunal’s misinterpretation of law, namely PIC 4020, caused the Tribunal to proceed on the erroneous basis that Mr Anna was barred from filing the application for the temporary partner visa for the three year period from the prior refusal of the application for the skilled independent visa.

18. This misinterpretation is said to have caused the Tribunal to identify a wrong issue, or to ask itself the wrong question, namely, whether Mr Anna was “barred” from filing a further application.

19. The issue that the Tribunal should have identified, and the question that it should have asked itself in this case, was instead whether Mr Anna satisfied the criteria for, and thus whether he was eligible for, the grant of the  temporary partner visa.

Minister’s contentions

1. The Minister concedes that it is indisputable that PIC 4020 does not prevent Mr Anna from filing an application for a partner visa. It can be accepted that the Tribunal misstates the effect of PIC 4020 at [66] of its decision. So much is clear from the terms of PIC 4020. Nevertheless, the question before the Court is whether that misstatement demonstrates that the Tribunal misunderstood its statutory task under clause 820.226 of Schedule 2 to the Regulations and PIC 4020 of Schedule 4 to the Regulations, which it correctly identified as the issue before it.[17]

   [17] RD 240 at [36]

2. Clause 820.226 relevantly requires Mr Anna to satisfy PIC 4020. The Tribunal’s statutory task under PIC 4020 relevantly requires it to first determine whether Mr Anna met PIC 4020(1) and (2).  If Mr Anna does not satisfy those subclauses, they can nevertheless be waived if the Tribunal was satisfied that there were compelling or compassionate circumstances justifying the granting of the visa.

3. The Minister submits that a fair reading of the Tribunal’s decision as a whole illustrates that the Tribunal understood its statutory task pursuant to PIC 4020 and the misstatement of the legal effect of PIC 4020 at [66] of its reasons, while unfortunate, did not result in jurisdictional error.

4. As stated above, the Tribunal summarised PIC 4020 in its reasons for decision.[18]  In that summary, the Tribunal correctly summarised the legal operation and effect of PIC 4020. Significantly, the Tribunal did not use any language to suggest that Mr Anna would be statutorily barred from lodging the partner visa application.

   [18] RD 240 at [36]-[37]

5. Further, having found that Mr Anna did not meet PIC 4020(2) of Schedule 4 to the Regulations, the Tribunal directed its attention to its statutory task of considering whether the requirement under PIC 4020(2) should be waived because there are compassionate or compelling circumstances to justify the granting of the visa.[19]

   [19] RD 241 at [45]

6. It is said to be telling that the Tribunal’s decision was to affirm the decision not to grant Mr Anna a partner visa.[20] If the Tribunal had found that Mr Anna was statutorily barred from applying for the visa, that is, he was ineligible to make the application in the first place, one would imagine that the Tribunal’s decision would be to vary the delegate’s decision under s.349(2)(b) of the Migration Act to find that Mr Anna was ineligible for the grant of the partner visa. The Tribunal did not so find. This indicates that the Tribunal’s misstatement of the legal effect of PIC 4020 did not amount to jurisdictional error.

   [20] RD 244 at [70]

7. The Minister submits that, in any event, it is apparent that the Tribunal was correct to find that Mr Anna could not meet PIC 4020(1) until 26 July 2017, being three years after the delegate’s finding that Mr Anna had given or caused to be given a bogus document or information that is false or misleading. PIC 4020 must be met for the grant of a partner visa. In circumstances where the Tribunal applied the correct law, the misstatement at [66] of its reasons for decision was not material to its decision.[21]

   [21] see Hossain vMinister for Immigration [2018] HCA 34 at [29]-[31]

8. Lastly, the Minister submits that the Tribunal’s decision is not to be scrutinised with an eye keenly attuned to error.[22]  The Tribunal’s use of the word “barred” is said to be no more than infelicitous language that cannot amount to a jurisdictional error.  Mr Anna’s submissions urge the Court to adopt the precise approach that the Full Court in Applicant WAEE cautioned against.

   [22] see Applicant WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 236 FCR 593

9. For completeness, the Minister points out that it is unclear why Mr Anna’s ground of review refers to [44] and [69]. The Tribunal did not hold that Mr Anna was “barred” from filing the partner application in those two paragraphs, and they are not otherwise canvassed in his written submissions. The Tribunal’s findings at [44] and [69] are said to have been open to it on the evidence before it.

Resolution

1. The application raises a single ground of review contending that the Tribunal committed a jurisdictional error by misinterpreting PIC 4020. The gravamen of Mr Anna’s contention is that the Tribunal’s finding at [66] that “the applicant would be barred from filing any further application until 26 July 2017 unless the criteria were waived” was an incorrect statement of the law, which error vitiated the Tribunal’s decision.

2. It is not disputed or disputable that the Tribunal at [66] misstated the legal effect of PIC 4020 when it stated:

   Accordingly, the applicant would be barred from filing any further application until 26 July 2017 unless the criteria were waived.

3. The consequence of non compliance with the public interest criterion was not to impose a bar on filing any further visa application, but, rather, to impose an essential visa criterion that needed to be satisfied before any further visa application could be granted.  In that regard, PIC 4020 is different from condition 8503 (no further stay) which does impose a more substantive barrier to further visa applications unless the condition is waived.

4. If the Tribunal seriously thought that non compliance with PIC 4020 had the same effect as condition 8503 then it would have been dealing with an application to waive the criterion rather than an application for a grant of the visa sought.

5. If the legal effect of non compliance with PIC 4020 was to impose a bar on the filing of any further application then, unless the criterion were waived, any further application filed would be invalid.  That would impose a jurisdictional limitation both upon the delegate and the Tribunal.  Neither could deal with an invalid visa application.

6. If the Tribunal had given any serious thought to what it was writing at [66] it would have concluded, if it thought it was correctly stating the law, that it had no jurisdiction in relation to the visa application before it.  That, however, was not the decision made.  The decision made was to affirm the decision of the delegate not to grant the visa sought.[23] That decision was incompatible with the erroneous statement at [66].

   [23] see RD 244 at [70]

7. In my opinion, it necessarily follows that the legal error made at [66] had no impact on the outcome because it did not alter the decision at [70]. For that reason, the error does not go to jurisdiction.

Conclusion

1. Mr Anna has failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 10 December 2018