Chan v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 394
•1 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 394
File number(s): BRG 506 of 2020 Judgment of: JUDGE EGAN Date of judgment: 1 May 2024 Catchwords: MIGRATION LAW – Where PIC 4020(1) not satisfied - whether PIC 4020(4) satisfied – no jurisdictional error established on the part of the Tribunal – Application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) Schedule 2 Clause 500.217, Schedule 4 sub-clause 4020
Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Division: Division 2 General Federal Law Number of paragraphs: 18 Date of last submission/s: 4 April 2024 Date of hearing: 4 April 2024 Place: Brisbane Applicant: Mr L. Chan appearing on his own behalf Solicitor for the First Respondent: Mr. M. Hawker, Sparke Helmore Second Respondent Submitting appearance, save as to costs. ORDERS
BRG 506 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LAP YUEN LIMA CHAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
1 MAY 2024
IT IS ORDERED THAT:
1.The Amended Application for Review filed on 14 December 2020 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Amended Application for Review fixed in the amount of $5,000.00.
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 EGAN
INTRODUCTION
The Applicant is a male citizen of Hong Kong SAR who made application for a student visa on 7 December 2018.
An applicant for a student visa is required to satisfy a number of criteria as set out under the Migration Act 1958 (Cth) (‘the Act’) and the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 500.217 of Schedule 2 to the Regulations required an applicant to satisfy Public Interest Criterion (‘PIC’) 4020 as set out in Schedule 4 to the Regulations. PIC 4020(1) relevantly provided as follows:
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 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
Sub-clause 4020 (4) of Schedule 4 provided, however, that PIC 4020 (1) would be satisfied if the Minister was satisfied that compelling circumstances that affected the interests of Australia, or compassionate and compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, justified the grant of the visa.
There was no dispute that when applying for the student visa the applicant, in answer to the question … “Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?”, answered “No”. There was also no dispute that such answer was incorrect because an application made by the applicant for a temporary business visa UC 457 lodged on 22 April 2016 was refused on 7 November 2016.
On 11 April 2019 a delegate of the Minister refused the student visa application on the basis that PIC 4020(1) had not been met. The delegate did not consider that the applicant’s explanation that the error on his part was unintentional had been made out.
The applicant sought review by the Administrative Appeals Tribunal (‘the Tribunal’) of the decision of the delegate to refuse to grant the applicant the visa. On 5 August 2020, the Tribunal affirmed the decision of the delegate. At [7] – [20] inclusive of the reasons of the Tribunal, it was found as follows:
7.The applicant appeared by telephone before the Tribunal on 5 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
8.At the commencement of the hearing, the applicant confirmed the currency and truth of his communications to the Tribunal and the Australian Government during the course of this review. The applicant confirmed that he understood that his visa had been refused on the basis of a false statement that he had made to the Department, and said that at the time he did not know that he had been refused the visa.
9.The applicant confirmed that he had applied for a temporary business visa UC 457 on 22 April 2016. The visa was refused on 7 November 2016, but the applicant said that he had no idea that this had happened.
10.The applicant told the Tribunal that the migration agent told him that the sponsoring company was not qualified to sponsor him. He said that he did not know that the sponsoring company could not sponsor him at tha.t time. The applicant said that he did not even know that the 457 visa application had even been lodged, even though he said that he had signed all the paper-work. He believed that the company was an approved company to sponsor him because they told him that they would do everything according to the procedures. The applicant said that the agent later told him that the sponsoring company was not qualified, and he thought that if the company was not qualified, he would not have his application lodged.
11.The applicant also told the Tribunal that he had not received any communication telling him anything other than the company was not qualified, and that the agent did not inform him of the refusal of his visa application.
12.The applicant was asked what he thought had become of his Visa application, and he said that at the time he had no idea it was refused. The applicant agreed with a proposition put by the Tribunal that in those circumstances he thought that his visa application would not have been lodged at all. He told the Tribunal that he never made any enquiry of any one as to the fate of his visa application, and that he did not have any further conversations with the agent or the prospective employer regarding his visa application.
13.However, the applicant went on to tell the Tribunal that the agent had proposed to him that he could lodge an appeal, however he decided not to proceed to appeal.
14.The Tribunal finds this last item of evidence to be very much at odds with the applicant's prior evidence that he was unaware of the rejection of his UC 457 visa application. The Tribunal accepts the applicant's evidence that he discussed the question of an appeal with the migration agent, and considers it highly likely that this took place in the context of a discussion regarding the rejection of his visa application. The Tribunal therefore rejects the applicant's evidence that he was unaware of the refusal of his UC-457 visa application, and finds that his failure to disclose this refusal at the time of his present visa application amounted to the provision of information which was false or misleading in a material particular.
15.It follows that the Tribunal finds that the applicant does not satisfy Public Interest Criterion 4020(1), and therefore does not meet the requirements of cl.500.217 of Schedule 2 of the Regulations.
16.The applicant was asked if there are any compelling circumstances affecting the interests of Australia that justified granting the visa, and said no.
17.The applicant was asked if it was his contention that there are compassionate or compelling circumstances affecting the interests of an Australian citizen, and Australian permanent resident, or an eligible New Zealand citizen justifying the grant of his visa, and replied no.
18.Based on this evidence, the Tribunal finds that the applicant does not meet Public Interest Condition 4020(4).
19.Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.217.
20.Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
On 11 September 2020, the applicant filed an Application for Review of the decision of the Tribunal. That application was filed two (2) days out of time. At the time of the hearing before the Court, submissions were made on behalf of the First Respondent to the effect that any application for extension of time for the filing of the Application for Review ought to be refused on the ground that the grounds raised in the substantive application lacked merit such that it was not in the interests of justice for an order to be made extending time.
The grounds of review in an Amended Application for Review filed on 14 December 2020 were as follows:
Grounds of application
1.The applicant formed the view that the member of the Tribunal did not make fair and reasonable decision and did not take all the substantial facts and applicant's statement and supporting evidence. In the decision statement and during the telephone interview with the Tribunal, applicant believe that the Tribunal did not make distinction between the sponsorship refusal and visa refusal. The assumption was made during the interview and in the decision record that applicant's statements are in relation to visa refusal, were in fact, it is for sponsorship refusal.
2. The applicant formed view that the decision was made contrary to the rule of natural justice during the hearing. The applicant suspect that use of interpreter has caused lost in translation and applicant statement were not clearly interpreted to the Tribunal member clearly. During the hearing, the Tribunal member has told the interpreter multiple times to either slow down, repeat or providing instruction for other reasons. The applicant thought that when the interpreter repeated, the nuance of wording or sentences were changed. During the hearing, the applicant made effort to speak to Tribunal member directly in English. However, the applicant were told only to speak through interpreter, which the applicant were not given full opportunity to speak.
Ground 1 was an assertion that the Tribunal did not take all relevant facts and evidence into account when arriving at its decision. Such ground is without merit.
The Tribunal correctly addressed the question as to whether PIC 4020(1) had been satisfied or not. Having been satisfied that information which was false or misleading in a material particular had been provided to the Minister, the Tribunal appropriately then next considered whether PIC 4020(4) had, in either respect, been satisfied.
The Tribunal recorded that the applicant had answered in the negative when asked whether either of the PIC 4020 (4) criteria were able to be satisfied by him or not. In such circumstances, the Court finds that the Tribunal had effectively intellectually engaged with the applicant’s claims before arriving at its decision, and that it was open to the Tribunal to arrive at the decision which it did. It could not be said that another rational or logical decision maker could not have made the same decision as was made by the Tribunal.
The Court respectfully adopts what was held in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135] per Crennan and Bell JJ where it was said as follows:
130.“ In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Was the Tribunal's fact finding "illogical" or "irrational"?
…
135.On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
As to Ground 2 of the Amended Application for Review, the Court accepts the submission made on behalf of the First Respondent that the applicant had failed to demonstrate that any problem in interpretation or translation occurred during the course of the hearing before the Tribunal. The applicant had not filed any material which was suggestive of any denial of natural justice or procedural unfairness during the course of such hearing. It was for the applicant to succinctly articulate any complaint in that regard. He did not.
The explanation given by the applicant at [15] – [17] of the applicant’s affidavit filed on 11 September 2020 was unconvincing in the light of common experience as to one’s understanding of what constitutes a refusal of a visa application. The Court accepts the reasoning of the Tribunal, and its rejection of the applicant’s evidence, in that regard.
The applicant has failed to establish any jurisdictional error on the part of the Tribunal.
In circumstances where there is no merit to the substantive grounds of review in the Amended Application for Review, there is no utility in granting the application for an extension of time to file such application, and such application is accordingly refused.
The Application for Review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 1 May 2024
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