BYK20 v Minister for Immigration and Border Protection
[2023] FedCFamC2G 749
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BYK20 v Minister for Immigration and Border Protection [2023] FedCFamC2G 749
File number(s): SYG 3144 of 2017 Judgment of: JUDGE CAMERON Date of judgment: 22 August 2023 Catchwords: MIGRATION – Partner visa – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision.
ADMINISTRATIVE LAW – Allegation that the decision of the Administrative Appeals Tribunal (“Tribunal”) was affected by jurisdictional error by reason of incorrect fact finding which lacked compassion and manifested racial discrimination.
Legislation: Migration Act 1958 (Cth) ss 5, 474
Migration Regulations 1994 (Cth) cls 100.21, 100.222, PIC 4020
Migration Legislation Amending Regulation 2013 (No 3) (Cth) item 1 sch 7, item 2 sch 10
Migration Amendment (2014 Measures No 1) Regulation 2014 (Cth) item 1 sch 1, item 1 sch 6
Australian Human Rights Commission Act 1986 (Cth)
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Division: General Number of paragraphs: 33 Date of hearing: 14 August 2023 Place: Sydney For the First and Second Applicants: The applicants appeared in person Solicitor for the First Respondent: Sparke Helmore ORDERS
SYG 3144 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYK20
First Applicant
BYL20
Second Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
22 August 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The first applicant is a citizen of China. Sponsored by his wife, on 6 June 2013 he lodged with what is now the Department of Home Affairs (“Department”), for himself and for his daughter the second applicant, a combined application for Partner (Migrant) (Class BC) Partner (subclass 100) visas and temporary Partner (Subclass 309) visa. They were granted the temporary visas and arrived in Australia on 14 June 2016. On 12 October 2016 their application for the Partner (subclass 100) visas was refused by a delegate (“Delegate”) of the first respondent (“Minister”). The applicants then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
The temporary visas expired when a decision on the application for permanent visas was made.
In this judicial review proceeding the Court cannot rehear the applicants’ visa application. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
LEGISLATION
At all material times s.5(1) of the Act relevantly provided:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
At the time of the applicants’ visa application on 6 June 2013 sch.2 to the Migration Regulations 1994 (Cth) (“Regulations”) relevantly provided:
100.2—Primary criteria
Note: The primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
100.21—[No criteria to be satisfied at time of application]
100.22—Criteria to be satisfied at time of decision
…
100.222
The applicant:
(a)satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4021; and
(b)if the applicant had turned 18 at the time of application—public interest criterion 4019.
On 1 July 2013, cl.100.222(a) was amended to include a reference to public interest criterion 4020 (“PIC 4020”): item 1 of sch.7 to the Migration Legislation Amending Regulation 2013 (No 3) (Cth). That amendment applied to the applicants’ visa application notwithstanding that the amendment post-dated it: item 2 of sch.10 to the Migration Legislation Amending Regulation 2013 (No 3) (Cth).
At all material times, PIC 4020 relevantly provided:
4020
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, 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.
…
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) 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.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
On 22 March 2014, PIC 4020 was amended by item 1 of sch.1 to the Migration Amendment (2014 Measures No 1) Regulation 2014 (Cth) relevantly to include a sub-cl.(2A):which provided:
(2A) The applicant satisfies the Minister as to the applicant’s identity.
That amendment also applied to the applicants’ visa application notwithstanding that the amendment post-dated it: item 1 of sch.6 to the Migration Amendment (2014 Measures No 1) Regulation 2014 (Cth).
BACKGROUND FACTS
Relevantly, the first applicant included in his visa application the following information:
(a)he had not been known by any name other than the one in which he had made the application;
(b)China was the only country in which, in the previous ten years, he had lived for a period of longer than 12 months; and
(c)he had not been deported or removed from any country (including Australia).
On 26 February 2016, in response to a request by the Delegate for comment on unfavourable information, the first the applicant admitted that:
(a)in July 2003, he had travelled to Australia on a tourist visa;
(b)in July 2004, he was removed to China as a result of having overstayed his visa;
(c)in September 2004, he returned to Australia on a passport issued in a false name and remained in Australia under that name until March 2013, when he returned to China to register his marriage to the sponsor; and
(d)in August 2014, he returned to Australia on a passport and visa issued in his real name.
The Delegate concluded that as the first applicant had withheld information concerning his alias and his residence, he had provided false or misleading information in relation to his visa application. By letter dated 9 August 2016, the Delegate invited the applicant to comment on that information and make submissions as to any relevant compassionate or compelling circumstances that might justify a waiver of PIC 4020.
On 1 and 10 September 2016, the applicants’ representative responded to the Delegate’s letter of 9 August 2016.
On 12 October 2016 the Delegate found that the first applicant had provided false or misleading information in the visa application concerning his alias and residence and had not provided grounds sufficient to justify a waiver of PIC 4020. He refused the visa application.
THE TRIBUNAL’S DECISION AND REASONS
The Tribunal affirmed the delegate’s decision.
Public Interest Criterion 4020(1)
The Tribunal found that the applicants did not satisfy PIC 4020(1) because there was evidence before it that the first applicant had:
… given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth:
•a 'bogus document', as defined in s.5(1), ie a document that the Tribunal reasonably suspects is a document that:
•purports to have been, but was not, issued in respect of the person, or
•is counterfeit or has been altered by a person who does not have authority do so, or
•was obtained because of a false or misleading statement, whether or not made knowingly
and/or
•‘information that is false or misleading in a material particular' as defined in cl.4020(5), ie information that is:
•false or misleading at the time it is given, and
•relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
in relation to the visa application or a visa held in the 12 months before the visa application was made.
The Tribunal referred in that regard to the following matters:
(a)4 statutory declarations made by supporting witnesses and submitted in support of the visa application contained information concerning when the first applicant met the sponsor that the first applicant conceded to the Tribunal was incorrect and which the Tribunal concluded had been included in the statutory declaration at the first applicant’s request;
(b)false or misleading information similar to that found in the 4 supporting witnesses’ statutory declarations was included in the statements made by the first applicant and the sponsor in support of the visa application;
(c)the 4 statutory declarations were bogus documents obtained because of a false or misleading statement of the first applicant, namely his request that the supporting witnesses make the declarations in support of the visa application;
(d)the first applicant caused the 4 statutory declarations to be provided to the Minister when he lodged the visa application; and
(e)the first applicant had failed to declare in the visa application that he had been removed from Australia in 2004.
The Tribunal also expressed agreement with the Delegate’s findings concerning the first applicant’s provision of false or misleading information.
Public Interest Criterion 4020(4)
Having concluded that the first applicant had failed to satisfy PIC 4020(1), the Tribunal considered whether there were compelling circumstances that affected the interests of Australia, or compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen and which justified the waiving of PIC 4020’s requirements. It referred to the submissions that the parties made in that regard.
The Tribunal explained PIC 4020(4) as follows:
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
The first applicant claimed that the sponsor would suffer financial, physical and emotional hardship if he were required to lodge a visa application offshore. The Tribunal considered evidence that the sponsor’s mental health would be affected by stress and accepted that the sponsor had attended a psychologist a number of times because of stress and psychological distress. The Tribunal also considered oral evidence from the second applicant and from two friends of the parties, as well as a written statement of the sponsor dated 25 September 2017, concerning hardship the sponsor would suffer if the first applicant were to return to China. It also noted the first applicant’s claims that the sponsor could no longer live in China and that their marriage would suffer if there were to be a prolonged separation.
After considering the various claims and the evidence, the Tribunal was not satisfied that there were any compelling circumstances that affected the interests of Australia, or compelling or compassionate circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that would justify the grant of the visas. The Tribunal found that the requirements of cl.4020(1) should not be waived on the basis of PIC 4020(4).
Public Interest Criterion 4020(2A)
The Tribunal also found that by reason of the first applicant’s overall lack of credibility arising out of his conduct it could not be sure, “to any degree of certainty” of his identity and so concluded that PIC 4020(2A) had not been satisfied. The Tribunal noted that no waiver provision applied to that criterion.
Decision
The Tribunal affirmed the decision to not grant the first applicant’s visa application, and, as a corollary, affirmed the decision to refuse the second applicant a visa.
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicants alleged:
1.I do not think that the tribunal of AAT treat my case fairly. The tribunal did not evaluate the case in a way that is fair, reasonable, comprehensive and humane. The judgement [sic] is one-sided, mainly judging by the Public Interest Criterion 4020.
2.In the 17-page decision record of AAT, there is no comment that denies the reality of our marriage. Now that out marriage is true and the reason that we used to make this application is changed partner (Provisional) visa (subclass 309) into partner (Migrant) visa (subclass 100), why our four-year love and marriage cannot be considered. We have already known the mistakes we made and are very regretful.
3.I think it is very ridiculous that the tribunal suggests us return to China to live and this suggestion is mentioned several times in the decision record. I made this application within the legal time appeal and I made this payment of this appeal, in theory, I am a customer. I did not pay money to listen to this suggestion. I seriously think the judge has racial discrimination.
4.I hope judge of FCC consider my situation and give me an opportunity. Please take into account my case in a way that is comprehensive and give me a satisfactory result.
CONSIDERATION
Initial comment
The applicants’ written submissions and addresses to the Court at the hearing of this application included arguments as to why PIC 4020(1) ought not to have applied in this case. Those arguments invite the Court to substitute its own view on those issues for those of the Tribunal. The Court is not empowered to do that. As noted earlier in these reasons, the Court cannot rehear the visa application in whole or in part, which is in substance what those submissions sought. Consequently, those submissions will not be considered further.
Ground 1
The first ground of the application identified no reviewable error on the Tribunal’s part and did no more, in substance, than express disagreement with its decision on the merits of the visa application. In his address to the Court, the first applicant submitted reasons to explain why incorrect information had been supplied in the visa application but did not seek to show in what way the Tribunal’s treatment of those issues had been legally erroneous. The Tribunal’s decision record, as summarised earlier in these reasons, indicates that its conclusions concerning the provision of false or misleading information were reasonably open to it on the evidence before it. A differently constituted Tribunal might have reached a different conclusion on the same evidence but that does not mean that the present decision is affected by legal error.
The allegation that the decision concerning PIC 4020 was “one-sided” is unparticularised and, without relevant particulars, cannot be accepted to amount to an allegation of bias. That being so, it is a complaint about fact finding which is not justiciable in this proceeding.
Ground 2
The second ground of the application sought review of the Tribunal’s findings that the requirements of PIC 4020(1), which were otherwise held to apply in this case, were not to be waived. That allegation too invited the Court to reconsider the facts of the matter and to reach a decision on the merits of the visa application different from the Tribunal’s. The Court is not empowered to do that. If the Tribunal’s reasoning had been affected by legal error then review might have been available but that was not the allegation.
Grounds 3 and 4
Grounds 3 and 4 of the application also sought merits review. The allegation of racial discrimination was not particularised other than by reference to what the Tribunal appears to have concluded was the availability to the applicants of a reasonable quality of life in China, were they to return there, and their plain preference to remain in Australia. The allegation cannot be a complaint under Australian Human Rights Commission Act 1986 (Cth) and does not, given its lack of particulars, amount to an allegation of actual or apprehended bias that the Court can consider.
Further matters
It should be noted that the Tribunal’s decision did not rest only on the application of PIC 4020(1), which was the present application’s focus of concern. The Tribunal also relied on PIC 4020(2A), whose provisions cannot be waived under PIC 4020(4). However, as that finding was not canvassed by the parties, it will not be considered further.
After judgment was reserved, and without leave, the applicants filed a further affidavit. As no application has been made to reopen the applicants’ case, regard will not be had to that document. However, in any event, the affidavit did not raise a matter which would have compelled a different outcome to this proceeding.
CONCLUSION
None of the applicant’s allegations identified jurisdictional error on the part of the Tribunal.
Consequently, the application will be dismissed.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 22 August 2023
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