Chand & Ors v Minister for Immigration & Anor

[2014] FCCA 751

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAND & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 751

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of a show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)

Trivedi v Minister for Immigration [2014] FCAFC 42
Vyas v Minister for Immigration & Anor [2012] FMCA 92

First Applicant: SANJAY KUMAR CHAND

Second Applicant: RAJRANI CHAND

Third Applicant: RITHIK CHAND

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2813 of 2013

Judgment of: Judge Driver

Hearing date: 11 April 2014

Delivered at: Sydney

Delivered on: 11 April 2014

REPRESENTATION

The First and Second Applicants appeared in person

Solicitors for the Respondents:

Mr L Dennis

Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2813 of 2013

SANJAY KUMAR CHAND

First Applicant

RAJRANI CHAND

Second Applicant

RITHIK CHAND

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 13 November 2013, seeking review of a decision of the Migration Review Tribunal (Tribunal) made on 31 October 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants skilled provisional (class VC) visas. There are three applicants, the first applicant (Mr Chand) being the applicant husband and the second applicant being his wife, and the third applicant being their son. The third applicant is currently aged 12 years, and the first applicant was appointed his litigation guardian.

2. The applicants sought the visas on 21 May 2011 and that request was refused by the Minister’s delegate on the basis that they did not satisfy the requirements of clause 485.224 of schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), because they did not meet the requirements of public interest criterion (PIC) 4020.

3. Mr Chand sought review before the Tribunal and appeared before it to give evidence and present arguments on 19 July 2013.  The Tribunal decided to affirm the delegate’s decision.  Central to the Tribunal’s reasoning was discovery that an English language (IELTS) report dated 17 December 2009 in relation to a test conducted on 5 December 2009 had been falsified to show scores of 7 in each of the test elements.  Mr Chand had submitted those test results to the Minister’s Department.  There was no issue that that document was a bogus document because the test results had been falsified.  Mr Chand argued before the Tribunal that he did not know that the test results had been falsified.  He argued that he had submitted the results in good faith. 

4. The Tribunal relied upon my decision in Vyas v Minister for Immigration & Anor[1] and found that there was no mental element requirement for the purposes of PIC 4020. That decision has been approved very recently by the Full Federal Court in Trivedi v Minister for Immigration[2]. The Tribunal also considered whether the requirements of PIC 4020 should be waived. The Tribunal took into account good character references submitted by Mr Chand, as well as information relating to his employment. The Tribunal accepted that Mr Chand is a valued employee and that he holds an important position in a green grocery business. The Tribunal accepted that his employers, who are Australian citizens, might be affected by the loss of his services in the business. The Tribunal was not satisfied, however, that those circumstances amounted to compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of Australian citizens. The Tribunal decided not to waive the requirements of PIC 4020.

   [1] [2012] FMCA 92

   [2] [2014] FCAFC 42

5. In his show cause application, Mr Chand reiterates that he is innocent of any wrongdoing in relation to the IELTS test report. He recounts that he has been unable to contact the centre which conducted the test and, hence, is unable to provide further evidence in relation to the test results. He requests a waiver of PIC 4020.  He refers to his son who is at high school in Sydney. Mr Chand states that he and has family have been in Australia for six years and it would be difficult to resettle again in India. He says that he is considering applying for a class 457 visa. He again refers to his good character and his standing in the community.

6. I accepted as a submission an affidavit by Mr Chand filed with his show cause application. 

7. I received as evidence the court book filed on 13 January 2014. 

8. In my view, the applicants have been unable to point to any arguable case of jurisdictional error by the Tribunal. 

9. The only potentially arguable legal issue relating to whether there is a mental element in relation to PIC 4020 has now been answered authoritatively by the Full Federal Court in Trivedi. There is no argument available that the Tribunal’s consideration of its discretion to waive the requirements of PIC 4020 miscarried. Mr Chand raised with me in his oral submissions the circumstances of his son who has been in Australia since he was six years old and is now pursuing his studies at high school in Sydney. Those circumstances were apparently not put before the Tribunal, but would be something that the Minister could take into account if he were so minded. I explained to Mr Chand that that is not something over which the Court has any influence.

10. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

11. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Chand did not wish to be heard on costs. I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  14 April 2014