Deb v MIBP
[2016] FCCA 3351
•22 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEB v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3351 |
| Catchwords: MIGRATION – Application for review of former Migration Review Tribunal decision – waiver of PIC 4020(1) of the Act – whether the Tribunal misinterpreted the meaning of ‘compelling circumstances that affect the interests of Australia’ in PIC 4020(4) of the Act – whether Tribunal failed to give reasons for a finding – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 97, 476 Migration Regulations 1994 (Cth), cl. 573, Sch 4 |
| Cases cited: Vyas & Anor v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1226; (2013) 281 FLR 247 Mudiyanselage v Minister for Immigration and Citizenship [2012] FMCA 887; (2012) 134 ALD 199 | ||
| Applicant: | DHANANJOY DEB | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2656 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 9 August 2016 |
| Date of Last Submission: | 9 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Cutler |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 24 September 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2656 of 2014
| DHANANJOY DEB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 September 2014, seeking review of the decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 27 August 2014, which affirmed the decision of the delegate of the Minister to refuse a Student (Temporary) (Class TU) visa (“the visa”) to Mr Dhananjoy Deb (“the applicant”).
In evidence before the Court is a bundle of relevant documents, filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”) and the affidavit of Winnie David, of Legal Transcripts Pty Ltd, made on 9 January 2015, which annexes a transcript (“T”) of the hearing before the Tribunal.
Background
The applicant applied for the visa on 3 December 2012 (CB 1 to CB 7, and see CB 27.5). He included a number of attachments to his visa application including financial information (CB 8 to CB 15) and confirmation of enrolment certificates (CB 17 to CB 25).
The Minister’s department (“the department”) contacted the applicant by email correspondence on 5 December 2012 requesting further information, including, relevantly, information as to his financial requirements while in Australia (CB 27 to CB 30). The applicant provided a number of further documents, including “financial” documents on 21 December 2012 (CB 31 to CB 38).
By email dated 26 March 2013, the department invited the applicant to comment on information that he had not satisfied Public Interest Criterion (PIC) 4020 of Schedule 4 to the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 51 to CB 53). The department informed the applicant that financial documents provided by him in support of his visa application and from “Southeast Bank Ltd”, had been found to be “fraudulent documents” (CB 52). The applicant responded on 16 April 2013, stating that he had not provided any “fraudulent or misleading papers”, and that he had “investigated” (error in original) with the bank and “found everything sound” (CB 54).
By email dated 29 May 2013, the department again invited the applicant to comment on information that he had not satisfied Public Interest Criterion (PIC) 4020 of the Regulations (CB 58 to CB 60). The department informed the applicant that documents provided by the applicant in support of his financial requirement from “Southeast Bank Ltd” had again been found to be “fraudulent documents” (CB 59). The applicant responded by email dated 25 June 2013, in which he reiterated his belief that the initial bank documents were not fraudulent. However he attached “new” bank documents from “Janata Bank” to meet the financial requirements (CB 61 to CB 66).
By email dated 22 July 2013, the department again invited the applicant to comment on information that the further financial documents from Janata Bank had been “checked” with the Dhaka office of the Bank, which had confirmed that the bank account did not exist (CB 68 to CB 70). The applicant responded with a “student loan letter” on 6 August 2013, as a different means of meeting the financial requirements of the visa (CB 83).
The delegate refused the application for the student visa on 28 August 2013 (CB 71 to CB 85). The delegate found that the applicant had not satisfied PIC 4020 (CB 84). The delegate was not satisfied that the applicant had “adequately refuted the adverse information” and that the applicant had not specified any “compelling circumstances” to justify a waiver of PIC 4020 of Schedule 4 to the Regulations.
The applicant applied for review to the Tribunal on 4 September 2013 (CB 86 to CB 114). By letter sent by email dated 13 June 2014, the Tribunal invited the applicant to comment on or respond to information in relation to the documentary evidence provided to the department that had been found to be “false or misleading” (CB 118 to CB 120). The Tribunal noted in the letter that if it relied on this information it may affirm the delegate’s decision.
The applicant appointed a representative on 27 June 2014 (CB 124 to CB 128). By facsimile on the same date, the representative requested that he be given until the date of the Tribunal hearing to respond to the invitation (CB 124.5).
The applicant’s representative provided supporting documents to the Tribunal on 15 August 2014 in support of a waiver of PIC 4020 of the Regulations (CB 131 to CB 171). The representative stated that the applicant played a “vital role in the Australian business” of the employer and that his departure would have “significant detrimental effect” on the business. Further, the representative stated that in the process of the visa application “documents may have been forwarded to the department without [the applicant’s] knowledge or authorisation”, which were later found to be bogus documents (CB 131.5).
The documents attached to the applicant’s representative’s letter included:
1)A letter from the applicant stating that a migration agent had provided fraudulent documents to the department and engaged in communications with the department from an email address that was not the applicant’s (CB 134).
2)An offer of enrolment in an educational course (CB 136 to CB 137).
3)A letter from the current employer of the applicant in support of the applicant as being a “vital part” of the employer’s team, and various documents associated with that business (CB 140 to CB 171).
The applicant and his representative attended a hearing before the Tribunal on 18 August 2014 (CB 172 to CB 173). The Tribunal affirmed the delegate’s decision on 27 August 2014 (CB 180 to CB 186).
The Tribunal informed the applicant at the hearing that “even if [the information] was given without his knowledge or consent, the conditions of PIC 4020(1) had been breached” ([6] at CB 181). The Tribunal “discussed” the waiver in PIC 4020(4) and the applicant told the Tribunal that “he had a good working relationship with his employer and she relied on him” ([7] at CB 181). The Tribunal “commented that the circumstances he was describing were not of such nature or extent” for the waiver to be granted. The Tribunal noted that the applicant’s representative stated that the Tribunal had a “closed mind” and had ignored evidence in support of the applicant’s argument. The applicant’s representative referred to the submissions, which the Tribunal considered ([7] at CB 181 to CB 182).
The Tribunal found that “bogus documents and false information was submitted” in support of the applicant’s visa application and it was not necessary for the information to have been provided by the applicant “knowingly”. Therefore, the applicant did not meet the requirements of PIC 4020(1) of the Regulations ([11] - [12] at CB 183). It then went on to consider whether the requirements of PIC 4020(1) of the Regulations should be waived pursuant to PIC 4020(4) ([13] at CB 183 to [17] at CB 184).
The Tribunal referred to Vyas & Anor v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1226; (2013) 281 FLR 247 (“Vyas”) for assistance in understanding the terms “compelling or compassionate” as they appear in PIC 4020(4) of the Regulations. It noted that in Vyas the Court found no error in a Tribunal finding that while it would be “disadvantageous” for an Australian business to lose an employee, it was not a “compelling” or “compassionate” circumstance. The Tribunal also referred to Mudiyanselage v Minister for Immigration and Citizenship [2012] FMCA 887; (2012) 134 ALD 199 (“Mudiyanselage”) where the Court found no error in the Tribunal’s acceptance that the applicant in that case had “been a victim of fraud” in relation to her employment, and therefore her related documents, but that that “did not constitute compelling and compassionate circumstances” ([15] at CB 183).
The Tribunal found that the applicant provided “no evidence to indicate that” compelling circumstances existed in his case that would affect the interests of Australia. It found that there were no such interests such as to waive PIC 4020(1) ([16] at CB 183).
It then considered whether there were any “compassionate or compelling circumstances that affect the interests of an Australian citizen” ([17] at CB 184). It noted that the applicant claimed that he had a “close bond with his employer of four years and she [the employer] relie[d] on him in the running of her business and with other matters” ([17] at CB 184). It accepted that this was the case, and that the employer had come to rely on him, however the Tribunal was ([17] at CB 184):
“[17]… not satisfied that the assistance, support, and companionship which the applicant is providing to his Australian citizen employer is of such nature or extent as to impact significantly on that person’s well-being or business activities if the applicant were no longer available to provide it…”
In all, it was not satisfied that the circumstances submitted by the applicant constituted “compassionate or compelling” circumstances for the purposes of PIC 4020(4)(b), and therefore PIC 4020(1) should not be waived.
Application Before the Court
The application before the Court contained four grounds of review. The applicant did not press ground four at the hearing. Grounds one, two and three were as follows:
“1. The Tribunal misunderstood the function of judicial review in respect of another decision of the Tribunal.
Particulars
The Tribunal referred to the outcomes of judicial review of other Tribunal decisions where the Court had not found jurisdictional error. The Tribunal considered those judgments to be endorsements of the reasoning of the other Tribunal's.
2. The Tribunal misinterpreted the meaning of the expression ‘compelling circumstances that affect the interests of Australia’ in cl 4020(4)(a) of Schedule 4 to the Migration Regulations 1994.
Particulars
The Tribunal applied an unjustifiably narrow test of what what the interests of Australia might be, and which circumstances might affect those interests.
3. The Tribunal failed to provide an explanation for its finding that there were no compelling circumstances affecting the interests of Australia.
Particulars
The Tribunal did not provide any reasons for its finding that there were no compelling circumstances affecting the interests of Australia, despite the Applicant's submissions that there were. A necessary inference would be that the Tribunal has no such reasons.”
At the hearing, both the applicant and the Minister were represented by respective Counsel. Before considering the applicant’s grounds, the following provides useful background.
First, the applicant is a citizen of Bangladesh. While in Australia he applied for the visa on 3 December 2012. That is, a student visa for temporary stay in Australia.
Second, the specific facts relevant to the disposition of the current application to the Court are as follows. To have been granted the visa the applicant was required to satisfy, at the time of decision, the requirements set out at cl.573 of Schedule 2 to the Regulations. This included cl.573.224, which required, relevantly, that the applicant satisfy public interest criterion (“PIC”) 4020.
At the relevant time, PIC 4020(1) was in the following terms:
“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.”
A “bogus document” was defined in s.97 of the Act at the relevant time as:
“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 that 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 relevant time, PIC 4020(4) of the Regulations was in the following terms:
“4020 (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;
justifying the grant of the visa.”
Third, before the Court, the applicant did not contest that a “bogus document” had been provided. The applicant’s arguments therefore, were said to involve PIC 4020(4)(a) and (b) of the Regulations.
Fourth, it is of assistance in understanding the grounds of the application to the Court, to have regard specifically to the following from the Tribunal’s decision ([16] at CB 183 to [17] at CB 184):
“[16] The Tribunal has considered whether there are compelling circumstances which affect the interests of Australia. The applicant provided no evidence to indicate that such conditions existed in his case and the Tribunal finds that the waiver in PIC 4020(4)(a) does not apply in the present matter.
[17] The Tribunal has considered whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, which would justify the granting of the visa. The applicant claims that he has a close bond with his employer of four years and she relies on him in the running of her business and with other matters. The Tribunal accepts that a bond has developed between the applicant and his employer. It accepts that his employer has come to rely on him. However, the Tribunal is not satisfied that the assistance, support, and companionship which the applicant is providing to his Australian citizen employer is of such nature or extent as to impact significantly on that person’s well-being or business activities if the applicant were no longer available to provide it. The Tribunal is not satisfied that the circumstances described by the applicant constitutes compassionate or compelling circumstances for the purposes of PIC 4020(4)(b). On that basis the Tribunal finds that the requirements of PIC 4020(1) should not be waived.”
Grounds one and two are interrelated. Ground one asserts that the Tribunal misunderstood the function of “judicial review” in respect of another decision of the Tribunal. The particulars assert that the misunderstanding is that the Tribunal considered that just because Courts on judicial review had not found jurisdictional error in respect of certain Tribunal decisions, this did not mean that the Courts “endorsed” the reasoning in those Tribunal decisions. It is not entirely clear what jurisdictional error is alleged.
Ground two asserts that the Tribunal misinterpreted the meaning of “compelling circumstances that affect the interests of Australia” as set out in PIC 4020(4)(a) of the Regulations. The complaint is that the Tribunal applied an “unjustifiably narrow test” of what the interests of Australia might be.
The applicant’s written submissions explained the ground as follows. The Tribunal’s legal error is said to be that it failed to consider, or properly consider, the exceptions set out at PIC 4020(4)(a) of the Regulations. It is to be remembered that, amongst other things, to be successful in an application for a visa, the applicant’s case must contain no evidence that a bogus document or information has been given by the applicant (PIC 4020(1) of the Regulations).
In the current case, the Tribunal found that a bogus document had been given to the department, and therefore, the applicant did not meet PIC 4020(1) of the Regulations. That is not contested by any of the grounds.
However, this requirement can be waived if the decision-maker is satisfied that there exist “compelling circumstances” that affect the interests of Australia (PIC 4020(4)(a) of the Regulations).
The applicant, through his migration agent, had previously submitted to the Tribunal that the applicant, who had been in Australia as a student, had been working for his then “current employer” for a number of years and played a vital role in the Australian business. His departure would have (see CB 131.6):
“… significant detrimental effect on the Australia business. Where we submit there are compelling and compassionate circumstances effecting the interests of Australia and sufficient ground for PIC 4020 waiver.”
[Errors in original.]
The applicant submits that the Tribunal approached the relevant consideration of PIC 4020(1)(a) of the Regulations by simply relying on the Court’s finding of no jurisdictional error in Vyas and Mudiyanselage. These were cases in which the applicants had similarly put forward the importance of their employment to an Australian employer. The applicant submits that the Tribunal found, as did the “Tribunals” in those cases, that these circumstances were not “compelling”, or for that matter, “compassionate”.
That is, the Tribunal did not consider the applicant’s case with a focus on his circumstances, but simply “imported” a finding from the other two cases in which the Courts had found no jurisdictional error.
I do not agree that the applicant’s submission represents a fair reading of the Tribunal’s approach and analysis. The applicant’s submission is, in effect, that the Tribunal simply “copied” the approach in the other two cases. That is, the Tribunal said the Courts had found that the respective Tribunals’ reasoning in those cases did not contain error, and the Tribunal determined the applicant’s case simply on that basis.
However, a fair reading reveals that the Tribunal properly commenced its analysis by focusing on the terms “compelling” and “compassionate” circumstances as they appear at PIC 4020(4) of the Regulations. It found that these terms were not defined in the Act. There is no legal error in that finding.
It then looked to relevant judicial consideration. In that context, it found that in both Vyas and Mudiyanselage, the approach of the relevant Tribunals as to what may or may not constitute “compelling or compassionate circumstances”, was found to be without legal error.
I cannot see that the Tribunal made any finding, or proceeded on the basis that in light of the judicial review of Vyas and Mudiyanselage, the applicant in the current case could not succeed in arguing “compelling” or “compassionate” circumstances by relying on his employment in Australia or relying on the assertion that the employment was in the “interests of Australia”.
The reason that the Tribunal found adversely to the applicant was not, as is now proposed by the applicant, some “automatic” application of the findings in these other cases. Rather, that in the applicant’s case, for the purposes of PIC 4020(4)(a) of the Regulations, the applicant provided “no evidence” to indicate that there were “compelling circumstances which affect[ed] the interests of Australia” ([16] at CB 183).
As set out above, before the Court, the applicant made reference to his submissions made by his representative to the Tribunal. It is the case that distinctions between submissions and evidence may not be helpful in certain circumstances in cases of this type (see Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 and Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99).
However, in my view, the circumstances of this case present a clear distinction. The Tribunal did not find that the applicant made no claim, nor did it overlook the claim that the applicant argued that his employment was in the “interests of Australia” within PIC 4020(4)(a) of the Regulations.
The Tribunal found in considering this claim, that there was no evidence to support it. That finding was reasonably open to the Tribunal to make on what was before it. While the applicant provided documentary evidence of his claimed value to his employer (see CB 165 to CB 171) it was reasonably open to the Tribunal to find that this was not evidence that was relevant to the question posed by PIC 4020(4)(a) of the Regulations.
Before the Court, the applicant referred to Raza v Minister for Immigration & Anor [2015] FCCA 1623 at [20] - [23] (“Raza”), where reference is made to Vyas, Chand & Ors v Minister for Immigration& Anor [2014] FCCA 751 (“Chand”) and Kandel v Minister for Immigration & Anor [2014] FCCA 1479 (“Kandel”). The conclusion in Raza at [23] is as follows:
“The judgments of this Court in Chand, Vyas and Kandel are consistent with the meaning of ‘the interests of Australia’ as connoting a more significant, objective and public interest than that associated with mere employment in Australia: Kandel at [22] per Judge Lucev, citing Re Minister for Immigration, Local Government & Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82 at 87 per Einfeld J, cited with approval in Lin v Minister for Immigration & Citizenship & Anor [2009] FCA 494; (2009) 176 FCR 371 at [94] per Foster J. That rationale must apply with even more force here where the person concerned, although a qualified chef, does not appear to have any tertiary qualifications related to his desire to enter the field of occupational health and safety: CB 118-119 at [21] and [22].”
The applicant also referred separately to Re Minister for Immigration, Local Government & Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82 (“Roberts”) (also referred to in Raza, see above) at [21]:
“It seems to me that the term ‘activities beneficial to the interests of Australia’ means something in the nature of activities which provide some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia, even if of a general or non-specific character, and means more than the private interests of the respondent. The section requires some objective benefit to Australia.”
It is difficult to see how Raza, Chand, Vyas and Kandel could be of assistance to the applicant in the current case. As the Minister submitted, in each of those cases, the relevant Tribunal found, as a matter of fact, that each of the applicants in those cases who sought to rely on employment in a small business (as in the current case), did not mean that such employment was in the “interests of Australia”. On judicial review, no legal error was found in this approach.
While the applicant referred to what was generally set out in Roberts, what is extracted above at [46] is in my respectful view, consistent with the other authorities.
On a fair reading, the Tribunal did not find that the applicant as an employee of a small business (cafe) could ever meet the standards set out at PIC 4020(4)(a) of the Regulations. Rather, as set out above, it found no evidence had been presented that there were “compelling circumstances that affect the interests of Australia” that called for the waiver set out at PIC 4020(4)(a), that is, the waiver of PIC 4020(1) of the Regulations. Ground one is not made out.
In relation to ground two, the applicant’s argument was that the Tribunal adopted a “restrictive” or narrow approach to what may constitute “the interests of Australia” as it appears in PIC 4020(4)(a) of the Regulations.
The applicant’s submissions directed attention to the transcript of the Tribunal hearing (T3 line 17 to line 21):
“[Member] Now, there is a section of the Act that basically says that these conditions or requirements can be waived under certain circumstances. Those conditions are when there are compelling circumstances that affect the interests of Australia – now, that means Australia as a nation, so we’re talking about bilateral relations and trade with other nations and things like that…”
The complaint was that the state of the law was such that the Tribunal was in error to proceed on the basis that employment in a small business could never be in the interests of Australia.
The argument is that, what is reproduced at [51] above, reveals that, on the evidence before the Court, the only reference to what the Tribunal member considered the phrase to mean, is what was said at the Tribunal hearing. There is no “explanation” for this phrase, or what the Tribunal understood of its meaning, in the decision record.
It is the case that the Tribunal’s decision record does not contain any express exposition by the Tribunal member of what is meant by the phrase “in the interests of Australia” as it appears at PIC 4020 (4)(a) of the Regulations.
However, the decision record, as set out above, did make reference to various Court authorities that considered Tribunal decisions where the matter of the waiver of PIC 4020(1), including what was “in the interests of Australia” for the purposes of PIC 4020(4)(a) of the Regulations, was also considered.
One relevant point drawn from the authorities by the Tribunal, was that there was a distinction to be made between the disadvantage to an Australian business in “losing” an employee, and circumstances which affect Australia.
This distinction, broadly, is reflected in the difference between PIC 4020(4)(a) and (b) of the Regulations. The Tribunal addressed the first at [16], and the second at [17], of its decision record (at CB 183 to CB 184).
As set out above at [51], what the Tribunal sought to explain to the applicant at the hearing, and as the Minister submitted, was not an “unfair”, or for that matter an “incorrect”, view of what was said in the authorities relied on by the Tribunal. I cannot see that the Tribunal fell into legal error in relation to its understanding of the relevant test. Ground two is also not made out.
Ground three asserts that the Tribunal failed to provide an explanation for its finding that there was there were no “compelling circumstances” affecting the interests of Australia. This was said to be in the face of the applicant’s submissions that there were such circumstances. The applicant’s ground proposes that in these circumstances the inference should be drawn that the Tribunal had no such reasons.
The ground as pleaded, given the specific reference to “the interests of Australia”, appears to direct the ground to PIC 4020(4)(a) of the Regulations. There is no reference in the ground, or the particulars, to “compassionate or compelling circumstances” affecting the interests of those mentioned in PIC 4020(4)(b) of the Regulations.
However, in written submissions the applicant’s explanation of the ground sought to expand the basis of the alleged legal error to include what was said to be the “bland finding” by the Tribunal in relation to PIC 4020(4)(b) of the Regulations ([32] of the applicant’s written submissions).
Attention, therefore, was directed to both [16] and [17] of the Tribunal’s decision (see above at [28]). In oral submissions, the argument appeared to take a different approach (see further below).
The applicant’s written and oral submissions made reference to s.430 of the Act to argue that the Tribunal is obliged, in its setting out of its reasons for decision, to refer to evidence on which the findings of fact were based. I should note that in written submissions both the applicant and the Minister referred to s.430 of the Act. The Court ultimately understood the relevant reference to be to s.368 of the Act.
The applicant’s argument was ultimately explained as follows. The Tribunal addressed PIC 4020(4)(a) and (b) of the Regulations respectively at [16] and [17] of its decision record (CB 183 to CB 184). The Tribunal gave reasons for its concluding finding in [17]. But in comparison with this gave no “reasons” for its consideration at [16] (at CB 183).
The applicant’s ground is not made out for the following reasons. First, the Tribunal did give a sufficient, albeit brief, reason for its finding at [16] (at CB 183) in relation to PIC 4020(4)(a) of the Regulations. That is, there was no “evidence” provided by the applicant to indicate that “compelling circumstances that affect the interests of Australia” existed.
Before the Court, the applicant pressed that an argument in support of this proposition was made in the representative’s submissions to the Tribunal (reproduced at CB 131). The argument was that the letter “generically” refers to PIC 4020 and therefore what is written there “encompassed” both PIC 4020(4)(a) and (b) of the Regulations.
Even further to beyond what is set out above, it was reasonably open to the Tribunal to find that the assertion in the letter that the applicant “plays a vital role in the Australian business” was not evidence of what was in “the interests of Australia”.
Further, merely using the phrase “Australian business” does not elevate this submission to even an assertion relevant to the “interests of Australia”. As the letter goes on to say the applicant’s “departure would have significant detrimental effect on the Australia (sic) business” (CB 131.7). There was nothing on the evidence before the Tribunal to say that the interests of a specific small business, albeit a business in Australia, was an assertion that equated to the “interests of Australia”.
This is plainly focused on the specific business, and says nothing about the “interests of Australia”. Whether this is a submission, or in some way could be said to be “evidence”, it is not evidence of any indication that there are “compelling circumstances that affect the interests of Australia”.
Second, in his submissions the applicant relied on Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 (“SZLSP”) at [43] for the proposition that the Tribunal is required to set out, in its decision record, the evidence on which its findings of fact were based.
In the current case, the relevant finding at [16] (at CB 183) was that there was an absence of evidence provided by the applicant that came within the term “compelling circumstances that affect the interests of Australia”. This is sufficient to find that there was an “identified basis” for the Tribunal’s conclusion in relation to PIC 4020 (4)(a) of the Regulations (SZLSP at [94]).
Third, the applicant’s submission to the Court, in part, was that the reasoning at [16] (at CB 183) was brief. As the Minister submits, brevity in the Tribunal’s published reasons, of itself, is not a breach of s.368 of the Act (SZALW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1690 at [29]).
Fourth, I did not understand the applicant’s submissions to seek to impugn [17] (at CB 184). However, for the sake of completeness, I agree with the Minister’s submissions that the applicant’s description of the reasoning as being “bland” at [17] (at CB 184) was not a fair description. The Tribunal dealt with the material before it. The reasons were sufficient to satisfy s.368 of the Act.
Fifth, and ultimately, no jurisdictional error is revealed simply where all that is asserted is a breach of s.368 (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407).
None of the applicant’s grounds are made out. It is appropriate that the application to the Court be dismissed. I will make the appropriate order.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 22 December 2016
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