Farrell Mohan v Minister for Immigration, Citizenship, and Multicultural Affairs

[2023] FedCFamC2G 977

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Farrell Mohan v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FedCFamC2G 977

File number(s):	PEG 204 of 2022
Judgment of:	JUDGE STREET
Date of judgment:	10 August 2023
Catchwords:	MIGRATION – ADMINISTRATIVE LAW- no jurisdictional error
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	44
Date of hearing:	10 August 2023
Place:	Sydney
Applicant:	Appeared in person
Counsel for the Respondent:	Mr T Lettenmaier
Solicitor for the Respondent:	Ms G Ellis

ORDERS

PEG 204 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AARON FARRELL MOHAN

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS AND ANOR

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	10 AUGUST 2023

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Court orders the Applicant to pay the Respondent’s cost, fixing that at $7,853.

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).

EX TEMPORE REASONS FOR JUDGMENT 10 AUGUST 2023

JUDGE STREET

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth), in respect of a decision of the Administrative Appeals Tribunal made on 21 September 2022, affirming a decision of the Delegate not to grant the Applicant an employer nomination class E in subclass 186 visa in the direct stream.

2. The Applicant is a citizen of Northern Ireland, and the Applicant initially arrived in Australia on 16 July 2015, albeit under the name of his United Kingdom passport, which was different to that of his Northern Ireland passport, and was removed from Australia on 20 January 2016.

3. On 28 September 2016, the Applicant arrived in Australia as the holder of a working holiday visa under his Irish passport, with a different identity but the same date of birth. On 19 September 2017, the Applicant lodged a working holiday extension subclass 417 visa, which was granted, and on 25 September 2018 he applied for the subclass 186 visa, the subject of the Tribunal’s decision.

4. On 4 July 2019, the Tribunal invited the Applicant to comment on information in relation to what was declared or not declared in respect of his working holiday extension subclass 417 visa. The Tribunal identified the PIC 4020 (1) criteria, and the Applicant provided to the Tribunal two statutory declarations, one addressing a particular incident, and the other identifying his holding of two different passports and providing incorrect information.

5. The Applicant was invited to comment on the adverse information, and on 13 March 2020, a Delegate refused the grant of the visa. On 4 April 2020, the Applicant applied to the Tribunal for a review. Consistent with its statutory obligations, the Tribunal invited the Applicant to attend a hearing on 20 September 2022 by a letter dated 24 August 2022. Further information was provided by the Applicant in relation to that review, and on 20 September the Applicant, together with six witnesses, attended the hearing, together with the benefit of his representative, to give evidence and present arguments. 

6. On 21 September 2022, the Tribunal affirmed the decision. The Tribunal identified in its reasons the background to the review, and identified the criteria in relation to public interest 4020 that was required under clause 186.213 for the grant of the visa. The Tribunal also identified that there can be a waiver under PIC 4020 (4) if there are certain compelling or compassionate reasons for justifying the granting of the visa. 

7. The Tribunal annexed to its reasons incorporating the same an attachment setting out 4020 and s 5 of the Migration Act 1958 (Cth). The Tribunal turned to the issue of whether the Applicant had provided a bogus document, and the need for an element of fraud or deception. The Tribunal identified the requirement in relation to waiver, and that the Tribunal must be satisfied that there are compassionate or compelling circumstances, and then exercising a discretion whether or not, having regard to those circumstances, it should waive that criteria.

8. The Tribunal identified the nature of the expressions compelling circumstances as well as the meaning of compassionate or compelling circumstances. The Tribunal was not satisfied that the requirements of PIC 4020 (1) and (2) should be waived. 

9. The Tribunal identified that it was not satisfied it had been presented with sufficient evidence that there are compelling circumstances that affect the interests of Australia. The Tribunal identified the material in relation to the Applicant’s contributions in Australia, and the statutory declarations that were provided, his working contribution, and the limited number of mechanics in Western Australia, as well as the statutory declaration in relation to the positive contribution to society that the Applicant had made. The Tribunal also identified material in an application from the Applicant’s brother, and the value he contributes to both his brother and the brother’s family, and the adverse impact if he is not able to stay in Australia, particularly in relation to the Applicant’s two nieces.

10. The Tribunal had sympathy for the Applicant’s circumstances and referred to the circumstances not reaching the bar needed to satisfy the Tribunal that there are sufficient compassionate or compelling circumstances that affect the interests of an Australian citizen, or at least, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa.

11. The Tribunal made reference to the statutory declaration from the Applicant’s Australian resident sister-in-law, and a statutory declaration from a work colleague, as well as from neighbours and from a local cricket club in relation to the contribution by the Applicant, and as well as from three other people in relation to community contribution. However, the Tribunal found that there was insufficient evidence that these are 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 the visa.

12. The Tribunal identified that it had put the adverse material at the hearing pursuant to s 359AA of the Migration Act 1958 (Cth), to the Applicant identifying the relevance of the adverse information, and that the Applicant was given the option to respond to the information later, and that the Applicant chose to comment and respond during the hearing. The Applicant explained that he wants another chance to stay in Australia, and apologised for his poor choices, acknowledging and apologising for his deliberate actions, which resulted in him being unable to meet the requirements of PIC 4020(1).

13. The Applicant explained that he understood it was wrong, and accepted that he had made a poor decision in relation to his visa by utilising two different passports in order to gain access to Australia, and that he knew it was not the correct thing to do.

14. The Applicant identified the impact that it would impose on his brother and nieces, and that he was trying to make amends by being the best person he could be, and contributing to those around him.

15. The Applicant explained his early life in Ireland, and the Tribunal accepted that the Applicant is genuinely remorseful and regrets his actions. The Tribunal acknowledged that the Applicant had a short-term focus upon his immediate needs, and a desire to return to his family in Australia, and the Tribunal accepted the Applicant had genuinely accepted responsibility for his wrongdoing in providing false information in his visa applications.

16. The Tribunal, however, found it did not excuse the fraudulent activity undertaken by the Applicant. The Tribunal acknowledged that there will be dislocation of family and social relationships, and work links and friendships if the Applicant is required to leave Australia.

17. The Tribunal found that it had not been presented with sufficient evidence needed to satisfy the concepts of compassionate or compelling circumstances at the level needed to enliven PIC 4020(4)(a) or (4)(b). The Tribunal found that it had not been provided with sufficient cumulative evidence that there are compelling circumstances that affect the interests of an Australian, or sufficient evidence that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.

18. The Tribunal found that the requirements of PIC 4020(1) should not be waived, and found that the Applicant did not satisfy the requirements of PIC 4020 for the purpose of clause 186.213, and affirmed the decision under review.

19. At the commencement of this hearing, the Court explained to the Applicant the nature of the hearing. The Applicant confirmed he understood the explanation given by the Court. The Applicant also confirmed that he had received the Minister’s submissions. The Applicant chose not to put any submissions in support of the grounds in his application, or as to why he otherwise believed the Tribunal’s decision was unlawful or unfair, or why it was wrong.

20. The grounds in the application are as follows:

    Ground 1

    (1)The Frist Respondent erred in law by failing to apply the correct standard of proof in the Applicant’s assessment of evidence given at the Tribunal:

    (a)The First Respondent approached its considerations of whether the applicant submitted evidence to the correct standard of proof on the basis of a misconception and incorrect assumption of law.

    (b)The First Respondent’s reasoning exposes:

    (i)That the evidence and facts provided, not detracting from failure to lawfully consider as the evidence properly, as provided below, were assessed to an unreasonable and elevated standard of proof:

    (ii)A flawed and unreasonable interpretation of the standard applicable to the assessment of the evidence; (“not enough evidence”)

    (iii)Flawed and unreasonable understanding of the standard of proof dischargeable by the Applicant; and

    (iv)Flawed and unreasonable assessment of the evidence in particular erroneous understanding of the term “compassionate or compelling”.

    (2)The First Respondent failed to consider and assess the evidence positively to reasonable standard of proof is further evident by:

    (a)The remarks that the Tribunal “does not excuse the fraudulent activity undertaken by the visa Applicant”.

    (b)With the same elevating the Applicant’s level of proof of what is “compassionate” or “compelling” circumstances.

    Ground 2

    (3)The First Respondent erred in consideration of the facts of what is “compassionate” and “compelling” circumstances by failing lawfully to consider all the evidence.

    (4)The Applicant provided the necessary evidence, including evidence that fits the terms “compassionate” and “compelling”, which was seen as “not enough”.

    (5)The Tribunal failed to adjudicate with a view that the evidence is not sufficient and further noted that it does not satisfy the concepts of “compassionate” and “compelling” circumstances.

    Ground 3

    (6)The First Respondent erred in law and has failed to comprehend the legal and evidentiary requirement to discharge the burden of proof on evidence on what is “compassionate” and “compelling” circumstances.

    (7)The First Respondent failed to fully understand the concepts of “compassionate” and “compelling” circumstances against evidence at the Tribunal.

21. In relation to ground 1, it would be an error if the Tribunal applied a standard of proof or a burden upon the Applicant.  The Tribunal’s obligation is to determine whether it is satisfied, in the inquisitorial hearing, of the relevant criteria for the grant of the visa.  There is no burden on the Applicant in that regard in a visa of this kind, leaving aside cases where s 4AAA has work to do in relation to protection visas.

22. The ground advanced is not the subject of submissions. However, the Court has taken into account a close analysis of the language used by the Tribunal. The Tribunal, in paragraph 13, refers to not having been provided with sufficient evidence. The reference to sufficient evidence does not identify that the Tribunal was imposing a burden upon the Applicant or was applying an onus in relation to the criteria. The reference to sufficient evidence is consistent with the Tribunal correctly applying its function in determining the correct decision on the material before it in respect of the criteria.

23. The Court does not accept that the reference to sufficient evidence identifies the Tribunal erred in its statutory function in the conduct of the review, or applied any onus or burden upon the Applicant.

24. The Tribunal also made reference, in paragraph 20, to having sympathy for the Applicant’s circumstances, but referred to them not reaching the high bar needed to satisfy the Tribunal that there are sufficient compassionate or compelling circumstances.

25. The Tribunal’s reasons are not to be read with a keen eye for error. The reference to the high bar is a reference to the criteria in PIC 4020(4), which is not unfairly described as being a high bar in relation to the waiver.

26. The Court does not construe the Tribunal’s reasons in the reference to a high bar as one imposing a burden or onus in relation to the evidence. On a fair reading, the Tribunal understood its function in needing to determine whether it was satisfied on all the material before it that there are sufficient compassionate or compelling circumstances that affect the relevant interests that justify discretionary waiver of the criteria.

27. There is also the reference in paragraph 49 to the Tribunal not being presented with sufficient evidence needed to satisfy the concepts of compassionate or compelling circumstances at the level needed to enliven PIC 4020(4)(a) or (4)(b). There appears to be an obvious typographical error in the reference “of”  which was clearly intended to mean ‘or”. The Tribunal’s earlier reasons made clear that the Tribunal understood the alternatives.

28. The Court, again, is not to read the Tribunal’s reasons with a keen eye for error. The reference to being not presented with sufficient evidence should not be construed as the Tribunal misunderstanding its function, and imposing an onus or burden upon the Applicant.

29. The Tribunal, in paragraph 50, also referred to not being provided with sufficient cumulative evidence that there are compelling circumstances that affect the interests of the relevant persons, or sufficient evidence that there are compassionate or compelling circumstances that justify granting of the visa.

30. The Tribunal and the Court do not accept that the reference in paragraph 50 to being provided with sufficient cumulative evidence or sufficient evidence reflect the Tribunal misunderstanding its function in the conduct of the review, or reflect any imposition of an onus or burden upon the Applicant.

31. Accordingly, the Court does not accept that there was some application of a standard of proof by the Tribunal as alleged in ground 1. 

32. For the reasons I have explained, paragraph 1 (a) is misconceived in suggesting that there was a correct standard of proof. There was no misconception by the Tribunal in properly performing its statutory function and in its fact-finding in relation to the waiver of the PIC 4020 criteria, and no erroneous assumption of law.

33. In relation to ground 1(b), no evidence or facts have been identified that the Tribunal failed to take into account. The Tribunal’s reasons reflect a genuine intellectual engagement with the whole of the Applicant’s claims and evidence. The Tribunal’s reasoning reflects a logical and intelligible justification for the adverse decision to which a reasonable decision maker could have come and the Court does not accept that the Tribunal misunderstood its statutory function in the conduct of the review, and finds no flawed or unreasonable interpretation as alleged in paragraph 1(b)(ii) or 1(b)(iii), or 1(b)(iv). No jurisdictional error is made out by paragraph 1. 

34. In relation to paragraph 2, this again incorporates an erroneous assertion of a standard of proof, and for the reasons already given, the Court is satisfied the Tribunal did not misunderstand its statutory function in the conduct of the review, and did not impose a burden or onus upon the Applicant, nor on the face of the material before the Court, did the Tribunal fail to consider and assess the whole of the evidence in determining whether there were compassionate or compelling circumstances of the kind required.

35. In relation to the reference to excusing the fraudulent activity in paragraph 2 (b), that is not an expression that shows some misapplication by the Tribunal in the conduct of its review function. The Applicant’s material before the Tribunal clearly identified that the Applicant understood what he was doing was wrong, and he used a separate passport deliberately. The Applicant’s own acknowledgment in the material before the Tribunal properly identified a basis for the Tribunal to comment on the significance of his fraudulent activity in the use of a second passport, and not disclosing the earlier removal from Australia.

36. The reference to excuse does not suggest that the Tribunal misunderstood its function or imposed an onus of burden upon the Applicant.

37. For the reasons already given, the Court does not accept that the Tribunal elevated or imposed a burden or standard of proof upon the Applicant, as alleged in paragraph 2(b). No jurisdictional error is made out by paragraph 2. No jurisdictional error is made out by paragraphs 1 or 2 of ground 1.

38. In relation to paragraph 3 in Ground 2, the Tribunal correctly identified the relevant law in relation to the meaning of compassionate and compelling, and to the extent that there is an assertion of a failure in the consideration of facts, it appears to be inviting impermissible merits review.

39. As identified, the Tribunal had a genuine intellectual engagement with the Applicant’s claims and evidence, and there is no evidence that has been identified that the Tribunal failed to consider. No jurisdictional error is made out by paragraph 3.

40. In relation to paragraph 4, this again appears to be an invitation to impermissible merits review.  For the reason already given, it was for the Tribunal to determine whether it was satisfied, on the evidence before it, that there were compelling or compassionate circumstances of the relevant kind, and the adverse finding does not reflect a failure by the Tribunal to correctly and properly discharge its statutory function in determining whether the criteria of compassionate or compelling circumstances existed. No jurisdictional error is made out by ground 4.

41. Paragraph 5, again, appears to be an invitation to impermissible merits review. The Tribunal did determine whether there were compassionate or compelling circumstances, and found that there were not. No jurisdictional error is made out by paragraph 5. No jurisdictional error is made out by ground 2.

42. In relation to paragraph 6 in ground 3, this appears to be a repetition of the earlier assertion of the burden of proof, and for the reasons earlier given, the Tribunal did not apply a burden of proof, and no jurisdictional error is made out by paragraph 6.

1. In relation to paragraph 7, this appears to either be an invitation to merits review, or a repetition of the asserted error in paragraph 3 which has not been made out. The Tribunal correctly identified the relevant law in relation to compassionate or compelling circumstances, and on the face of the Tribunal’s reasons, correctly identified the relevant law. It was for the Tribunal to determine whether or not, in all the circumstances, the criteria for waiver was met. No jurisdictional error is made out by paragraph 7. No jurisdictional error has been made out in ground 3.

2. The Court makes the above orders. 

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       29 November 20232