BI v Minister for Immigration
[2017] FCCA 2652
•1 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BI v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2652 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Skilled (Provisional) (Class VC) visa – public interest criterion 4020 – bogus document – IELTS test undertaken by imposter – whether the Tribunal erred in deciding not to waive public interest criterion 4020 – whether the Tribunal correctly understood compelling – whether the Tribunal engaged in an active intellectual process in relation to whether there were compelling circumstances affecting the interests of Australia. |
| Legislation: Migration Regulations 1994, cl. 485.216 of Schedule 2, public interest criterion 4020 of Schedule 4 |
| Cases cited: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285; [2005] FCAFC 77 |
| Applicant: | PENG BI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1690 of 2015 |
| Judgment of: | Judge Riley |
| Hearing date: | 5 September 2017 |
| Date of last submission: | 5 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 1 November 2017 |
REPRESENTATION
| Counsel for the applicant: | Guy Gilbert |
| Solicitors for the applicant: | JT Lawyers Pty Ltd |
| Counsel for the first respondent: | Angel Aleksov |
| Solicitors for the first respondent: | Sparke Helmore Lawyers |
| Counsel for the second respondent: | None |
| Solicitors for the second respondent: | Sparke Helmore Lawyers |
ORDERS
The application filed on 23 July 2015 and amended on 21 August 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1690 of 2015
| PENG BI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Migration Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Skilled (Provisional) (Class VC) visa.
One of the requirements for the visa was set out in cl.485.216 of Schedule 2 to the Migration Regulations 1994 (“the regulations”). That clause required the applicant to satisfy public interest criterion 4020.
Public interest criterion 4020 was in Schedule 4 of the regulations. It provided that:
(1)There is no evidence before the Minister that the applicant has given … to the Minister… 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)….
…
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) … if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
…
The applicant said in his visa application that he had achieved a result of competent English in an IELTS test undertaken in Singapore. He included with his visa application a copy of the test results.
The Facial Image Comparison Unit provided to the Minister’s department information that the applicant had not undertaken the IELTS test himself. A delegate of the Minister provided the information to the applicant and invited him to comment on it. The applicant responded that he had gained weight and the digital imaging technology had caused some distortion. The delegate did not accept those arguments and concluded that the applicant had provided a bogus document to the department. The delegate refused the applicant’s visa application for that reason.
Proceedings in the Tribunal
The applicant then applied to the Tribunal for review of the delegate’s decision. During the hearing before the Tribunal, the applicant admitted that he had submitted a bogus document and the applicant did not dispute the Tribunal’s preliminary view that he was not the person who had undertaken the IELTS test that he had provided with his visa application.
During the hearing, the Tribunal discussed the waiver provision in public interest criterion 4020(4) with the applicant. The Tribunal said at paragraph 7 of its reasons for decision the following:
The Tribunal explained PIC 4020(4) and asked the applicant whether there was anything he wished the Tribunal to consider in the event that he did not meet PIC 4020(1). In response, the applicant talked about his decision, along with a friend, to begin investing in real estate in October 2014. He also received a job offer from a local real estate business in Tasmania earlier this year and he is now their Development Project Manager. He wants to contribute to the development of Tasmania, whether this is by way of tax contribution or through local development. He studied urban planning at university and he started another real estate development project in Melbourne, which he is going to complete this year. If things go well he will have a significant amount of income and he hopes to be able to contribute a significant amount of tax as well. The project isn’t of a scale to affect Australia’s national interest but on a local level it might bring housing and tax monies.
The Tribunal concluded that an impostor had undertaken the applicant’s IELTS test and that the applicant had submitted a bogus document to the department. The Tribunal concluded that the applicant did not meet public interest criterion 4020(1).
The Tribunal then turned to a consideration of whether to waive public interest criterion 4020(1) pursuant to public interest criterion 4020(4). The Tribunal said in relation to this issue, at paragraph 18 of its reasons for decision:
The Tribunal has considered the matters raised by the applicant regarding his employment as a Development Project Manager, his real estate investment and development projects, and his contribution to Australia’s tax base. The Tribunal accepts that the matters raised by the applicant make a contribution to Australia. However, on the evidence the Tribunal is not satisfied that they individually or cumulatively reach the standard of compelling circumstances that affect the interests of Australia. Accordingly, the Tribunal finds that the requirements of PIC 4020(1) should not be waived. (emphasis added)
The Tribunal then proceeded to affirm the delegate’s decision not to grant the applicant the visa.
Futility
Before this court, the Minister said that he would not argue that remitting the matter to the Tribunal would be futile because the applicant had not achieved the appropriate result in an IELTS test prior to lodging his application for the visa.
Ground 1
The first ground of review in the application filed on 23 July 2015 and amended on 21 August 2017 is:
The decision of the Tribunal was affected by jurisdictional error in that it failed to complete its statutory task.
Particulars
(a)The Tribunal failed to refer to or apply any meaning of the phrase compelling circumstances when considering the exercise of the discretion to waive Public Interest Criterion 4020;
(b)The Tribunal failed to give genuine, proper and realistic consideration to the applicant’s claims that his circumstances were compelling;
(c)The Tribunal failed to engage in an active intellectual process when considering the claims which the applicant put forward.
The applicant acknowledged that the Tribunal had attached to its reasons for decision a copy of the text of public interest criterion 4020. However, the applicant argued that the Tribunal had failed to set out any of the authorities on the meaning of the word compelling. The applicant argued that, as a consequence, it could not be known whether the Tribunal had applied the correct test.
The applicant said that the relevant authorities on the meaning of the word compelling were Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204; [2005] FCA 211 and MZYPZ v Ministerfor Immigration and Citizenship (2012) 127 ALD 510; [2012] FCA 478.
In Paduano, Crennan J, sitting in the Federal Court, held that the Tribunal had not correctly construed the words compelling reasons for the absence, when the Tribunal said those words required reasons that demand or rouse strong attention, interest or admiration or that ... tend to demand action. Her Honour said:
[31]“Compel” and “compelling” are words of ordinary meaning and the subclause’s expression “compelling reasons for the absence” falls to be construed by reference to well-established principles. In interpreting a statute or delegated legislation the object of the Court is to ascertain the legislative intention as “expressed by the words used”: … Whilst the construction of a statute is a matter of law, the ordinary or natural meaning of an ordinary English word is generally a question of fact: … Resort by courts to dictionaries, to assist in the task of establishing the ordinary or natural meaning of an ordinary word has been well recognised over a long period: …. In the final analysis a court must determine the intention of the legislature and the applicability of ordinary words to specific facts by reference to the meaning of the language and purpose of a particular instrument.
[32] A perusal of commonly used dictionaries indicates that the words “compel” and “compelling” are ordinary English words which have not one, but several connotations. What they have in common is a semantic debt to the Latin pello/pellere — “to force”, “to drive”, “to stimulate”, “to rouse”, but it is clear beyond dispute that the idea of “force” common to many of the dictionary entries is not confined to physical or legal force but includes moral force and the “force” of mental stimuli such as from a “compelling argument”. The Oxford English Dictionary (2nd ed), Vol III gives four definitions for the verb “compel” ranked from “the usual construction” to “rare”:
1. To urge irresistibly, to constrain, oblige, force:
a. a person to do a thing;
b. a person to or (into) a course of action, etc.
2.
a. To take or get by force, to extort;
b. To constrain (an action); to bring about by force, constraint or moral necessity; to exalt by rightful claim; to command.
3. To force to come, go, or proceed; to drive forcibly, to force.
4. To overpower, constrain.
The same dictionary’s entry for “compelling” contains two definitions:
a.That compels: see verb.
b.Of a person, his words, writings etc, irresistible; demanding attention, respect, etc.
(Emphasis added.)
[33] The entry in the Macquarie Dictionary (3rd ed) for “compelling” states:
(of a person, writer, actor, etc) demanding attention or interest. (Emphasis added.)
[34] Webster’s Legal Dictionary gives examples of the meanings of “compelling”:
that compels: tending to demand action or convince. (Emphasis added.)
Webster’s Third New International Dictionary (unabridged, 1993) contains the following expanded meanings for “compelling”:
1.forcing, impelling, driving.
2.demanding respect, honour, or admiration.
3.calling for examination, scrutiny, consideration or thought.
4.demanding or holding one’s attention.
5.tending to convince or convert by or as if by forcefulness of evidence. (Emphasis added.)
The emphasised entries show the sources for the Tribunal’s construction of, or gloss upon, “compelling reasons for the absence”. The balance, the unemphasised, shows what aspects of the ordinary meaning of “compelling” the Tribunal has omitted from its construction of, or gloss upon, the legislative expression.
…
[37]The ordinary meaning of the adjective “compelling” is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. “Compelling” in its wide, ordinary meaning means “forceful”. Forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness, be convincing. There is nothing in the express wording of the relevant subclause which indicates that “compelling”, where it occurs, should be read narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing. Equally, there is nothing in the express wording, or the context, which indicates that “compelling reasons for the absence” must be confined to reasons incorporating an involuntary element, involving circumstances beyond a person’s control, involving physical or legal necessity or cognate with the reasons given as examples in MSI 356.
Those passages make it clear that the word compelling is an ordinary English word. The point of Paduano was that the Tribunal had erred by unduly restricting the meaning of the word compelling. Paduano does not stand to the proposition that the Tribunal must spell out its understanding of ordinary English words. Indeed, courts and Tribunals are frequently criticised for applying a gloss to ordinary English words that may depart from the relevant legislation.
The applicant relied upon paragraph 10 of MZYPZ, where Bromberg J considered a requirement to apply certain criteria unless there were compelling circumstances for not applying them. His Honour said:
[10]That sub-clause is addressing whether there exists a sufficient basis to move the decision-maker to waive what would otherwise be criteria which an applicant for a visa must satisfy. In that context, “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204; [2005] FCA 211 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285; [2005] FCAFC 77 at [24] per Tamberlin, Conti and Jacobson JJ.
Bromberg J went on to say:
[11]As Whitlam J said in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10]:
[10]… Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The adjective “compelling” does not introduce an objective standard. The waiver decision will always involve a subjective judgment.
[12]In the evaluative judgment to be made, the decision-maker may consider a single circumstance or a multitude of circumstances. Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred.
[13]The decision-maker needs to be “satisfied” that compelling reasons exist.
[14]The limitations upon a judicial review of the exercise of a power or discretion conditioned upon a decision-maker reaching an opinion or state of satisfaction was a matter addressed by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30 (Applicant S20/2002). Gleeson CJ at [8] referred to the following statement by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; [1949] ALR 792 at 793 (Avon Downs):
But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition.
[15]In Applicant S20/2002, McHugh and Gummow JJ at [36] observed that a stricter view should be taken as to what must be shown in order to make out jurisdictional error in circumstances where the power exercised by the decision-maker is conditioned upon the decision-maker’s satisfaction that a certain state of affairs exists and that state of affairs includes factual matters. Their Honours referred to R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Company Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 where at 120 Dixon CJ, Williams, Webb and Fullagar JJ said:
The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.
[16] Kirby J at [126] in Applicant S20 said:
[126]As Latham CJ explained in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd, on review a court's inquiry is limited to determining “whether the opinion required by the relevant legislative provision has really been formed.” Where the decision and the reasons and critical findings of fact that form the basis of that decision are recorded (as was obligatory under the Act in the present case) the Tribunal's reasoning may disclose a misconception about the nature of the fact-finding process required by the Act. It may then become apparent that the fact-finding has miscarried to a significant degree, in the sense that it does not conform to the requirements, express or implied, in the empowering statute. In such circumstances it may be concluded that the opinion or satisfaction reached was not the kind of opinion contemplated by the statute. In each case, the identified pre-condition for the exercise of the power conferred would not be fulfilled.
[17]What each of those statements of principle show is that if jurisdictional error is to be found, it must be found in the process by which a state of satisfaction is reached rather than in the correctness of the opinion arrived at.
[18]The challenge raised by the appellant is that the Tribunal failed to consider a matter that it was bound to consider. That is a challenge to the decision-making process and raises for consideration the possibility of jurisdictional error of the kind referred to by Dixon CJ in the passage from Avon Downs set out above at [14]. The relevant question raised by this appeal is, has the decision maker excluded “from consideration some factor which should affect his determination”? That, in turn, involves consideration of the nature of the fact-finding process required by cl 820.211(2)(d)(ii) in order for the Tribunal to have reached the requisite state of satisfaction.
[19]In my view, the process required by the clause entails a duty to consider whether compelling reasons exists. A cursory consideration will not suffice where there exists, as in this case, a mandatory consideration (whether compelling reasons exist) which the tribunal was bound to take into account. To comply with the duty conferred, the tribunal had to engage in “an active intellectual process” in which the prescribed circumstance “receives [the tribunal’s] genuine consideration”: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 24; 274 ALR 438; 119 ALD 26; [2010] FCAFC 145 at [57] per Stone, Foster and Nicholas JJ, citing Tickner v Chapman (1995) 57 FCR 451 at 462; 133 ALR 226 at 238 (Tickner) per Black CJ and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; 178 ALR 421; 365 ALD 1; [2001] HCA 17 at [105] per Gleeson CJ and Gummow J.
[20]In Tickner, Burchett J stated at FCR 476; ALR 251 that to “consider” required the decision-maker to apply “his own mind to the issues raised”. The decision-maker may be assisted by others to collect the relevant facts but it is the decision-maker’s task to “evaluate” them. Whilst an administrative decision-maker must exercise his or her own judgment, not every step in the decision-making process must be personally done by him or her. Reliance may be placed on facts found by others (such as advisers to a Minister), provided that the decision-maker acts on the basis of an accurate summary of the relevant evidence and submissions upon which the facts have been found: Asiamet (No 1) Resources Pty Ltd v Federal Commissioner of Taxation (2003) 126 FCR 304; 196 ALR 692; [2003] FCA 35 at [116] (Emmett J) approved on appeal Commissioner of Taxation (Cth) v Asiamet (No 1) Resources Pty Ltd (2004) 137 FCR 146; [2004] FCAFC 73 at [217]- [218] per Allsop J, with whom Ryan and Finkelstein JJ agreed.
MZYPZ did not require the Tribunal to set out what it understood to be the meaning of an ordinary English word, whether by reference to previously decided cases or by reference to dictionaries. Rather, MZYPZ required the Tribunal, when determining whether compelling circumstances exist, to engage in an active intellectual process in relation all of the matters it was bound to consider.
The applicant also relied upon the decision of the Full Court of the Federal Court in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285; [2005] FCAFC 77. In that case, the Full Court said:
[20]It is unnecessary to decide whether the meaning of “compelling circumstances” is a question of law or of fact. This is because in our opinion it cannot be said that the construction which the MRT placed on the expression was wrong, or, at least, was so wrong that it failed to address the statutory purpose of reg 1.20J(2).
[21]In our opinion there is no error in construing “compelling circumstances” to mean circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. We were told that no case has authoritatively construed the phrase and the whole of the debate depended upon dictionary definitions of the word “compelling”.
[22]In our view nothing turns on the fact that the MRT’s interpretation relied upon the present participle of the verb “to compel”. We respectfully disagree with the learned primary judge’s view of this.
[23]In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that “compelling circumstances” were those which “forced or drove” or “compelled” a particular result.
[24]There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling”. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in reg 1.20J(1) should be waived.
[25]We do not consider that the definition of “compelling circumstances” adopted by the MRT deflected it from deciding the question it had to decide. It is plain that the MRT addressed all of the circumstances put forward by the appellant as affecting him. It considered whether each of the circumstances alone or together “compelled” the exercise of the discretion. We can see no error in this, let alone jurisdictional error.
Babicci does not stand for the proposition that the Tribunal must spell out its understanding of ordinary English words such as compelling. Rather, Babicci requires the Tribunal to consider all of the relevant matters and decide whether they are so powerful that the Tribunal should waive the relevant criterion or limitation.
I am not persuaded that the Tribunal in the present case made any error by not setting out in its reasons for decision its understanding of the word compelling. Compelling is an ordinary English word. I consider that it should be accepted that the Tribunal understood what it meant unless it can be demonstrated that the Tribunal did not. There is nothing in the present case to indicate that the Tribunal did not understand the meaning of the word compelling.
The applicant then criticised the Tribunal’s use of the word standard in paragraph 18 of the Tribunal’s reasons for decision where the Tribunal said:
However, on the evidence the Tribunal is not satisfied that [the matters put forward by the applicant] individually or cumulatively reach the standard of compelling circumstances that affect the interests of Australia. (emphasis added)
The applicant submitted that where a Tribunal uses a word such as standard, one thinks of standard of proof (Tr. p.6, l.8.). That is clearly not what the Tribunal meant by the use of the word standard in this case. By using the word standard, Tribunal clearly meant level, so the sentence could have read:
However, on the evidence the Tribunal is not satisfied that [the matters put forward by the applicant] individually or cumulatively reach the level of compelling circumstances that affect the interests of Australia. (emphasis added)
The applicant then argued that the Tribunal had not engaged in an active intellectual process in relation to a consideration of whether the applicant’s circumstances reached the level or standard of compelling circumstances.
There is no doubt that if the Tribunal is required to consider a matter it must engage in an active intellectual process in respect of it. For example, in WZAQU v Minister for Immigration and Citizenship (2013) 140 ALD 612; [2013] FCA 327, Flick J said at [12]:
In considering whether or not a claim or a part of a claim has been taken into account and resolved, it is “the reality, and not the appearances, which matters”: compare Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 595; 144 ALR 567 at 594; 48 ALD 481 at 506 per Kirby J. A requirement, whether imposed by common law or by statute, to consider a claim involves a decision-maker to engage in “an active intellectual process directed at that representation or submission”: Tickner v Chapman (1995) 57 FCR 451 at 462; 133 ALR 226 at 238 (Tickner) per Black CJ. See also: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 (NAJT). Both Madgwick and Hill JJ endorsed the formulation of Black CJ in Tickner that “an active intellectual process” was required: NAJT at [46] per Hill J; see also at [212] per Madgwick J.
In the present case, the applicant said that the Tribunal had not engaged in an active intellectual process in relation to whether there were compelling circumstances that affected the interests of Australia. In support of that proposition, the applicant relied on the decision of this court in Sharma v Minister for Immigration and Border Protection [2015] FCCA 2669. In that case, Judge Emmett of this court said:
[44]The concern I raised with Mr Cleary was that, although the MRT commenced its consideration of whether to waive PIC 4020 with the words “For the following reasons, the Tribunal is not satisfied that the requirements should be waived”, the MRT appears to have done no more than recite the evidence before it and the documents to which it had regard. The MRT then stated that it was not satisfied that the applicant’s circumstances amounted to compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen or permanent resident. The MRT did not offer any reason as to why the applicant’s evidence led to its conclusion that the applicant’s circumstances were neither compassionate nor compelling for the purposes of PIC 4020(4).
…
[46]There was no consideration by the MRT why the evidence before it, particularly of the applicant, did not satisfy the MRT that, relevantly, there were compelling circumstances that affected the interests of Australia or compassionate or compelling circumstances that affected the interests of an Australian citizen or an Australian permanent resident. The applicant provided evidence that she may be able to assist Australian citizens in giving them jobs at her place of work, where she was the manager. It was open to the MRT to find such evidence not to be sufficient to satisfy it that PIC 4020(1) should be waived. However, it was also open to the MRT, based on the applicant’s evidence, to find that PIC 4020(1) should be waived.
[47]In short, the evidence of the applicant may be capable of establishing compassionate or compelling circumstances that affected the interests of Australia or an Australian citizen or permanent resident. If the MRT was to find that they did not, the MRT was required to engage in an active intellectual process of considering the applicant’s evidence and give reasons for its failure to be satisfied that PIC 4020(1) should be waived (see WZAQU v Minister for Immigration and Citizenship [2013] FCA 327 at [12] per Flick J). To conclude that PIC 4020(1) should not be waived was, in all the circumstances, otherwise unreasonable (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332).
In the present case, the applicant expressly withdrew ground 2 of the application which concerned unreasonableness. Therefore, for present purposes, Sharma required the Tribunal to have engaged in an active intellectual process in relation to the question of whether there were compelling circumstances affecting the interests of Australia justifying a waiver and required the Tribunal to give reasons for its conclusions in that regard.
In Sharma, the Tribunal’s reasons that Judge Emmett found to be inadequate were as follows:
“Should the requirements of PIC4020 be waived?
43.The requirements of cl.4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen as defined in r.1.03.
44.For the following reasons, the Tribunal is not satisfied that the requirements should be waived. The applicant gave evidence that she has a new partner who is an Australian citizen. She gave evidence that they have been living together for a month. When asked what impact it would have on her partner if she is not granted this visa, she stated that he would not be happy. She gave evidence that he had lived alone since he was young. She stated that he had a drug problem and is now rehabilitated. She stated that as a restaurant manager at an Oporto restaurant she is able to hire and fire staff. She gave evidence that she hires people who are refugees or Australian citizens.
45.The Tribunal has considered the evidence given by the applicant, the submissions made by her migration agent and has had regard to Departmental guidelines (PAM3). When considering whether the provisions of PIC 4020(1) should be waived under PIC 4020(4) the Tribunal must be satisfied that the circumstances referred to in PIC 4020(4) justify the granting of this visa.
46.The Tribunal is not satisfied that the applicant's circumstances amount to compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of this visa. Therefore, the Tribunal has determined not to waive the requirements of PIC 4020(1).”
The applicant argued that the Tribunal’s reasons in the present matter were relevantly identical, and that the Tribunal’s statements in paragraph 18 of its reasons for decision were a statement of conclusion rather than reasons or analysis.
The Minister argued that the Tribunal did actively engage with the matters put forward by the applicant, as set out in paragraph 7 of the Tribunal’s reasons for decision, and summarised in paragraph 18, and did provide a reason for not accepting that those matters constituted compelling circumstances that affected the interests of Australia. That reason was that the matters put forward by the applicant did not reach the appropriate standard or level.
The Minister also noted that the applicant did not complain that the Tribunal had overlooked any of the matters he had put forward in support of his claim that there were compelling or compassionate circumstances affecting the interest of Australia.
The Minister argued that the Tribunal had demonstrated an active intellectual engagement with the matters put forward by the applicant by accurately setting them out, by summarising them by reference to the relevant criteria and by accepting that the matters raised by the applicant make a contribution to Australia.
The Minister argued that there was no relevant dichotomy between conclusions and reasons in the context of this case.
The Minister also argued that Sharma was distinguishable and, in the alternative, was wrongly decided and should not be followed. The Minister argued that Sharma was distinguishable because the reasons for decision in Sharma contained no equivalent of the Tribunal’s statement in the present matter that:
The Tribunal accepts that the matters raised by the applicant make a contribution to Australia.
The Minister said that Sharma was wrongly decided because the statement that there was no consideration by the MRT was itself a conclusion without reasoning.
I accept that the Tribunal was required to engage in an active intellectual process in relation to the matters put forward by the applicant as justifying a waiver of public interest criterion 4020. However, in my view, the Tribunal did so. The Tribunal accurately recorded the matters put forward by the applicant. The Tribunal weighed those matters and accepted that they made a contribution to Australia. However, the Tribunal concluded that the matters raised by the applicant did not reach the standard or level of compelling circumstances. That is all that was required of the Tribunal.
The question of whether compelling circumstances affecting the interests of Australia were sufficient to justify a waiver is a matter of fact and degree. Either the circumstances reach the necessary level or standard or they do not. It is difficult to see anything else that the Tribunal could usefully have said on the matter.
It is also noteworthy that the matters relied on by the applicant in support of a waiver are not self-evidently such compelling circumstances affecting the interests of Australia that any reasonable person would conclude that they justify a waiver. On the contrary, they seem to me to be of very little moment to the interests of Australia. Of course, it is not for this court to assess whether the circumstances are sufficiently compelling to justify a waiver. However, if the circumstances were objectively so compelling, it would tend to suggest that the Tribunal had erred in some manner. That is simply not the case in the present matter.
I consider that the present matter is distinguishable from Sharma. That is because the Tribunal in the present case, but not in Sharma, demonstrably indicated that it had weighed the matters put forward by the applicant by saying that:
The Tribunal accepts that the matters raised by the applicant make a contribution to Australia.
That sentence moreover indicated that the Tribunal had engaged in an active intellectual process in dealing with the matters raised by the applicant. There was no similar engagement with the issues in Sharma, where the Tribunal merely summarised the claims and then went straight to a conclusion.
As Sharma is distinguishable, it is unnecessary for me to consider whether it was wrongly decided.
In relation to the question of proper, genuine and realistic consideration, I note that in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, Griffiths, White and Bromwich JJ said:
[29]The Minister did not contest that he was obliged by law to give proper, genuine and realistic consideration to the merits of the case in determining whether or not to cancel a visa under s 501(3) of the Act. He denied, however, that this meant that he had to give consideration of some particular or definable quality to each of the items of evidence before him.
…
[31]The Minister also (correctly) emphasised the danger that the use of an expression such as “proper, genuine and realistic consideration”, as relied upon by both judicial review applicants, could draw the Court into an impermissible merits review.
In the present case, I consider that the Tribunal did give proper, genuine and realistic consideration to the question of whether the applicant had raised compelling circumstances affecting the interests of Australia for the same reasons as that I am satisfied that the Tribunal engaged in active intellectual process in relation to those matters.
I also note the last sentence of paragraph 7 of the Tribunal’s reasons for decision, which is as follows:
The project isn’t of a scale to affect Australia’s national interest but on a local level it might bring housing and tax monies.
Nothing was made of that sentence before this court. It is unclear whether it was a statement made by the applicant, or a statement made by the Tribunal. Neither party provided to the court a transcript of the Tribunal hearing, which would have clarified the matter.
If it was a statement made by the applicant, it amounted to a concession by him that the circumstances did not reach the required level. If it was a statement made by the Tribunal, it was an appraisal by the Tribunal that shows an active intellectual engagement with the issues, and a proper, realistic and genuine consideration of the issues. Either way, it makes it clear that there was no jurisdictional error of the type alleged in this case.
I am not persuaded that ground 1 has any substance.
Ground 2
The second ground of review in the application filed on 23 July 2015 and amended on 21 August 2017 is:
In the alternative, for the reasons set out in the Particulars listed above, the decision of the Tribunal was legally unreasonable.
The applicant was given leave at the hearing on 5 September 2017 to withdraw ground 2 in the amended application filed on 21 August 2017. It is therefore unnecessary to say anything further about it.
Conclusion
As the applicant has not established a jurisdictional error in this case, the application must be dismissed with costs. I will hear the parties on the quantum of costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 1 November 2017
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